University of Baltimore Law Review

Term Limits, Age Limits, Or Cognitive Assessments: Evaluating Potential Solutions to America’s Aging Leadership.

*Brendan Bloom

I. Introduction

America’s political leadership is one of the oldest in its history,[1] and the signs are starting to show. In September, 96-year-old federal judge Pauline Newman of the U.S. Court of Appeals for the Federal Circuit was suspended from hearing cases after she refused to undergo an evaluation as part of an investigation concerning her mental fitness.[2] The Chief Judge of the Federal Circuit began the investigation into Newman in March after reports that Newman suffered a cardiac incident emerged.[3] Preliminary results from the investigation indicate that court staff witnessed Newman struggle with basic tasks and become hostile with court staff.[4] Similar incidents have occurred in the legislative branch. Senator Mitch McConnell, 81, appeared to freeze and lack capacity to speak in two separate press conferences over the summer.[5] In September, Senator Dianne Feinstein passed away while in office as the oldest sitting Senator at age 90. President Biden, who has announced his run for reelection, would be 82 by the time his second term begins. As our politicians continue to age, issues related to their health and competency will only continue to increase.[6] How should the electorate handle the increasing age and corresponding capacity of its leaders? Instituting age caps and regular cognitive assessments offer two possible ways to handle this growing issue.

II. Congressional Term Limits: A Pipe Dream? Or Legitimate Solution?

Some have suggested that an amendment to the Constitution establishing term limits for members of Congress would solve the issue of America’s aging politicians.[7] This is not a new suggestion. This issue was at the forefront in the 1995 landmark Supreme Court case, U.S. Term Limits, Inc. v. Thornton.[8] Prior to U.S. Term Limits, Arkansas passed an amendment to its state constitution that prohibited a person from serving more than three terms in the U.S. House of Representatives.[9] The Court held, however, that it was beyond a state’s power to impose stricter qualifications for prospective members of Congress than those created by the federal Constitution.[10] The decision had immediate and far-reaching effects, invalidating term limit legislation on the books in twenty-three states. The majority opined that a state’s ability to impose such a change to the Constitution could only come from a constitutional amendment.[11] A constitutional amendment to establish term limits for members of Congress is not out of the realm of possibility,[12] but there are no illusions about the uphill battle supporters of such an amendment would face. The Twenty-Seventh Amendment was the last to be ratified over thirty years ago, though it was actually proposed as part of the initial batch of amendments in 1789.[13]

III. Age Limits

The current argument for congressional term limits fails to adequately address the issue of aging political leadership because it does not account for the executive and judicial branches of our government. For example, as of 2020, the average age of federal judges was sixty-nine years old.[14] Because all federal judicial appointments are for life, some legal scholars are concerned that many of America’s federal judges will soon be at an age in which their cognitive abilities could be in question.[15] To be elected President, a person must only be a natural-born citizen and have attained the age of 35.[16] The two most recently-elected presidents were the second oldest and the oldest in U.S. history, at the ages of 70 and 77, respectively.[17]

As an alternative to term limits, the American people could impose caps on the age of the various political offices and federal judges like the limits imposed on other professions in America such as pilots, police officers, and even judges in some state courts. However, like term limits, this solution would still require a constitutional amendment since qualifications for federal office are expressly laid out in the Constitution. Though constitutional scholars have offered examples of what that amendment might look like,[18] this solution would likely be overbroad since “age is just a number.” Neuroscience holds that people and their brains age differently.[19] There is no automatic decline in cognitive capacity.[20] “The concern for aging in office is not age itself, but the cognitive decline often accompanying it. An Amendment prohibiting individuals from taking office based on age alone could fail this goal by prohibiting a competent and capable eighty-year-old from taking office while allowing a sixty-five-year-old with severe memory concerns to govern.”

IV. A Third Solution

Recently, some politicians have called for a different approach to the age and capacity issue: basic mental competency tests for politicians.[21] While these types of competency tests could theoretically apply to a politician or judge of any age, some scholars cite 75 as the best age.[22] As opposed to a cap, competency tests would not impose a mandatory retirement, but would instead require politicians to answer a variety of basic questions such as how many grandchildren they have or where they were born.[23] Such an assessment could be used to signal budding cognitive issues in political leaders of any age, but particularly those aging and more likely to become subject to cognitive failures.

For the aging judiciary, one scholar has suggested federal judges receive individual cognitive assessments, with the option to keep the results of the assessment private to maintain judicial independence from other branches of government.[24] This could be an effective tool for a situation like the one currently facing Judge Newman.[25] However, requiring a mental competency test as part of a targeted investigation, as in Judge Newman’s case, could feel hostile. A better solution would be to require mental competency tests as a baseline for all federal judges. While this solution is tailored to judges, a similar framework centered on confidential tests could be applied to members of Congress.

A downside to this proposal is the potential for discrimination against people based on age. Forcing a politician or judge to undergo a mental competency test based on their age could raise equal protection concerns.[26] However, requiring all members of a given political body to undergo competency assessment—regardless of their age—could avoid this potential obstacle.[27]

V. Conclusion

The average age for America’s judges, congressmembers, and presidents is increasing. Recent indicators show that concerns about their cognitive health and capacity may become a large issue—if not a crisis—in the near future.[28] Going forward, American lawmakers should consider solutions to this issue, whether by a constitutional amendment limiting terms of office or capping age or by imposing mandatory cognitive assessment tests. Whichever path lawmakers take, navigating potential age-discrimination concerns will be a significant hurdle.

*Brendan Bloom is a second-year student at the University of Baltimore School of Law who is passionate about how history, politics, and law interact. He currently serves as a Staff Editor on the University of Baltimore Law Review. Prior to beginning his law school career, Brendan worked as a federal contractor for five years, helping government agencies achieve compliance with federal records laws. In September 2023, he was inducted into the Royal Graham Shannonhouse III Honor Society. During his first-year summer, Brendan interned at the Maryland Office of Administrative Hearings in Hunt Valley, MD and at Frost Law in Annapolis, MD. He is excited to begin working as a Law Clerk this summer at Schlachman, Belsky, Weiner & Davey P.A. in Baltimore.

[1] Joe Murphy, The 118th Congress Is The Third Oldest Since 1789,NBC News (Jan. 4, 2023, 11:08 AM), https://www.nbcnews.com/data-graphics/118th-congress-age-third-oldest-1789-rcna64117.

[2] Rebecca Falconer, Judge, 96, Suspended Over Refusal to Comply With Order on Mental Fitness Test, Axios (Sept. 21, 2023), https://www.axios.com/2023/09/21/judge-pauline-newman-suspended-age-mental-fitness#.

