Do Voluntary Compliance Programs Really Improve Environmental Law?

Cary Coglianese and Jennifer Nash have added yet another thoughtful contribution to the debates over whether voluntary compliance programs can significantly improve environmental law and policy. This thorough and careful empirical review of the most important voluntary environmental compliance programs is essential reading for anyone interested in environmental law and policy.

In the 1990’s and early 2000’s, a strong strain in environmental legal scholarship argued that environmental regulation was too punitive, inflexible, and rigid. According that scholarship, regulation punished regulated parties who sought, in good faith, to comply with the law; it imposed regulatory standards without regard to the benefits of the regulation as applied to a particular regulatory party, or of the feasibility or appropriateness of compliance for a particular regulatory party; it was unable to keep up with complex and rapid economic and technological change. Many of these critiques were initially raised and made prominent by Bob Kagan and Eugene Bardach, beginning with their 1982 book Going by the Book: The Problem of Regulatory Unreasonableness.

In response to these critiques, academics, politicians, and policymakers sought to make environmental law in particular, and administrative law in general, more flexible, more responsive to economic and technological change, and more positive in the incentives it gave to regulated parties. “New governance” administrative scholars developed new tools for regulation and standard setting in environmental law. Eric Orts proposed the use of “reflexive environmental law,” in which regulation sought to make regulated parties more proactive about how they could reduce environmental damage, through (for instance) reporting requirements about firm environmental performance. Similarly, Charles Sabel, Archon Fung, and Brad Karkkainen called for revamping environmental regulation to create a “rolling-rule” system in which localities would set standards at the levels they thought appropriate, and central authorities would ensure regular and frequent monitoring and distribution of information about the success of those regulatory standards. Their basic idea was that the monitoring and production of information would provide impetus for constant, “rolling” improvements in environmental performance by localities, without the need to resort to rigid “command-and-control” regulation. (For an excellent summary of the literature and these themes, see this piece by Orly Lobel.)

An important element of many of these reforms was to encourage greater use of voluntary measures to achieve environmental goals. If some regulated parties will seek to comply with, or exceed, existing environmental standards for reasons independent of the possibility of regulatory sanctions, then treating those parties as if they were violators might be counterproductive, as Kagan and Bardach noted. Reformers argued that voluntary measures allow for flexible and immediate responses to environmental problems, without concerns about industry obstruction or legislative inertia. They can be tailored to local conditions.

State and federal environmental agencies in the 1990’s began experimenting with a wide range of voluntary measures to try and provide positive rewards to those regulated parties who met and exceeded regulatory standards. EPA developed programs such as Project XL and 33/50. At the time these programs were quite controversial, and EPA has since discontinued a number of them. However, EPA still has a substantial number of voluntary programs in operation, and many states have continued their programs as well.

Cary Coglianese and Jennfier Nash have produced what is perhaps the definitive assessment of how successful these voluntary programs have been.  Coglianese and Nash’s piece is a close analysis of EPA “flagship” voluntary program, the National Environmental Performance Track. The Performance Track program operated for approximately eight years, and it included hundreds of companies. Those companies promised to meet and exceed EPA regulatory standards in return for publicity, recognition, and some modest relaxation of regulatory burdens (such as reduced inspection requirements). It was designed to ensure active and ongoing improvements by companies in environmental performance, and to facilitate cooperative and collaborative relationships between EPA and regulated parties. Coglianese and Nash collected an impressive amount of empirical research in conducting their assessment: analysis of EPA data on individual firm characteristics and compliance; interviews and close analysis of a small sample of firms; a survey of a wide range of facilities both within and outside of Performance Track.

Coglianese and Nash’s conclusion based on their study – and on a long history of research that Coglianese, Nash and others have led on similar voluntary programs – is that voluntary programs don’t produce much environmental benefit. EPA never was able to demonstrate that regulated facilities that participated in the Performance Track had better environmental outcomes than facilities that did not participate; in fact, the only major difference is that participating facilities were more likely to value outreach and cooperation with the public and the government than those that did not participate. Moreover, participation in this program, even with hundreds of participants, was a tiny fraction of the total number of entities regulated by the EPA.

