Duke Law Journal

Articles

Jailhouse Immigration Screening
Eisha Jain
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Within the past decade, U.S. interior immigration enforcement has shifted away from the street and into the jailhouse. The rationale behind jailhouse screening is to target enforcement efforts on those who fall within federal removal priorities. This Article shows how a program undertaken with the stated aim of targeting immigration enforcement has had precisely the opposite effect: it has massively expanded the reach of immigration enforcement and created extended carceral treatment within the criminal justice system based on suspected immigration status. This approach, in turn, leads to removals that lack adequate process, are inaccurate, or that reflect underlying racial biases in criminal arrests. Jailhouse immigration screening resuscitates what is experienced as a punitive model of immigration enforcement but without the procedural protections that ought to accompany the criminal process. This approach imposes an enormous cost on racial minorities disproportionately subject to low-level arrest, and it cuts against immigration enforcement officials’ stated aim of targeting immigration enforcement. By laying bare how jailhouse screening extends the impact of criminal arrest, undermines due process, and magnifies racial disparities, this Article makes the case for uncoupling immigration screening from the jailhouse altogether. Barring that approach, arrested immigration screening from the jailhouse altogether. Barring that approach, arrested individuals are entitled to greater front-end procedural protections, including neutral review of immigration detainers.

Regulation and the Geography
of Inequality
Ganesh Sitaraman, Morgan Ricks & Christopher Serkin
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We live in an era of widening geographic inequality. Around the country, the spread between economically and culturally thriving places and those that are struggling has been increasing. “Superstar” cities like New York, San Francisco, Boston, and Atlanta continue to attract talent and grow, while the economies of other cities and rural areas are left behind. Troublingly, escalating geographic inequality in the United States has arrived hand in hand with serious economic, social, and political problems. Areas that are left behind have not only failed to keep up with their thriving peers; in many ways, they have stagnated and seen opportunities evaporate. At the same time, superstar cities are running up against extreme housing affordability problems, rendering middle-class life all but unsustainable. To make matters worse, the widening gulf between dynamic and stagnant places increasingly feeds into a democratic crisis of unrepresentative government at the federal level.

The dominant explanations for widening geographic inequality focus largely on inexorable economic trends. Forces like “agglomeration effects” and globalization have reshaped the economy, benefitting some areas and harming others. We think these explanations leave out a crucial factor: the effects of specific regulatory choices on economic geography. The Progressive Era and New Deal regulatory order in the United States promoted geographic dispersion of economic activity. The unraveling of this regulatory order around 1980 coincided with the reversal in geographic convergence and the beginning of an era of growing divergence. More specifically, regulatory policies in the areas of transportation, communications, trade, and antitrust helped construct an era of geographic convergence in the mid-twentieth century, and deregulation in those same areas contributed to the rise of geographic inequality over the last generation. Though the COVID-19 pandemic has produced unprecedented awareness of and interest in remote work—raising the possibility of greater economic dispersion—the extent to which this potential can be realized will likely also depend upon regulatory choices. To combat geographic inequality and its attendant downsides, we make the case for reincorporating geographic factors into federal regulatory policymaking in transportation, communications, trade, antitrust, and other domains.

Notes

The Fourth Amendment Limits of Facial Recognition at the Border
Emmanuel Abraham Perea Jimenez
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On any given day, hundreds of thousands of people enter the United States through ports of entry along the Mexican and Canadian borders. At the same time, the Department of Homeland Security (“DHS”) seizes millions of dollars’ worth of contraband entering the United States annually. Under the border-search exception, border officials can perform routine, warrantless searches for this contraband, based on no suspicion of a crime, without violating the Fourth Amendment. But as DHS integrates modern technology into its enforcement efforts, the question becomes how these tools fit into the border-search doctrine. Facial recognition technology (“FRT”) is a prime example. To date, no court—and few legal scholars—have addressed how the Fourth Amendment would regulate the use of FRT at the border. This Note begins to fill that gap.

This Note contends that, after Carpenter v. United States , the Fourth Amendment places at least some limits on the use of FRT at the border. Given the absence of caselaw, this Note uses a hypothetical border search to make three core claims. First—distinguishing between face verification and face identification—this Note argues that face identification constitutes a Fourth Amendment “search” only when the images displayed to a border official reveal “the privacies of life.” Second, because of its invasive nature, this form of face identification is a nonroutine border search and is unconstitutional when conducted without reasonable suspicion. Lastly, this Note concludes that a border official’s reasonable suspicion must be linked to a crime that bears some nexus to the purposes underlying the border-search exception.

Why Bartlett Is Not the End of Aggregated Minority Group Claims Under the Voting Rights Act
Scotty Schenck
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The 2020 election showed the importance of faith in the democratic system and the ability for citizens to cast a ballot for federal, state, and local races. After the election, state legislatures will be redrawing federal, state, and local electoral districts. Those new districts will affect the voting rights of nearly every American. This Note examines Section 2 of the Voting Rights Act of 1965, which has traditionally afforded minority group members the opportunity to challenge discriminatory electoral policies that thwart the ability “to participate in the political process and to elect representatives of their choice.” This is an important avenue that minority group members can seek to remediate biased districting processes.

Claims brought by one minority group at a time—such as a Black community suing to be a majority in a newly drawn electoral district after being discriminated against in the district drawing process—have been commonplace for several decades. But given the diversifying country, these standard challenges are becoming insufficient. A newer and more controversial theory pursued by litigants under Section 2 is the “aggregated claim”—which is a joint claim brought by two or more minority groups saying essentially, “We’ve been discriminated against collectively.” This Note asks the question of whether aggregated claims are permitted under Section 2 and argues that they are. In particular, this Note examines the impact of a 2009 Supreme Court case, Bartlett v. Strickland , on the viability of aggregated claims, and makes a novel argument based on statutory interpretation that such claims should be permitted.