[3] Michael Shapiro, Embattled 96-Year-Old Judge Suspended in Disability Probe, Bloomberg Law (Sept. 20, 2023, 9:06 AM), https://news.bloomberglaw.com/ip-law/96-year-old-judge-suspended-a-year-by-fed-circuit-colleagues.

[4] Order in re Complaint No. 23-900015 at 3 (Fed. Cir. Jud. Council Sept. 20, 2023), https://cafc.uscourts.gov/wp-content/uploads/JudicialMisconductOrders/September%2020,%202023%20Judicial%20Council%20Order.pdf.

[5] Ivana Saric, Mitch McConnell Appears to Freeze During News Conference a Second Time, Axios (Aug. 30, 2023), https://www.axios.com/2023/08/30/mcconnell-freeze-press-conference-senate.

[6] Daniel L. Murman, The Impact of Age on Cognition, National Library of Medicine National Center For Biotechnology Information, Aug. 2015. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4906299/#:~:text=The%20most%20important%20changes%20in,memory%2C%20and%20executive%20cognitive%20function.

[7] Christopher Rhodes, Opinion, The US Doesn’t Need Age Limits – It Needs Term Limits, Al Jazeera (July 7, 2023), https://www.aljazeera.com/opinions/2023/7/7/the-us-doesnt-need-age-limits-it-needs-term-limits.

[8] U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).

[9] Id. at 783-84.

[10] Id. at 837.

[11] Id. at 838.

[12] S.J. Res. 2, 118th Congress (2023). In January 2023, Senator Ted Cruz and others introduced a proposed amendment to the U.S. Constitution to limit the number of terms a member of Congress can serve. Id. The amendment proposes that Representatives be limited to three terms and Senators limited to two. Id.

[13] Steven G. Calabresi & Zephyr Teachout, The Twenty-Seventh Amendment, National Constitution Center (last visited Feb. 7, 2024), https://constitutioncenter.org/the-constitution/amendments/amendment-xxvii/interpretations/165

[14] Frances Shen, Aging Judges, 81 Ohio. St. Law. J. 235, 237 (2020). https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1671&context=faculty_articles

[15] Id. at 235.

[16] U.S. Const. art. II, §1.

[17] Gianna Melillo, Here Are The Oldest US Presidents To Ever Hold Office, The Hill (Nov. 21, 2022), https://thehill.com/changing-america/enrichment/arts-culture/3744771-here-are-the-oldest-us-presidents-to-ever-hold-office/

[18] Derek T. Muller, Blog, What Might a Constitutional Amendment Capping The Age of The President Look Like?, Excess of Democracy (Nov. 14, 2019), https://excessofdemocracy.com/blog/2019/11/what-might-a-constitutional-amendment-capping-the-age-of-the-president-look-like.

[19] Shen, supra note 14 at 235.

[20] Id.

[21] Shauneen Miranda, Nikki Haley Says America “Less Safe” Due to Older Politicians Stumbles, Axios (Sept. 3, 2023), https://www.axios.com/2023/09/03/nikki-haley-mitch-mcconnell-mental-competency-america.

[22] David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. CHI. L. REV. 995, 1040 (2000).

[23] Miranda, supra note 20.

[24] Shen, supra note 11 at 309.

[25] See supra notes 2-4, and accompanying text.

[26] Shen, supra note 11 at 278.

[27] Miranda, supra note 20.

[28] Josh Marcus, The Danger of America’s Aging Politicians, The Independent (May 12, 2023), https://www.the-independent.com/news/world/americas/us-politics/joe-biden-age-feinstein-2024-b2335042.html

The Rocky Road to Mining in Space and Boulders in the Way of Global Regulation.

*Collin Riley

I. Introduction

The technological challenges and financial barriers to mining in space remain unconquered as the burgeoning commercial enterprise leaves a trail of defeated companies in its wake.[1] Estimated quantities of precious metals such as platinum, iridium, and gold found in asteroids have prompted staggering evaluations of the industry—some reaching into the trillions.[2] Many believe that helium-3 and water deposits on the moon are essential for the future of space exploration,[3] which is why the idea of mining space resources has garnered so much attention.

With nations and private companies striving to attain the first advantage in the space mining industry, students and scholars worldwide call for more specific international regulations.[4] Current international agreements are vague regarding the collection and ownership of space resources.[5] Proponents for further regulation claim that, without an international agreement, the field could quickly disintegrate into a chaotic free-for-all akin to the California Gold Rush—with much higher stakes.[6] Those in opposition assert that enacting overbearing regulations will stifle development and deter investors.[7] Domestic regulations worldwide serve as an example (or warning) of the industry’s current situation and its likely path forward.[8] The volatile nature of international law and the immense power of certain space-faring countries do not inspire much hope when it comes to enacting global regulations any time soon.

II. A Very Brief History of International Space “Law”

Article II of the 1967 Outer Space Treaty (OST)—the most controlling regulation in current space law—states “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”[9] The OST is a multilateral agreement signed and ratified by over a hundred countries including, the United States, Russia, China, and Japan.[10] During the midst of the Cold War and the Space Race between the United States and the Soviet Union, the OST was developed to prevent nations from fighting over territory in space and to avoid the damage that “self-seeking exploitation” might cause.[11] In setting the foundation for the entire industry, the OST prohibits any nation from declaring any celestial body as its own while stating that the exploration and use of space should benefit all of humanity.[12] Since the adoption of the OST, the United Nations also adopted the “Moon Treaty” in 1979, which discussed exploiting the Moon’s resources; however, countries without plans to engage in space mining were the only ones to ratify it.[13]

III. Recent Regulations

In 2015, the United States became the first country to enact space mining legislation with Congress passing the 2015 U.S. Commercial Space Launch Competitiveness Act (Space Act)—giving private citizens and companies the right to “posses, own, transport, use and sell” space resources obtained in accordance with the OST.[14] Following in its footsteps, nations such as Luxembourg and the United Arab Emirates enacted similar legislation that sets up a framework for commercial space mining.[15] Critics of the 2015 U.S. Space Act claim that the legislation might have been pushed through too quickly.[16] Others espouse that the Space Act gives potential miners too much freedom and will hinder the equal access to space resources that the OST calls for.[17]

In 2020, NASA, on behalf of the U.S., launched the Artemis Accords, a non-binding multinational agreement focused on peace, sustainability, and cooperation in space.[18] The Accords reiterated signatories’ compliance with the OST.[19] Although certainly a step in the right direction, certain space-faring nations such as Russia and China remain absent from the signatory list.[20]

