De-carcerating the Immigration Enforcement System: Comments for Fact-Finding in Immigration Detention Reviews: Evidence Law meets Administrative Law’s panel on Tinkering at the Edges?

2021 ◽  
Author(s):  
Stephanie J. Silverman
Keyword(s):  
Immigration Enforcement ◽  
Immigration Detention ◽  
Evidence Law ◽  
Fact Finding

scholarly journals Coronavirus and Immigration Detention in Europe: The Short Summer of Abolitionism?

2021 ◽  
Vol 10 (6) ◽  
pp. 226
Author(s):  
José A. Brandariz ◽  
Cristina Fernández-Bessa
Keyword(s):  
Late Summer ◽  
European Countries ◽  
Immigration Enforcement ◽  
Racial Justice ◽  
Immigration Detention ◽  
Migration Policies ◽  
Potential Impact ◽  
Detention Facilities ◽  
Unexpected Consequences

In managing the coronavirus pandemic, national authorities worldwide have implemented significant re-bordering measures. This has even affected regions that had dismantled bordering practices decades ago, e.g., EU areas that lifted internal borders in 1993. In some national cases, these new arrangements had unexpected consequences in the field of immigration enforcement. A number of European jurisdictions released significant percentages of their immigration detention populations in spring 2020. The Spanish administration even decreed a moratorium on immigration detention and closed down all detention facilities from mid-spring to late summer 2020. The paper scrutinises these unprecedented changes by examining the variety of migration enforcement agendas adopted by European countries and the specific forces contributing to the prominent detention decline witnessed in the first months of the pandemic. Drawing on the Spanish case, the paper reflects on the potential impact of this promising precedent on the gradual consolidation of social and racial justice-based migration policies.

The explanationist revolution in evidence law

2019 ◽  
Vol 23 (1-2) ◽  
pp. 60-67 ◽  
Author(s):  
Amalia Amaya
Keyword(s):  
Alternative Interpretation ◽  
Revolutionary Change ◽  
The Core ◽  
Basic Distinction ◽  
Evidence Law ◽  
Fact Finding ◽  
Legal Proof ◽  
Probabilistic Criteria

According to Allen and Pardo, the field of evidence law has experienced a revolution -in Kuhn's sense- from probabilism to explanationism, which they identify with the relative plausibility theory. The explanationist revolution, argue Allen and Pardo, has placed explanationist -rather than probabilistic criteria- at the core of the fact-finding process and, in contrast to probabilism, has advanced a comparative understanding of the theory of legal proof. This paper develops an alternative interpretation of the explanationist revolution in evidence law. First, it elaborates on the concept of legal revolution and argues that it involves a kind of shift that is best characterized as a Hacking -rather than a Kuhnean- type of revolution and, thus, as an ‘emplacement’ instead of a ‘replacement’ revolution. Second, it claims that the shift from probabilism to explanationism involves a deep -genuinely revolutionary- change in the conception of rationality that is taken to govern the processes of evidence and legal proof. Other differences between probabilistim and explanationism, such as those mentioned by Allen and Pardo, are not central to the revolutionary shift, but rather emanate from this basic distinction. Last, it argues that the explanationist paradigm embraces, but cannot be reduced to, the relative plausibility theory; the identification of explanationism with the relative plausibility theory occludes the richness and possibilities harboured by the new, explanationist, paradigm.

A Right to Privacy and Confidentiality: Ethical Medical Care for Patients in United States Immigration Detention

2020 ◽  
Vol 48 (1) ◽  
pp. 161-168 ◽  
Author(s):  
Amanda M. Gutierrez ◽  
Jacob D. Hofstetter ◽  
Emma L. Dishner ◽  
Elizabeth Chiao ◽  
Dilreet Rai ◽  
...  
Keyword(s):  
United States ◽  
Homeland Security ◽  
Immigration Enforcement ◽  
Patient Privacy ◽  
Right To Privacy ◽  
Immigration Detention ◽  
Ethical Implications ◽  
United States Immigration ◽  
States Immigration ◽  
Privacy And Confidentiality

Recently, John Doe, an undocumented immigrant who was detained by United States Immigration and Customs Enforcement (ICE), was admitted to a hospital off-site from a detention facility. Custodial officers accompanied Mr. Doe into the exam room and refused to leave as physicians examined him. In this analysis, we examine the ethical dilemmas this case brings to light concerning the treatment of patients in immigration detention and their rights to privacy. We analyze what US law and immigration detention standards allow regarding immigration enforcement or custodial officers’ presence in medical exams and documentation of detainee health information. We describe the ethical implications of the presence of officers in medical exam rooms, including its effects on the quality of the patient-provider relationship, patient privacy and confidentiality, and provider's ability to provide ethical care. We conclude that the presence of immigration enforcement or custodial officers during medical examination of detainees is a breach of the right to privacy of detainees who are not an obvious threat to the public. We urge ICE and the US Department of Homeland Security to clarify standards for and tighten enforcement around when officers are legally allowed to be stationed in medical exam rooms and document detainees’ information.

scholarly journals The unintended consequences of US immigration enforcement policies

2021 ◽  
Vol 118 (21) ◽  
pp. e2103000118
Author(s):  
Emily Ryo
Keyword(s):  
United States ◽  
The United States ◽  
Unintended Consequences ◽  
Deterrent Effect ◽  
Immigration Enforcement ◽  
Immigration Detention ◽  
Enforcement Policy ◽  
The Us ◽  
Enforcement Policies ◽  
Us Immigration

US immigration enforcement policy seeks to change the behaviors and views of not only individuals in the United States but also those of prospective migrants outside the United States. Yet we still know relatively little about the behavioral and attitudinal effects of US enforcement policy on the population abroad. This study uses a randomized experiment embedded in a nationally representative survey that was administered in El Salvador, Guatemala, Honduras, and Mexico to analyze the effects of US deterrence policies on individuals’ migration intentions and their attitudes toward the US immigration system. The two policies that the current study examines are immigration detention and nonjudicial removals. The survey results provide no evidence that a heightened awareness of these US immigration enforcement policies affects individuals’ intentions to migrate to the United States. But heightened awareness about the widespread use of immigration detention in the United States does negatively impact individuals’ assessments about the procedural and outcome fairness of the US immigration system. These findings suggest that immigration detention may foster delegitimating beliefs about the US legal system without producing the intended deterrent effect.

