On Tuesday, April 4, members of the Michigan Law Review discussed the 2012 writing competition and the process by which the review selects new associate editors. Click here to listen to an audio recording of the panel session.

If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy.

This theory holds that the lawyer is the client's agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is built on the concepts of free choice, consent, and loyalty, and it is not unusual to find lawyer-client relationships in which some or all of these elements are missing.

Let us put to one side the ideal case: a sophisticated client with money. That client presumably chooses a good lawyer, monitors and controls the lawyer's work, and fires her if she turns out to be disloyal or incompetent. The lawyer in that case really is the instrument of her client's will, and so the client may fairly be tagged with the lawyer's errors.

Now consider a client who is poor, uneducated, mentally troubled, scared, or imprisoned-or perhaps all of these things at once. And then add to this mix a lawyer who is not retained but a volunteer or assigned by the state. Does it still make sense to consider such a lawyer an authentic agent of the client?

The splendid reviews collected here are all concerned with aspects of what justice means, and they generally take for granted that courts can sort things out. But that presupposes competent advocacy that actually advances the interests of those involved. For instance, both Habeas for the Twenty-First Century — a valuable book by Nancy J. King and Joseph L. Hoffman — and Eve Brensike Primus's sometimes skeptical review of it share the common ground that, as Professor Brensike Primus puts it, "there is a crisis of counsel" for indigent criminal defendants.

United States v. Jones, issued in January of this year, is a landmark case that has the potential to restore a property-based interpretation of the Fourth Amendment to prominence. In 1967, the Supreme Court abandoned its previous Fourth Amendment framework, which had viewed the prohibition on unreasonable searches in light of property and trespass laws, and replaced it with a rule protecting the public’s reasonable expectations of privacy. Although the Court may have intended this reasonable expectations test to provide more protection than a test rooted in property law, the new test in fact made the Justices’ subjective views about privacy paramount, resulted in circular logic, and over time diminished Fourth Amendment protection. Jones reinvigorates the pre-1967 property-based framework. The case indicates that a governmental intrusion is a search if it violates a reasonable expectation of privacy or constitutes a physical intrusion of property. Jones is itself rather limited in scope, but it could provide the foundation for a paradigm shift in the interpretation of the Fourth Amendment. Jones’s potential impact is far broader than outcomes in particular Fourth Amendment cases. Jones should restore our faith in the Fourth Amendment—not necessarily because it is more protective of Fourth Amendment rights, but because it gives the Justices a more concrete framework to determine whether the government has executed a search.

Under immigration law, an alien smuggling offense takes place when one knowingly encourages, induces, assists, abets, or aids an alien to enter or to try to enter the United States. Committing this offense is cause for either removal or inadmissibility charges under the Immigration and Nationality Act ("INA"). In addition, a federal criminal conviction for alien smuggling under INA section 274(a)(1)(A) or 274(a)(2) classifies the immigrant as an aggravated felon, leading to near certain deportation.

Although the INA levies harsh penalties against smugglers, the practice has not showed any signs of slowing. In 2010, the United States Border Patrol apprehended 463,382 individuals smuggled across the border, including 8,905 smugglers. Of the smugglers, 3,027 were deemed deportable under the INA. The types of smugglers who are seized vary "from self-smugglers [that is, migrants illegally crossing the border on their own] . . . , to local-level individual smuggling entrepreneurs [family-based smugglers]  . . . , to highly organized and sophisticated transnational smuggling networks . . . ."

Despite the severe penalties imposed on most categories of smugglers, a small refuge exists for some family-based smugglers. All three of the major INA sections punishing alien smuggling include either a discretionary waiver or an outright exception for a smuggler who is the spouse, child, or parent of the smugglee. These nuclear family exemptions provide a safe haven for some immigrants; however, strictly limiting this waiver to three relationship categories fails to protect all aliens deserving of congressional exemption.

This paper argues that in order for the U.S. Congress to faithfully carry out the purposes behind these exemptions, it must expand the family exception and waivers to include all close genetic relatives when the smugglee is a minor child. Using the procedural history and legislative framework of the current exemptions, Part II defines the three primary purposes for excluding parents, spouses, and children from immigration smuggling prosecutions. Part III examines the current enforcement practices in the area of family-based alien smuggling, drawing on empirical data from recent case law, anecdotal accounts, and prosecutorial policies established by the Department of Homeland Security and United States Attorneys Offices. Finally, Part IV suggests a statutory or regulatory modification to the current exemptions that would better serve Congress's stated goals for these statutory exclusions.

For all the drama surrounding the Commerce Clause challenge to the individual mandate provision of the Patient Protection and Affordable Care Act ("PPACA"), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the Supreme Court will abide by its previously announced doctrines and uphold the individual mandate. So I mean to engage U.S. Department of Health and Human Services v. Florida as the easy case it is and to explore an underappreciated feature of how it came to be so easy. 

The Supreme Court's opinion in United States v. Jones, on GPS trackers and the Fourth Amendment, cited Orin Kerr's article in Volume 102 of the Michigan Law Review. The piece was cited once by Justice Scalia for the majority, and twice by Justice Alito concurring.