IV. What is Driving a New International Agreement

Many individuals have expressed various reasons for further international regulations of the space mining industry. Predominately, proponents suggest a universal framework that would create a legally binding baseline for property rights in space.[21] Comparing the current state of the space mining industry with the California Gold Rush, Mathew Feinman stated: “Like the miners of 1848, these space cowboys will rush in search of the next big ‘score’ while governments of the world try to scramble to piece together the regulations that might ultimately, if the past is any indicator, have to conform to the customs already put in place by the mining companies themselves.” [22]

In addition to facilitating a smooth transition to space mining, advocates for further international regulations emphasize their necessity as a safeguard for the economies reliant on the extraction of precious metals.[23] Should space mining go unregulated, countries like South Africa and Zimbabwe, dependent on platinum mining, or The Republic of Congo, dependent on mining cobalt, could face serious economic threats. Effective regulations could allocate money to stabilize these affected economies while helping to diminish atrocities like child labor often utilized in those countries.[24]

The environmental impact of space mining also dominates regulatory discussions. While advocates of space mining voice the benefits to the Earth’s environment that will come with relying less on terrestrial mining, others have focused on the potential damage to the extra-terrestrial environment.[25] Critics of the legislation on space mining in the U.S. claim that the regulations focus too heavily on ensuring successful business and fail to consider environmental protections.[26] Numerous calls for international regulations make it clear that humanity would benefit from a more specific international framework. However, creating such a framework through international law is challenging.

V. Limitations of International Agreements

International law is a complex system that arises from the actions of states and international actors.[27] In deciding international law cases, the International Court of Justice looks at treaties, customary international law, general principles of law, judicial decisions, and experts’ teachings.[28] Considering the industry’s relative infancy, very few international customs or judicial decisions pertaining to the mining of space resources provide guidance. General principles of law bear relevance but need more specificity. Thus, treaties and experts’ teachings are left to determine international law. However, the lack of ratification by space-faring nations of the Moon Agreement evinces the difficulties of implementing new treaties.[29] Additionally, while various experts around the world have disagreed on paths to achieve new international regulations, a consensus is still possible.[30] Effectively establishing binding international regulations will take a previously unheard-of worldwide coalescence of governments and organizations unified around the common goal of advancing and improving humanity.

*Collin Riley is a second-year day student at the University of Baltimore School of Law and a Staff Editor for Law Review. Before law school, Collin received a Bachelor’s in Business Management from Salisbury University. In May, Collin will join the esteemed staff of Hyatt and Goldbloom, LLC as a summer associate. He would like to take this opportunity to thank the Law Review staff for their immense help in editing and publishing this piece. He would also like to thank his family, girlfriend, and friends for their support and guidance.

[1] See Atossa Abrahamian, How the Asteroid-Mining Bubble Burst, MIT Tech. Rev. (Jun. 26, 2019), https://www.technologyreview.com/2019/06/26/134510/asteroid-mining-bubble-burst-history/.

[2] See Shriya Yarlagadda, Economics of the Stars: The Future of Asteroid Mining and the Global Economy, Harv. Int’l Rev. (Apr. 8, 2022), https://hir.harvard.edu/economics-of-the-stars/.

[3] See Florian Vidal, Helium-3 from the Lunar Surface for Nuclear Fusion?, Polytechnique Insights (May 17, 2022), https://www.polytechnique-insights.com/en/braincamps/space/extraterrestrial-mining/helium-3-from-the-lunar-surface-for-nuclear-fusion/.

[4] See Maquelin Pereira, Commercial Space Mining: National Legislation vs. International Space Law, 63 Proc. Int’l Inst. Space L. 47, 55–56 (2020); Mathew Feinman, Mining the Final Frontier: Keeping Earth’s Asteroid Mining Ventures from Becoming the Next Gold Rush, 14 Pitt. J. Tech. L. & Pol’y 202, 234–35 (2014).

[5] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].

[6] See Feinman, supra note 4, at 210–14.

[7] See David Sarnacki, Property Rights in Space: Asteroid Mining, 2 Tex. A&M J. Prop L. 123, 146 (2014).

[8] See U.S. Commercial Space Launch Competitiveness Act of 2015, Pub. L. No. 114-90, 129 Stat. 704; Law of July 20th, 2017, on the Exploration and Use of Space Resources, https://space-agency.public.lu/en/agency/legal-framework/law_space_resources_english_translation.html.

[9] Outer Space Treaty, supra note 5, at art. II.

[10] See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, U.S. Dep’t. of State (Jan. 20, 2017), https://2009-2017.state.gov/t/isn/5181.htm#signatory (depicting each country that signed the Outer Space Treaty).

[11] Id.

[12] Outer Space Treaty, supra note 5, at art. II.

[13] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18, 1979, 1363 U.N.T.S. 22.

[14] See Maquelin Pereira, Commercial Space Mining: National Legislation vs. International Space Law, 63 Proc. Int’l Inst. Space L. 47, 52 (2020).

[15] Id. at 52–53.

[16] See Craig Foster, Excuse Me, You’re Mining My Asteroid: Space Property Rights and the U.S. Space Resource Exploration and Utilization Act of 2015, 2016 U. Ill. J. L. Tech. & Pol’y 407, 422–23 (2016).

[17] Id.

[18] See The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes, Oct. 13, 2020, https://www.nasa.gov/wp-content/uploads/2022/11/Artemis-Accords-signed-13Oct2020.pdf.

[19] Id.

[20] Id.

[21] See Feinman, supra note 4, at 220–21.

[22] Id. at 234–35.

[23] See Yarlagadda, supra note 2.

[24] Id.

[25] See Federico Bergamasco, Space Mining and the Protection of Extra-Terrestrial Environment in the Light of Article IX of the Outer Space Treaty, 60 Proc. Int’l Inst. Space L. 157 (2017).

[26] See Foster, supra note 16, at 427.

[27] Lori Damrosch & Sean D. Murphy, International Law Cases and materials 1 (7th ed. 2019).

[28] Statute of the International Court of Justice, art. 38, ¶ 1.

[29] See Katharina Buchholz, The Countries That Signed the Moon Treaty, Statista (Aug. 23, 2023), https://www.statista.com/chart/18738/countries-that-are-signatories-or-parties-to-the-1979-moon-treaty/.

[30] See Feinman, supra note 4, at 221–35; see Pereira, supra note15, at 55–56; see Yarlagadda, supra note 2.

When Business Becomes Personal: Supreme Court Upends a Perceived Barrier to Suing Corporations.

