Volume 2020, No. 4

PDF linkTable of Contents


PDF linkThe Non-Adversarial Fiction of Immigration Adjudication

by Beth K. Zilberman

Amid the Trump Administration’s crackdown on immigration, policies aimed at constructing an “invisible wall” in the legal immigration system have been overshadowed by atrocities at the border. As such, immigration agencies have quietly and effectively created barriers to lawful immigration. Significantly, increased enforcement policies and an emphasis on “securing the homeland” within the United States Citizenship and Immigration Services (USCIS), the agency charged with administering the legal immigration system, has turned what once was a pathway to immigration status and citizenship into a pipeline to deportation proceedings.

This Article is the first to analyze a model of adjudicating immigration benefits that requires individuals to appear before a USCIS decision-maker. In so doing, it makes an important contribution in bridging immigration and administrative law scholarship through analyzing the procedural design of an often-overlooked mass adjudication system. Recently, administrative law scholarship has adopted a new approach to categorizing informal agency adjudications that do not come within the ambit of the Administrative Procedure Act’s formal hearing requirements. Within this new framework, the vast and amorphous nature of the most informal hearing category, which includes USCIS proceedings, is difficult to assess as a group. Therefore, case studies are necessary to glean insight into what can otherwise be an elusive procedural black hole with monumental consequences for private parties in agency adjudications.

This Article provides such a case study by utilizing agency adjudication theories concerning procedural protections as a framework to analyze existing safeguards for applicants in USCIS’s informal adjudication system. It exposes deficiencies within the current model that have been amplified by recent anti-immigration, pro-enforcement policies. In so doing, it highlights the implications of flexibility and deference given to agencies to determine sufficient procedural safeguards for private parties appearing before their adjudicators. As this Article demonstrates, strengthening procedural safeguards would bolster the system’s integrity, legitimacy, and perception of fairness, while bringing procedures in line with current recommendations and best practices for informal agency adjudications.

PDF linkOffers You Can’t Refuse: Post-Hire Noncompete Agreement Insertions and Procedural Unconscionability Doctrine

by N. Brock Enger

America’s 21st Century offers, among other things, troublesome conditions for employees. Globalization and its accompanying race to the bottom; right-to-work laws and the de-unionization of workplaces; technological innovations that replace human capital overnight—these have all resulted in a highly competitive environment that is fraught with uncertainty, powerlessness, pressure, and ambiguity. Among these compounding factors weighing on the American worker is the noncompete agreement, especially the one that employees have no real choice but to endorse. Justice Brandeis famously quipped that “sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Accordingly, first and foremost, this Article sheds light on a common practice among American employers involving an offer to an existing employee for an employment contract modification under conditions that the employee has no real choice but to accept. Second, in line with suggestions provided by leading contracts scholar Melvin Aron Eisenberg, this Article offers a legally viable solution to the identified problem using the unconscionability paradigm—specifically designed to be implemented in Wisconsin. It develops these suggestions into a model based on observations from Chief Justice Shirley Abrahamson in the landmark case, Runzheimer International, Ltd. v. Friedlen. While based on this Wisconsin case, this model can be implemented beyond Wisconsin’s borders. It is the author’s hope that as a result of publication, greater visibility of the problem will result in progress toward greater reform.


PDF linkConscience Shocking in the Age of Trump

by Lee Farnsworth

The Due Process Clause has both a procedural component, which ensures adequate procedures prior to the deprivation of a right, and a substantive component, which recognizes some rights so fundamental that no amount of procedure is sufficient to justify their deprivation. The substantive Due Process Clause is the source of vital protections for a range of rights and is often especially important for marginalized groups. But recognition of those rights is only part of the battle. For those rights to count, they must be enforceable in court.

One difficulty surrounding judicial review of alleged substantive due process violations is that the Supreme Court has held that the constitutional inquiry differs depending on the type of action involved. In particular, “executive” deprivations of rights do not rise to the level of a constitutional violation unless they can be said to “shock the judicial conscience.” The shocks-the-conscience test has generated some problems. Most obviously, there is the issue of deciding how to determine whether any particular violation is sufficiently shocking. But, in addition, there is the threshold problem of deciding what counts as “executive” action and thus triggers the test in the first place.

