Four Developing Issues for Young Lawyers

This column is meant to provide brief primers on various, emerging legal issues the growth of which has resulted in greater opportunities for young lawyers.  If you are searching for a specific career path, interested in authoring a scholarly article, or simply keeping a pulse on developing fields of law, be sure to take a quick look.

(1) Immigration

Benjamin Franklin famously remarked that nothing in life can be certain except death and taxes.  For new lawyers, immigration may need to be included in that list.  The latest highlight in the immigration debate has been the Deferred Action for Childhood Arrivals program.  The program stands to afford protection to approximately four million immigrants who meet a variety of preconditions.  A more detailed explanation and the political firestorm it has created may be found here, but the initiative will result in countless immigrants seeking intelligent counsel on the matter.  A similar deferred-action program providing temporary relief from deportation is known as Deferred Action for Parental Accountability (for a full explanation check out this article passed along by Matt Curtis at the Lightman Immigration Firm in New York). 

One of the preconditions for deferral is that the petitioner for removal must not be someone with certain criminal convictions.  A related issue has created a circuit split.  In Stanovesek v. Holder, the Sixth Circuit held, in accordance with opinions from the Third, Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits, that aliens who legally enter the U.S. as non-immigrants and later adjust to immigrant status are barred from seeking "hardship waivers" in removal proceedings related to aggravated felony convictions only if they are aliens who entered illegally or were admitted as immigrants in the first place.  The Eighth Circuit, however, disagreed, affording deference to the Board of Immigration Appeals' statutory interpretation. 

(2) First Amendment Retaliation:  Citizen Speech or Work-Related?

What happens when a government employee is terminated for speaking out about an ostensibly valid concern related to the employee's professional duties?  In 2006, the Supreme Court decided Garcetti v. Ceballos, 547 U.S. 410, which established the framework for assessing whether a government worker who "speaks" is protected from retaliation by the First Amendment, or whether the speech is unprotected because, as a matter of law, the worker is not considered a "citizen" for the purposes of First Amendment protection.  The Supreme Court reaffirmed the principles espoused in Garcetti last year in Lane v. Franks, 134 S. Ct. 2369 (2014). However, some circuits have noted a possible clarification in LaneSee, e.g., Gibson v. Kilpatrick, No. 12-60905 (5th Cir. Jan. 2, 2015).  

The practical importance of Garcetti and Lane has been amplified by the platforms for speech offered by emerging forms of social media.  Facebook posts and Tweets, for example, may be fair game for adverse employment actions if a government employee is speaking on a work-related matter.  Simply clocking out does not immunize an employee's speech, and retaliation cases are popping up frequently.  For those interested in free-speech matters, the sheer number of local, state, and federal employees and the ease by which to "speak" over social media makes this developing area ripe for pursuit. 

(3) Insurance, Regulatory, and Banking Law

Ever since the Great Recession took a toll on banks across the United States, the Federal Deposit Insurance Corporation (FDIC) has been on a mission.  It has brought suit against various directors and officers of the failed banks that went into receivership for, allegedly, making and administering grossly negligent loans during the time period that led up to their failure.  Take a look here for the FDIC's explanation of a lawsuit against a bank's directors and officers. 

The variety of issues comprising these lawsuits is intellectually stimulating:  contracts, insurance, tort law and the Business Judgment Rule, statutory interpretation (both state and federal), and a bevy of jurisprudence from the Savings and Loan Crisis through which to sift.  The FDIC's governing statute gives it a unique charge that requires reviewing courts to assess numerous state and federal procedural and substantive matters in resolving them.  To be sure, there are also mountains of necessary and critical document review.  Additionally, because bank directors and officers take out liability insurance policies (normally referred to as D&O Liability Insurance) with substantial coverage (ten or twenty million dollars per carrier in some instances), insurance companies often hesitate before honoring a claim.

Many of these cases are currently proceeding through discovery and, although several have settled or may be nearing resolution, the consequences from them may reveal the need for much more proactive legal advocacy in the future. 

(4) International Law:  MLATs and DOJ

President Obama recently announced his intention to prioritize collaboration among the United States and her global allies in an effort to better coordinate multi-national investigations.  The scope of such investigations is governed by Mutual Legal Assistance Treaties (MLATs), and the subject-matter umbrella of such treaties is as broad as the signatories wish to make it:  tax matters, narcotics, environmental issues, and financial crimes, to name a few. 

The Office of International Affairs at the Department of Justice (take a look) oversees this aspect of the federal government's legal strategy.  Normally, attorneys need at least three to five years' experience to be eligible for a position there, but if "international law" interests you, now may be the time to prepare.  Ideal candidates for these positions, which are increasing in light of the President's recommitment to the initiative, have experience in the subject matter of MLAT work, are open to traveling abroad, and speak another foreign language, such as Chinese, Spanish, French, Portuguese, or Arabic. 

Experience in this particular field may seem hard to come by, but every state's executive office has someone dedicated to responding to DOJ requests for extradition of international citizens in state prisoners that come from foreign governments (the federal government cannot simply take a prisoner in a state system without approval from that state's governor).  Another option would be to search for firms that engage in MLAT-related work and spend a couple years there prior to applying.


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