*Shanae T. Jones

I. Introduction

Imagine buying an air fryer in your home state of New York. One day, the air fryer explodes in your kitchen, causing significant damage. Remembering that the manufacturer operates a small factory in the neighboring state of New Jersey, you file suit against the corporation there. To your dismay, the court dismisses your suit for lack of personal jurisdiction because the corporation can only be sued in Delaware where it is incorporated,[1] in Texas where it is headquartered,[2] or in a state where there is a specific connection between the corporation’s activities within that state and your claim.[3] What recourse does the judicial system provide to you?

Precedent suggests that prosecution of this hypothetical case requires you to refile the claim in Delaware or Texas.[4] In the wake of the Supreme Court’s recent decision in Mallory v. Norfolk Southern Railway Co.,[5] however, the longstanding barrier described in the hypothetical may fade as corporations find themselves susceptible to litigation for any reason in any state where they are registered to do business. In Mallory, the Supreme Court upheld a Pennsylvania law that establishes personal jurisdiction over any out-of-state corporation registered to do business in that state.[6] By finding that consent-by-registration statutes do not offend due process,[7] the Supreme Court deviated from its corporation-centered jurisprudence in a way that could impact judicial economy and interstate commerce.

II. Personal Jurisdiction over Corporations Before Mallory

The Court’s earlier jurisprudence reveals two types of personal jurisdiction, both of which allow courts to bind an out-of-state corporation: general jurisdiction and specific jurisdiction.[8] The Court has sought to define each type of personal jurisdiction in a way that comports with the due process concerns.[9] General jurisdiction refers to a forum’s ability to decide any case or controversy involving a defendant regardless of the cause of action.[10] General jurisdiction exists when a corporation’s “affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.”[11] Courts have found corporations “at home” for the purposes of establishing general jurisdiction in their state of incorporation and where they have their principal place of business—i.e. their headquarters.[12] Proponents of this approach note that bringing a claim in either location comports with due process because the corporation has sufficient notice that they could become subject to the jurisdiction of those states’ courts.[13] Opponents have called it a “massive gift to corporations” that limits jurisdiction to “just one or two states for most U.S. corporations.”[14] Attempts to establish general jurisdiction over an out-of-state corporation—meaning one that is neither incorporated nor headquartered in the forum state—have proven quite difficult.[15]

Alternatively, specific jurisdiction enables a court to exercise personal jurisdiction over an out-of-state corporation where the corporation has “certain minimum contacts with the state” and the dispute relates to or arises out of those contacts.[16] The development of the minimum contacts standard has afforded jurisdictional protections to out-of-state corporations by limiting where claims can be brought against them.[17]

III. Mallory Cements the Consent-Based Approach

Robert Mallory, a Virginia resident, sued Norfolk Southern, a corporation incorporated and headquartered in Virginia, in Pennsylvania state court for injuries sustained in Virginia and Ohio.[18] In response to Norfolk’s motion to dismiss for lack of personal jurisdiction, Pennsylvania’s courts ruled in favor of the corporation, finding jurisdiction improper because the consent-by-registration law did not comport with due process.[19] The Supreme Court disagreed, finding that due process is not offended where Norfolk Southern filed the registration paperwork and “appreciated the jurisdictional consequences attending its actions.”[20]

The plain language in Mallory reveals that suing a corporation “at home” is not the only way to establish general jurisdiction; rather, a corporation can consent to the general jurisdiction of the courts of other states.[21] Given the significant limitations on establishing personal jurisdiction over an out-of-state corporation in earlier jurisprudence,[22] one might consider the Court’s decision in Mallory a deviation from its practice of shielding corporate defendants. The Court, however, views the decision as more of a clarification of its personal jurisdiction jurisprudence than a broadening thereof.[23] The Mallory plurality cites Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co. to support the position that the consent-based approach is not new.[24] There, the Court found a consent-by-registration statute properly established personal jurisdiction over the out-of-state defendant.[25]

IV. Implications

Whether courts frame Mallory as the resurgence of a preexisting path to personal jurisdiction or the creation of a new path, the implications of states adopting consent-by-registration laws are clear. Notably, supplementing the at-home approach with the consent-based approach weakens the jurisdictional protections afforded to corporate defendants by the minimum contacts standard.[26] However, specific jurisdiction jurisprudence limits the forum choices available to a plaintiff against an out-of-state corporation in a way that creates inequities in access to the judiciary between corporations and individuals.[27] Consent-by-registration laws restore access to the courts for individuals.

Increased access to the judiciary directly affects judicial economy.[28] One foreseeable consequence of consent-by-registration laws is a rise in forum shopping amongst plaintiffs, as the increase in courts with general jurisdiction will increase choice-of-forum.[29] While courts in the United States largely disfavor forum shopping,[30] the process does not violate due process.[31] Corporations engage in forum shopping through tactics like moving their headquarters[32] and drafting forum selection clauses[33] to avoid availing themselves to litigation in unfavorable forums–a practice supported by courts.[34] In broadening choice-of-forum for individual plaintiffs, Mallory balances the scales that had previously been tilted in favor of protecting corporations.

A second foreseeable impact of Mallory on judicial economy is a spike in litigation tourism—the practice of suing an out-of-state defendant in a friendly venue without regard to connection with the forum state.[35] In Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, the Court shot down an attempt at litigation tourism where the plaintiffs tried to sue in state court under specific jurisdiction for a matter unrelated to the defendant’s activities in that state.[36] Unlike Bristol, Mallory deals with general jurisdiction, which, by definition applies to any matter concerning the defendant without regard to connection with the forum state.[37] The plurality in Mallory found no due process concern with litigation tourism, instead stating that it has jurisprudential roots in the modern application “transitory action” or “tag jurisdiction” to individuals where “a suit could be maintained by anyone on any claim in any place the defendant could be found.”[38]

In a concurring opinion, Justice Alito raised a concern that consent-by-registration laws violate the Dormant Commerce Clause.[39] While the Court has struck down state legislation that unduly restricts interstate commerce,[40] Mallory left the question open for the Pennsylvania court to address on remand.[41]

V. Conclusions

For years, the Supreme Court’s approach to establishing personal jurisdiction over out-of-state corporations has afforded protections to corporations.[42] The Mallory decision’s resurrection of the consent-based approach paves the way for states to simultaneously increase access to the judiciary for individual plaintiffs and increase accountability for corporate defendants.[43]

*Shanae T. Jones is a third-year evening student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society, and a Law Scholar for Professor Lynch’s Civil Procedure I class. In addition to being a law student, Shanae is a licensed social worker, employed in public child welfare. Shanae was a summer associate at Ballard Spahr during the summer of 2023 and looks forward to returning to the firm in the upcoming summer of 2024.