This Essay examines that latter difficulty in detail. It provides examples of judicial confusion in applying the test in the context of real cases and chronicles a string of recent challenges to Trump Administration actions that seem to have applied the heightened standard unnecessarily, often at the urging of the government itself. In response, this Essay suggests reframing the executive/legislative dichotomy and moving to a remedy-based standard. This Essay argues that such an approach would provide much-needed clarity as to when the shocks-the-conscience test applies while remaining consistent with the conceptual underpinnings of the test and the Court’s substantive due process case law.


PDF linkThe Cheese Stands Alone: Wisconsin’s “Quirky” Partial Veto In Its New Constitutional Era

by Alyssa LeRoy

Wisconsin occupies a unique position on the national stage as having one of the most powerful and expansive partial veto powers of any state. While the governors of most states use a pen to veto budget bills, the Wisconsin Governor holds a “pair of scissors,” allowing him to slash legislative enactments and piece together new law, subject only to the rarely successful two-thirds veto override. While constitutional amendments in 1990 and 2008 have constrained this power to prohibit the striking and stringing together of individual letters within words and the creating of a new sentence by combining parts of two or more words across sentences, the Governor can still create policies never intended by the Legislature through a creative cobbling together of words within a sentence.

In 1930, Wisconsin amended its constitution to create the partial veto, which allows the Governor to veto appropriation bills “in whole or in part.” In 1935, the Wisconsin Supreme Court first interpreted “part” using its broad dictionary definition, with no qualifications; the result is that the parts remaining after a partial veto must be a “complete, entire, and workable law.” After decades of ensuing court decisions expanding the partial veto, failed amendments, and partisan battles over the partial veto, the Legislature passed in 1990 and again in 2008 constitutional amendments constraining the power. Though 2020 was poised to see an overhaul in the partial veto jurisprudence, the court’s decision in Bartlett v. Evers and Wisconsin Small Businesses United, Inc. v. Brennan seemingly left the core of the partial veto power intact—but without the support of a majority rationale.

This Comment first argues that the court’s initial interpretation of “part” in 1935 ignored the textual and extrinsic clues indicating that the Legislature intended not to create a unique and broad gubernatorial tool, but instead intended to create an item veto (a common tool to strike individual appropriations), bringing Wisconsin in line with the thirty- seven other states that, at the time, had an item veto. This Comment then suggests, however, that in structuring the 1990 and 2008 amendments to prohibit specific partial veto practices, the Legislature enshrined into the constitution the court’s broad and erroneous definition of “part” as interpreted in 1935, precluding any future judicial return to the 1930 amendment’s original intended meaning. Consequently, though these modern amendments—and even Bartlett—provide some constraints on the partial veto, a return to the originally intended item veto must come through another constitutional amendment; until then, Wisconsin stands alone as the unique and “quirky” partial veto state.

PDF linkTaking Artificial Intelligence Beyond the Turing Test

by Patric M. Reinbold

Patentability under the 35 U.S.C. § 103 obviousness standard relies on the ability of a person having ordinary skill in the art; however, the involvement of artificial intelligence in the inventive process challenges that standard. A misconception of the current capabilities of AI leads to arguments of universal obviousness where an independent and creative AI dominates the inventive process. Fortunately, AI of such a caliber does not yet exist. Thus, the difficulty of defining the inventive entity threatens patent protection’s incentive to innovate but need not extinguish the right to patentability outright. Redefining the standard of obviousness and distinguishing the user’s contributions enable the patentability of inventions resulting from the use of AI as an innovative tool.

The proposed standard for the obviousness inquiry—a person having ordinary skill in AI—accounts for the inventor’s objectives, access to big and deep data, and knowledge of the existing datasets to control the form and operation of the machine learning resulting in AI-assisted inventions. Preexisting common law for patenting chemical compounds and the evolution of the obviousness test permit shifting the standard to overcome the statutory hurdles facing the patentability of AI-assisted inventions. However, shifting the level of ordinary skill in the art to the user does not permit the patentability of independent and autonomous inventions by inventive AI systems.

The standard proposed here turns on the effort exerted by the inventor in comparison to the AI system. The inventor’s control and design of the inventive process help to resolve the level of ordinary skill in the art for AI- assisted inventions by looking at the user’s starting point, motivation based on the prior art and data, reasonable expectation of success, and control over the inventive process. Thus, the user’s control defines the level of ordinary skill in the art and enables the trier of fact to refer to its established inquiries in determining obviousness.