How to Teach Factual Analysis: Assessing an Indian Evidence Law Course

2018 ◽  
Vol 5 (2) ◽  
pp. 122-136
Author(s):  
Ajay Kr Sharma
Keyword(s):  
Empirical Study ◽  
Positive Impact ◽  
Hybrid Approach ◽  
Teaching Experience ◽  
Analysis Methods ◽  
The Subject ◽  
Evidence Law ◽  
Fact Finding ◽  
Teaching Learning ◽  
Law Of Evidence

This article experientially narrates the innovative use of certain fact-finding and analysis methods, namely, ‘an investigation problem’, the Wigmorean chart method and the probability theory with Bayesian analysis (with the case law demonstrating its pragmatic application and limitation), by the author, an Indian law teacher, in teaching his ‘law of evidence’ course. This marks a departure from the conventional way of teaching evidence law in India, which presents its own challenges. In the course of this article, the author vividly shares his teaching experiences, discusses the academic resources used, highlights the key learning outcomes derived in administering these components, and delineates their overall positive impact on the learning of the subject. He further validates these experiences on the basis of the results of an empirical study conducted by him, in which a large number of his students voluntarily participated and gave their feedbacks. The results demonstrate the efficacy of these factual analysis methods individually, and their positive correlation with the increased understanding and knowledge of this course. This is descriptively demonstrated by the results obtained from Kendall’s Tau-b correlation which, along with the graphics, show a significant monotonic relationship between the said three methods and their cumulative contribution in terms of the overall learning of the subject. This empirical study also demonstrates an overall match between the author’s teaching experience as an evidence law teacher in teaching the avowed fact analysis methods, and his evidence law class’ experience as the students learning them, which is crucial for every effective teaching–learning exercise. After discussing important literature on teaching fact analysis and evidence law, the author concludes by justifying his overall use of the ‘hybrid approach’ in teaching his ‘law of evidence’ course. Consequentially, this study seeks to inspire other evidence law teachers to pedagogically assimilate similar methods in their curricula.

The Refoundation of Evidence Law

1996 ◽  
Vol 9 (2) ◽  
pp. 279-342 ◽  
Author(s):  
Alex Stein
Keyword(s):  
Upright Position ◽  
New Foundations ◽  
Core Principle ◽  
Evidence Law ◽  
Fact Finding

This article examines and criticizes the conventional evidence doctrine and its core principle (albeit with exceptions) of legally unregulated fact-finding. New foundations for evidence law are offered that reflect a principled allocation of the risk of error in conditions of uncertainty. Such conditions are present in virtually every litigated case. This article opposes the doctrine of ‘free proof’. That doctrine underlies the current flowering of discretion injudicial fact-finding and is responsible for the ongoing abolition of evidentiary rules. The evidence law theory developed in this article is of course itself theory-dependent. Far from claiming the theory here is uniquely correct rather than simply valid, I shall be satisfied by its survival as yet “another view of the Cathedral”. Nonetheless, evidence law as conventionally portrayed can hardly be compared with Monet’s Cathedral. It is conspicuously more like Pisa’s Leaning Tower. This article aims at returning the leaning tower of evidence law to an upright position.

Immigration Detention meets Evidence Law: a discussion paper

2021 ◽  
Author(s):  
Simon Wallace ◽  
Sean Rehaag ◽  
Benjamin L. Berger
Keyword(s):  
Discussion Paper ◽  
Immigration Detention ◽  
Evidence Law

scholarly journals Can there be a burden of the best explanation?

2018 ◽  
Vol 22 (2) ◽  
pp. 91-123 ◽  
Author(s):  
Gustavo Ribeiro
Keyword(s):  
Evidence Law ◽  
Civil Cases ◽  
Fact Finding ◽  
The Many ◽  
Legal Fact ◽  
Burden Of Persuasion

In this article I address a foundational question in evidence law: how should judges and jurors reason with evidence? According to a widely accepted approach, legal fact-finding should involve a determination of whether each cause of action is proven to a specific probability. In most civil cases, the party carrying the burden of persuasion is said to need to persuade triers that the facts she needs to prevail are “more likely than not” true. The problem is that this approach is both a descriptively and normatively inadequate account of reasoning with evidence in law. It does not offer a plausible picture of how people in general, and legal fact-finders in particular, reason with evidence. And it turns out that if we try to do what the approach tells us, we end up with absurd results. Faced with these difficulties, a group of evidence scholars has proposed an alternative. According to them, legal fact-finding should involve a determination of which hypothesis best explains the admitted evidence, rather than whether each cause of action is proven to a specific probability. My main contributions in this article are twofold. First, I elaborate on the many descriptive, normative and explanatory considerations in support of an explanation-based approach to standards. Second, I offer novel replies to pressing objections against that same approach.

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