[1] See Stephen C. Yeazall et al., Civil Procedure 65 (11th ed. 2023).

[2] See id.

[3] See id. at 66.

[4] See, e.g., Daimler AG v. Bauman, 571 U.S. 117, 137 (2014).

[5] Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2023).

[6] Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2023).

[7] Id. at 134–36 (finding no valid due process issue).

[8] Bristol-Myers Squibb Co. v. Super. Ct. of Cal., S.F. Cnty., 582 U.S. 255, 262 (2017).

[9] Yeazall et al., supra note 1, at 5.

[10] Lea Brilmayer et al., A General Look at General Jurisdiction, 66 Tex. L. Rev. 721, 727 (1988).

[11] Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (quoting Int’l Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310, 317 (1945)) (emphasis added).

[12] Brilmayer et al., supra note 8, at 733–34.

[13] See id.

[14] Elizabeth Pollman, The Supreme Court and the Pro-Business Paradox, 135 Harv. L. Rev. 220, 234–35 (2021).

[15] See, e.g., Goodyear Dunlop Tires Operations, 564 U.S. 915 (holding that a state may not exercise general personal jurisdiction over a foreign subsidiary of a U.S. parent corporation where the subsidiary itself lacks continuous and systematic business contacts with the state); Daimler AG v. Bauman, 571 U.S. 117 (2014) (finding no general jurisdiction where out-of-state corporation did $192 billion worth of business in the forum state).

[16] Int’l Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945); see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984).

[17] See, e.g., Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., S.F. Cnty., 582 U.S. 255 (2017) (finding no specific jurisdiction where nonresident plaintiffs are harmed outside of the state); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (holding that the “stream of commerce” standard does not satisfy minimum contacts for specific jurisdiction); J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011) (declining to find specific jurisdiction over a foreign corporation that directed marketing at the U.S., but not at forum state); Shaffer v. Heitner, 433 U.S. 186 (1977) (stating that a state where property is located will usually have jurisdiction over claims where the property itself is the source of the underlying controversy, but having property in the state alone doesn’t satisfy minimum contacts for other claims).

[18] Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 126 (2023).

[19] Id. at 126–27.

[20] Id. at 144.

[21] Id. at 135–36, 138.

[22] See supra Part II.

[23] Mallory, 600 U.S. at 137.

[24] Id. at 131–32.

[25] Id. at 133.

[26] See id. at 147 (noting that without its consent, the defendant may be protected from the jurisdictional powers of the court).

[27] See Todd D. Peterson, Categorical Confusion in Personal Jurisdiction Law, 76 Wash. & Lee L. Rev. 655, 762 (2019).

[28] See David M. Axelrod, The Importance of Judicial Economy, Daily J. (May 7, 2021), https://www.dailyjournal.com/mcle/942-the-importance-of-judicial-economy (noting that judicial economy is more important as caseloads increase).

[29] See generally, Forum Shopping Reconsidered, Note, 103 Harv. L. Rev. 1677, 1677 (1990) (defining “forum shopping”).

[30] Id.

[31] See Mallory, 600 U.S. at 154 (Alito, J., concurring) (“[W]e have never held that the Due Process Clause protects against forum shopping.”).

[32] Patrick Mullinger, The Mall of Litigation: The Dangers and Benefits of Forum Shopping in American Jurisprudence, UCLA L. Rev. (Nov. 17, 2021), https://uclawreview.org/2021/11/17/the-mall-of-litigation-the-dangers-and-benefits-of-forum-shopping-in-american-jurisprudence/#_ftn23.

[33] See generally Symeon C. Symeonides, What Law Governs Forum Selection Clauses, 78 La. L. Rev. 1119, 1120 (2018) (defining “forum selection clause” as . . .).

[34] See David K. Duffee, et al., Keeping Current: U.S. Supreme Court Reaffirms that Forum-Selection Clauses Are Presumptively Enforceable, Am. Bar Assoc. https://www.americanbar.org/groups/business_law/resources/business-law-today/2014-january/keeping-current-u-s-supreme-court/.

[35] Mary A. Mellow, et al., Supreme Court Strikes Another Blow to Litigation Tourism in Bristol-Myers Squibb, Def. Counsel J. April 2018, at 1, 2.

[36] Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., S.F. Cnty., 582 U.S. 255, 258 (2017).

[37] See supra note 10 and accompanying text.

[38] Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 128–29 (2023).

[39] Id. at 157–60 (Alito, J. concurring).

[40] See, e.g., City of Phila. v. New Jersey, 437 U.S. 617, 628 (1978).

[41] Id. at 150 (Alito, J. concurring).

[42] See supra Part II.

[43] See supra Part IV.

Corporate Accountability from Earth to Orbit: A New Era in Outer Space

“Earth is the cradle of man, and man must leave his cradle to grow. The pollution of outer space threatens this evolution.”[1]

*Dallon Danforth

I. Introduction

Mankind’s reach extended beyond planet Earth for the first time on October 4, 1957, with the Soviet Union’s historic launch of the Sputnik 1 satellite.[2] Following the launch of Sputnik 1, humanity’s presence in outer space increased dramatically. Where only a single satellite occupied Earth’s orbit in 1957, over 6,500 satellites now occupy that same space today.[3] The road to this milestone was wrought with mistakes that inadvertently littered the Earth’s upper atmosphere with hazardous debris.[4] In the nearly seven decades following Sputnik 1’s launch, the United States never issued a financial penalty to a private company for the consequences of its failed operations in outer space.[5] That is, until October 2, 2023, when the Federal Communications Commission (FCC) established a new regulatory era in outer space by issuing the first-ever fine to a private company for its improper management of a proprietary satellite.[6] Unfortunately, the novel fine is likely insufficient to supplement the considerable gap in existing outer space regulations.

