Editor’s Preface
By Nathan Goetting
The bigotries, phobias, and moral crimes of the Trump administration are too legion for any law review to examine completely, even in a special jumbo edition. The best we can do is expose and seek to correct them one obnoxious offense at a time. In “The Ejusdem Generis of A-B-: Ongoing Asylum Advocacy for Domestic Violence Survivors,” Linda Kelly zeroes in on an especially repellent Department of Justice (“DOJ”) opinion in which the misogyny and xenophobia of Trumpism coalesce into something close to pure cruelty.
In Matter of A-B- then-Attorney General Jeff Sessions unilaterally reversed the policy established by the DOJ’s Board of Immigration Appeals that facilitated protections to immigrant victims of domestic violence seeking asylum. A-B- narrows the rules, heightens the burdens, and otherwise worsens the already-hellish lives of some of the poorest, most desperate and forlorn refugees to arrive at our borders. These are mostly women who’ve already suffered indefensible gender-based cruelty and violence and are now far more likely to be redirected back for even more of it.
Kelly’s article is a how-to manual for human rights attorneys advocating on behalf of these asylum-seekers. She provides insight and analysis along with practical, tactical suggestions for how to win these cases. It is written both with moral urgency and a strategist’s blueprint for winning in court.
The permeation of racism in our criminal justice system generally, and in the courts specifically, is a topic which has lately been given plenty of ink but nowhere near enough action. For all the discussion, there’s been little meaningful remediation. Jana DiCosmo’s “Racism in the Legal Profession: A Racist Lawyer is an Incompetent Lawyer” separates itself from the din in two essential ways.
First, it addresses an aspect of the fundamentally racist U.S. criminal justice system rarely discussed in popular or scholarly literature—racist lawyering. This is to be distinguished from the obvious, larger problem that so many lawyers hold racist beliefs and prejudices. Traditionally, when racist lawyers have been sanctioned by the bar it has been for ethical violations—with their racial animus treated as a “character and fitness” issue that diminishes public in the legal profession. DiCosmo suggests that, more than just causing unethical conduct, participation in a racist ideology can blind attorneys to the best advice they should be giving their clients. That is, because these lawyers believe the myths and falsehoods of their own racism, they are incapable of effective advocacy. Her article explores different manifestations of racist lawyering and how, in these cases, the lawyer’s racism harmed his or her client’s cases.
Secondly, by making the case that racist lawyering should result in a finding of incompetence, DiCosmo provides a strategy that can spur meaningful change by excluding from practice some of the attorneys most responsible for the more overt racism in our court system. The article is an exemplar of activist legal scholarship, exploring new ideas and arguments and recommending a new way to achieve much-needed reform.
Life may be beautiful, but it doesn’t end very prettily for most of us. Recent advances in medical technology have improved the lot of mankind in myriad ways, but (our constitutional right to refuse unwanted medical treatment notwithstanding) in many cases it has made an already unbearable demise even more protracted and excruciating. “Measuring Mercy: Protecting Patient Discretion in Terminal Care under the Fourteenth Amendment” by Kelsey Nicholas makes the constitutional case on behalf of terminally ill patients suffering incurable pain who seek physician-assisted suicide as a means of pain relief. New science has shown an essential premise of the Supreme Court’s previous rulings upholding state bans on euthanasia to be false. These cases were premised on the belief that, with the aid of certain drugs, all forms of pain can be managed and even eliminated. Medical research, Nicholas claims, has since shown that underlying belief to be false. For some suffering patients, the only sure form of pain relief is death. Thus, anti-euthanasia laws upheld in prior cases condemn unwilling, moribund patients to experience torments that can be both agonizing and dehumanizing. Nicholas argues that the constitutional right to privacy in personal decision-making, whose boundaries the Supreme Court recently expanded when it recognized a right to same-sex marriage, extends to those who seek the absence of pain in their final moments, and that, far from doing them harm, the doctors who bring them relief-through-death are honoring their wishes and providing much-needed care.