II. Background

Pursuant to 47 U.S.C. § 721,[7] the FCC fined Dish Network (Dish) $150,000 for its negligent operation of the EchoStar-7 satellite.[8] Dish incurred the penalty after failing to increase EchoStar-7’s elevation by an additional 178 kilometers above its final orbital altitude after the satellite prematurely depleted its remaining fuel reserves.[9] In an unofficial announcement, the FCC stated that EchoStar-7’s final position could pose concerns about orbital debris[10] which, in turn, may be “devastating” for mankind’s continued presence in outer space.[11]

III. Analysis

Given the gravity[12] of the consequences that may result from Dish’s admitted negligence, the question then becomes whether $150,000 is an appropriate penalty. If the purpose of a penalty is to discourage similar conduct, then the costs incurred should actually impose a financial detriment. As a preliminary metric, Dish generated $16.68 billion of revenue in 2022 alone, which translated to $2.30 billion of profit.[13] The FCC’s penalty accounts for approximately 0.00089% of Dish’s 2022 revenue and 0.0065% of profit for that same year.[14] In comparison, NASA estimates that the cost of removing orbital debris like that of EchoStar-7 can vary from $5.5 million to $20 million per single expedition, depending on the method of removal.[15] But even those expenses are negligible compared to the potential costs of a “space debris apocalypse” (also known as a “Kessler syndrome episode”) where Earth’s upper atmosphere becomes so crowded with misplaced, high velocity orbital debris that space-faring operations become infeasible for extended, if not indefinite, periods of time.[16] The financial ramifications of such an incident could be massive; mankind’s activities in outer space commanded a value of $469 billion in 2022, with the majority of that activity attributed to commercial companies like Dish.[17] Experts anticipate that humanity’s activities in outer space will be worth $1 trillion by 2040.[18] Space debris and negligent satellite operations like Dish’s EchoStar-7 failure jeopardize not only this projected financial growth, but the continued operation of the space-faring industry as a whole.[19] Under these considerations, a one-time penalty of $150,000 does not reflect the severity of Dish Network’s conduct.

Nevertheless, the first-of-its-kind penalty signals the beginning of a necessary change in the regulation of outer space. Humanity’s activities in outer space are currently subject to minimal regulation, and the few policies that do exist “do not address private sector activities” and are largely self-executing.[20] Given the “rapid rise of for-profit companies in space,” the FCC’s novel fine arrives at an opportune moment in space-based commerce.[21] For example, the for-profit company SpaceX owns and operates more than half of all active satellites in outer space—more than every government on planet Earth combined.[22] Despite SpaceX’s overwhelming dominance, the company’s presence in outer space remains largely unregulated, and the company has never been fined for its non-terrestrial operations.[23] To that end, Dr. Jonathan McDowell of the Harvard-Smithsonian Center for Astrophysics elaborated that “[t]he speed of commercial development is much faster than the speed of regulation change . . . There needs to be an overhaul of space traffic management and space regulation generally to cope with these massive commercial projects.”[24] Unfortunately, the FCC’s fine to Dish Network does not even approach the type of overhaul that Dr. McDowell urges.

IV. Conclusion

The private sector will only further increase humanity’s presence in outer space. In doing so, the United States must pass additional regulations to properly manage the accumulating amount of orbital debris. The FCC’s fine to Dish Network marks a necessary new era in the regulation of corporate activities occurring within outer space, but the value of the fine itself does not take the hardline stance necessary to control the rapidly growing industry.

*Dallon Danforth is a second-year student at the University of Baltimore School of Law and a Staff Editor for the University of Baltimore Law Review. He also serves as President of the Caroll Inn Chapter of the Phi Delta Phi International Legal Honor Society and is a law clerk at Greenberg Law. He would like to thank the Law Review staff for the opportunity to publish this piece.

[1] Orbital Space Debris, 1988: Hearing Before the Subcomm. on Space Sci. and Applications of the H. Comm. on Sci., Space, and Tech., 100th Cong., 2nd Sess. 112,at 82 (1988)(statement of Nicholas L. Johnson, Advisory Scientist, Teledyne Brown Engineering).

[2] The Launch of Sputnik, 1957, U.S. Dep’t of St. Archive, https://2001-2009.state.gov/r/pa/ho/time/lw/103729.htm (last visited Oct. 20, 2023).

[3] Id.; UCS Satellite Database, In-depth Details on the 6,718 Currently Orbiting Earth, Union of Concerned Scientists (Jan. 1, 2023), https://www.ucsusa.org/resources/satellite-database.

[4] See, e.g., Historical Log, Mars Exploration, NASA, https://mars.nasa.gov/mars-exploration/missions/historical-log/ (last visited Oct. 20, 2023); see also, Nikolai Khlystov, Space Debris is A Growing Problem. These Leaders Have A Plan to Tackle It, World Econ. F. (June 13, 2023), https://www.weforum.org/agenda/2023/06/orbital-debris-space-junk-removal (“[T]here are approximately 1 million pieces [of orbital debris] . . . travel[ling] several times faster than a bullet. A collision between the debris or with active satellites could be devastating, destroying entire missions or creating large new debris fields.”); see also Gunnar Leinberg, Orbital Space Debris, 4 J.L. & Tech. 93, 97 (1989) (explaining that pieces of orbital debris just 10cm or smaller are capable of causing “catastrophic damage.”).

[5] See Jennifer Hassan, Space Junk Crackdown Intensifies As FCC Gives First-Ever Fine to Dish, Wash. Post (Oct. 3, 2023, 8:50 AM), https://www.washingtonpost.com/technology/2023/10/03/space-junk-dish-network-fine-debris/.

[6] See id.

[7] See 47 U.S.C. § 721(c)(11) (2023) (authorizing the FCC to enforce the Communications Act of 1934).

[8] Press Release, Fed. Commc’ns Comm’n, FCC Takes First Space Debris Enforcement Action: Settles Investigation of DISH for Failing to Comply with Deorbiting Plan (Oct. 2, 2023), https://docs.fcc.gov/public/attachments/DOC-397412A1.pdf [hereinafter FCC Statement]. Apart from the $150,000 fine, Dish Network was also obligated admit liability for the mismanagement of EchoStar-7 and adhere to an FCC-imposed “compliance plan.” Id.

[9] Id.; see also Jackie Wattles, Space Debris Investigation Results in Fine and An ‘Admission of Liability’ by Satellite TV Company, CNN World (Oct. 2, 2023, 10:16 PM), https://www.cnn.com/2023/10/02/world/space-debris-fine-dish-fcc-scn/index.html (“Geostationary orbit is located well above low-Earth orbit, the area of space that is home to the ISS and thousands of small satellites including SpaceX’s Starlink network, as well as the most problematic space debris.”).

[10] FCC Statement, supra note 8.

[11] Khlystov, supra note 4.

[12] Or rather, the lack thereof.

[13] DISH Network Reports Fourth Quarter, Year-end 2022 Financial Results, Dish Network (Feb. 23, 2023), https://ir.dish.com/news-releases/news-release-details/dish-network-reports-fourth-quarter-year-end-2022-financial (official press release).

[14] See id.

[15] Andrew Petro & Howard Ashley, Cost Estimates for Removal of Orbital Debris, NASA Tech. Reps. Server (Jan. 1, 1989), https://ntrs.nasa.gov/citations/19900030959.

[16] For an introductory analysis of the current orbital debris situation, see Tereza Pultarova, 6 Types of Objects That Could Cause Space Debris Apocalypse, Space.com (Feb. 19, 2023), https://www.space.com/most-dangerous-types-space-junk (“The space around our planet is getting cluttered. Thousands of satellites and millions of out-of-control fragments of space debris hurtle high above our heads, threatening to collide.”). In early 2023, for example, two “huge pieces of space junk” almost caused the “worst case scenario” when each piece of orbital debris came within twenty feet of colliding. Id. Had the two pieces collided, the incident “could have spawned thousands of dangerous debris fragments that would have stayed in orbit for centuries.” Id.

[17] Space Foundation Editorial Team, Space Foundation Releases The Space Report 2022 Q2 Showing Growth of Global Space Economy, Space Found. (July 27, 2022), https://www.spacefoundation.org/2022/07/27/the-space-report-2022-q2/ (official press release).

[18] Michael Sheetz, The Space Industry Is on Its Way to Reach $1 Trillion in Revenue by 2040, Citi Says, CNBC (May 21, 2022, 7:00 AM), https://www.cnbc.com/2022/05/21/space-industry-is-on-its-way-to-1-trillion-in-revenue-by-2040-citi.html.

[19] See Pultarova, supra note 16 (“The sheer size of [some pieces of orbital debris] means that a collision would produce an enormous amount of space debris fragments that would . . . possibly [trigger] the Kessler syndrome, a dreaded scenario of unstoppable cascades of collisions such as the one depicted in the 2013 Oscar-winning movie ‘Gravity.’”).

[20] See Henry R. Hertzfeld et al., Outer Space: Ungoverned or Lacking Effective Governance? New Approaches to Managing Human Activities in Space, SAIS Rev. Int’l Aff., Summer-Fall 2016, at 15, 16, 23.

[21] Id. at 16.

[22] Lisa Grossman, Half of All Active Satellites Are Now from SpaceX. Here’s Why That May Be A Problem, Sci. News (Mar. 3, 2023, 9:00 AM), https://www.sciencenews.org/article/satellites-spacex-problem-space-pollution (noting that “[t]he number of satellites in low Earth orbit is increasing faster than regulations can keep up.”).

[23] See Hertzfeld et al., supra note 20, at 16.

[24] Id.

“To Be Determined” – Notice Requirements in Immigration Cases

*Rory Rightmyer

Moris Esmelis Campos-Chaves, native and citizen of El Salvador, arrived in the United States in January 2005.[1] Since then, he formed a family here, and is father to two U.S. citizen children.[2] He consistently pays his taxes and has no criminal record.[3] Shortly after arriving, U.S. Citizenship and Immigration Services (USCIS) served him a document informing him that he would need to attend a hearing to determine if he should be removed from the U.S.[4] This initial notice did not inform Mr. Campos-Chaves of the time or date of his hearing. That information arrived months later in a notice “changing” his hearing to a specific date and time. Mr. Campos-Chaves did not go to that hearing. Because of his absence, the immigration judge at that hearing ordered him removed “in absentia”—without his presence.[5] Now, more than a decade after entering the U.S., Mr. Campos-Chaves’ case is the centerpiece of a circuit split that raises questions of fairness when the government issues a defective notice to an immigrant.

This piece first introduces the legal framework providing notice to non-citizens[6] awaiting a hearing before outlining the arguments on either side of a circuit split straddling these two interpretations, and finally presents the rationale argued in a recently heard Supreme Court case that seeks to resolve this split.

I. Statutory Process

Title 8, Chapter 12 of the U.S. Code controls immigration processes.[7] This Chapter entitles non-citizens to a hearing prior to removal from the United States.[8] That hearing must be either in person or, with the consent of the parties, over video or telephone conference.[9] In addition, non-citizens must receive proper notice of this hearing.[10] Congress requires this “notice to appear” (NTA) to contain seven particular pieces of information, including the time and place where the hearing will be held.[11] Valid NTAs must present all seven items in a single document.[12] If the time or place is subsequently changed, the government must notify the recipient.[13]

However, our immigration system is severely backlogged.[14] Wait times for cases routinely exceed six months and can continue for years.[15] Because of this, many non-citizens first receive an NTA that lists the time to appear as “to be determined,” before receiving a second notice specifying the exact time and place.[16] This “notice-by-installment” schema has generated a fair amount of controversy[17] and courts have questioned the validity of an NTA with date and time set as “TBD” in nearly every circuit.[18]

Two Supreme Court cases have addressed this issue, and presented what should offer clear guidance for interpreting these statutes. The first, Pereira v. Sessions, decided that an NTA without a specific time or place was not valid under the relevant statute.[19] However, the Pereira court described its ruling as “narrow,” implying their logic only applies when determining timing for certain immigration procedures.[20] Three years later, Niz-Chavez v. Garland clarified that a valid NTA must contain not only a specific time and place for the hearing, but all of the relevant information within a single document.[21]

II. Circuit Split

In the years since, the circuit courts have tackled a new ambiguity originally touched on by Pereira but not yet fully resolved: whether a defective NTA, “changed” by a subsequent clarification, provides sufficient legal notice for an immigration judge to order removal of a non-citizen in absentia.

This question rests on semantic statutory interpretation and the definition of the word “change.”[22] The First,[23] Fourth,[24] Fifth,[25] and Ninth[26] circuits interpret Pereira and Niz-Chavez as laying out a statutory scheme that requires a non-defective NTA (one that includes all 7 required pieces of information in a single document) to be provided to the non-citizen before any in absentia removal order could be issued. Their argument is essentially that a date that has not been set cannot be “changed.” However, the Sixth[27] and Eleventh[28] circuits found that a subsequent notice of hearing can cure a defective NTA, “changing” a date of “to be determined” to a specific date.[29]

III. Possible Resolution

Singh v. Garland[30] and Campos-Chaves v. Garland[31] present particularly troublesome questions to immigration judges. In both cases, the government sent the non-citizen a defective NTA and a subsequent notice of hearing that “corrected” the defect. In both cases, an immigration judge ordered the immigrant removed in absentia after they failed to appear despite government notice setting the date and time of that hearing.[32]

The Supreme Court consolidated these two cases and heard oral argument for them on January 8th, 2024.[33] In their petition for cert, attorneys for Campos-Chavez argued that the disjunction in the circuit courts’ decisions creates fundamental unfairness, “if Mr. Campos-Chaves lived in California or Massachusetts, he could have reopened his removal proceedings and applied to stay in the United States . . . .”[34] The Supreme Court has the opportunity to resolve this issue, either by explicitly limiting the Pereira rule to its original context, or by expressly authorizing the “some assembly required”[35] form of notice accepted by the Sixth and Eleventh Circuits.

IV. Conclusion

While the respondent’s brief in Campos-Chaves highlights the meaning of the word “change,”[36] and Niz-Chavez includes an extensive discussion of the article, “a,”[37] the core of this ambiguity has less to say about the English language and more to say about balancing government efficiency against the importance of upholding principles of due process. Many similarly situated non-citizens await, defective NTAs in hand, unsure if they ever will, or already have, been sent a notice “changing” or setting the calendar for one of the most important court dates they will ever face. When the penalties for missing this date include removal from the U.S., separation from family, and a possible return to unsafe conditions, it may be better to incur a little bit of extra inefficiency to protect justice, fairness, and safety.[38]

*Rory Rightmyer is a second-year law student at the University of Baltimore School of Law, a Staff Editor for the University of Baltimore Law Review, and currently works as a student attorney at the University’s Immigrant Justice Clinic. Rory is a USAF veteran interested in exploring the complex legal issues surrounding the protection of human rights from individual, national, and global perspectives. The views expressed in this piece reflect their personal beliefs only.

[1] Brief for Petitioner at 15, Campos-Chaves v. Garland, No. 22-674 (U.S. Jan. 18, 2023), 2023 WL 361742, at *15.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] This article uses the term “non-citizen” to describe individuals whom the statutory language refers to as aliens. 8 U.S.C. § 1101(a)(3).

[7] 8 U.S.C. §§ 1101–1537.

[8] 8 U.S.C. § 1229a(a)(3).

[9] 8 U.S.C. § 1229a(b)(2).

[10] 8 U.S.C. § 1229(a).

[11] 8 U.S.C. § 1229(a)(1).

[12] Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021).

[13] 8 U.S.C. § 1229(a)(2). Notification of a change in venue or time for the hearing is commonly called a notice of hearing (NOH). Dragomirescu v. United States AG, 44 F.4th 1351, 1354.

[14] Muzaffar Chishti & Julia Gelatt, Mounting Backlogs Undermine U.S. Immigration System and Impede Biden Policy Changes, Migration Pol’y Inst. (Feb. 23, 2022), https://www.migrationpolicy.org/article/us-immigration-backlogs-mounting-undermine-biden.

[15] The Latest USCIS Processing Times – 2023, Boundless, https://www.boundless.com/immigration-resources/uscis-processing-times/ (last visited Oct. 23, 2023).

[16] See, e.g., Niz-Chavez,141 S. Ct. 1474.

[17] Id. at 1479.

[18] United States v. Mendoza-Sanchez, 963 F.3d 158 (1st Cir. 2020); United States v. Pszeniczny, 384 F. Supp. 3d 353 (2nd Cir. 2019); Guadalupe v. AG United States, 951 F.3d 161 (3rd Cir. 2020); Lazo-Gavidia v. Garland, 73 F.4th 244 (4th Cir. 2023); Aguilar-Reyes v. Garland, 2023 U.S. App. LEXIS 15892 (5th Cir. April 6, 2023); Aguilar v. Garland, 861 Fed. Appx. 45 (6th Cir. 2021); Alvarez-Espino v. Barr, 951 F.3d 868 (7th Cir. 2020); Apolinar v. Barr, 945 F.3d 1072 (8th Cir. 2019); Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020); Arias v. Barr, 821 Fed. Appx. 933 (10th Cir. 2020); Ajaj v. United States AG, 847 Fed. Appx. 759 (11th Cir. 2021).

[19] 138 S. Ct. 2105, 2110 (2018).

[20] Id. Specifically, Pereira was answering a question about whether a defective NTA “stopped the clock” for accrual of residency time when deciding whether removal would cause undue hardship. Id. at 2121.

[21] 141 S. Ct. 1474, 1481 (2021).

[22] Decisions tackling this case are full of paragraphs emphasizing the meaningful distinction between singular and plural terms, definite and indefinite articles, and conjunctive or disjunctive “ors.” See, e.g., id. at 1480 (“Admittedly, a lot here turns on a small word. In the view of some, too much.”).

[23] Laparra-Deleon v. Garland, 52 F.4th 514, 520 (1st Cir. 2022).

[24] Lazo-Gavidia v. Garland, 73 F.4th 244, 254 (4th Cir. 2023).

[25] Rodriguez v. Garland, 15 F.4th 351, 355 (5th Cir. 2022). But see Gudiel-Villatoro v. Garland, 40 F.4th 247, 249 (5th Cir. 2022) (stating that when the noncitizen failed to update their address with the government, no notice is required for an in absentia removal order).

[26] Singh v. Garland, 24 F.4th 1315, 1317 (9th Cir. 2022).

[27] Santos-Santos v. Barr, 917 F.3d 486, 487 (6th Cir. 2019).

[28] Dacostagomez-Aguilar v. United States AG, 40 F.4th 1312, 1314 (11th Cir. 2022).

[29] Many cases point to whether a noncitizen has provided an updated address to USCIS as a dispositive factor in deciding their outcomes. See, e.g.,Gudiel-Villatoro v. Garland, 40 F.4th 247, 249 (5th Cir. 2022). But see Lazo-Gavidia v. Garland, 73 F.4th 244 (4th Cir. 2023) (determining that a defective NTA, regardless of whether the noncitizen has updated their address with the government, does not provide adequate process to the respondent).

[30] Singh v. Garland, 24 F.4th 1315 (9th Cir. 2022).

[31] Campos-Chaves v. Garland, 43 F.4th 447 (5th Cir. 2022).

[32] Id. at 447–48; Singh, 24 F.4th 1315 at 1316–17.

[33] Campos-Chavez v. Garland, 2023 U.S. LEXIS 2801 (2023).

[34] Brief for Petitioner at 22, Campos-Chaves v. Garland, No. 22-674 (petition for cert. filed, Jan. 18, 2023).

[35] Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021).

[36] Brief for Respondent at 9, Campos-Chaves v. Garland, No. 22-674 (petition for cert. filed, Jan. 18, 2023).

[37] Niz-Chavez, 141 S. Ct. at 1480.

[38] The U.S. Supreme Court heard oral argument for Campos-Chaves on January 8th, 2024.