As Coglianese and Nash note, one of the problems with voluntary programs is that to get substantial participation in them, agencies must provide substantial regulatory relief (or other tangible benefits). The Performance Track’s rewards simply were not enough to encourage widespread participation. But in order to justify large benefits, the EPA has to ensure that the regulated parties are truly making substantial, additional compliance efforts above and beyond the minimum standards – something that was not cost-effective or feasible for many of the participating parties. Coglianese and Nash frame this is a matter of political reality – if EPA did not impose strong demands in return for substantial regulatory benefits, it would face political pressure from Congress or environmental groups. I would add that if EPA did give those benefits without seeking major contributions from the regulated parties, which would be tantamount to rolling back regulatory standards.

The results of Coglianese and Nash’s study are important for environmental law in many ways. First, they provide another example of the important role that empirical research can play in the field.

Second, their work provides an important contribution to the debate over regulatory flexibility and “new governance” in environmental law. It is certainly true that voluntary government-run measures were only one component of various “new governance” proposals. “New governance” scholars noted an important role for government coercion in producing the information that would result in improved environmental performance, and they also noted the possibility that non-governmental pressures and organizations might create strong incentives for increased environmental performance. But voluntary government-run measures were still an important component of many “new governance” proposals. Coglianese and Nash’s work should prompt us to reevaluate the role of voluntary government-run measures in “new governance” reform proposals.

Third, their work indicates that voluntary measures are not a panacea. Indeed, to the extent that they depend on regulatory relief to inspire performance, they may not have a lot of potential. Instead, non-legal factors will be much more important drivers of voluntary measures – as Kagan himself concluded in a co-authored study of environmental behavior by paper mills.

 

Cite as: Eric Biber, Do Voluntary Compliance Programs Really Improve Environmental Law?, JOTWELL (April 28, 2015) (reviewing Cary Coglianese & Jennifer Nash, Performance Track’s Postmortem: Lessons from the Rise and Fall of EPA’s ‘Flagship’ Voluntary Program, 38 Harv. Envtl. L. Rev. 1 (2014)), http://lex.jotwell.com/do-voluntary-compliance-programs-really-improve-environmental-law/.
 
 

The Borders of Human Rights

Moria Paz, Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls (Stanford Public Law Working Paper No. 2526521), available at SSRN.

What is the relationship between international human rights law and migration? Though many might assume a simple one – human rights protect migrants – the reality is much more complex, raising profound questions about state sovereignty, politics, and the nature of international law. In her new paper, Human Rights, Immigration and Border Walls, Moria Paz maps out the central tension of this relationship, providing an insightful and balanced description of deep structural problems with the current human rights approach to migration.

Paz defines clearly for the reader the tension between sovereignty and individual rights that underpins the relationship between human rights and migration. She argues that the two normative doctrinal approaches available to resolve questions of migration necessarily clash. According to Paz, the human rights approach locates the right to a minimum level of human dignity in the individual, whether or not that individual has complied with formal immigration requirements. Yet these rights exist in a statist international legal regime that provides states with absolute authority to decide who can enter, “under what conditions, and with what legal consequences.” In other words, states and their members have the right to decide who can become a member of their political community and how the state’s resources will be allocated. This tension is, of course, grounded in age-old questions about international law’s ability to constrain state behavior. Yet the highly politicized nature of migration law sharpens this perennial conflict, leading to interesting and unexpected outcomes.

Paz argues that human rights courts and treaty bodies have increasingly resolved this tension in favor of human rights by expanding substantive protection standards in the direction of more absolute rights for migrants. The heart of her paper, and a terrific contribution to the literature, is here. She highlights an important structural problem with this approach: courts have extended the reach of human rights protection by grounding jurisdiction in theories of territory and effective control. In the context of migration, these theories are of course self-defeating, and Paz explains lucidly why they are so problematic. Here her paper steps beyond international law, and asks important questions about law itself and its ability to constrain politics. Paz offers a cautionary tale of overreach and backlash.

The structural problem she describes is an ongoing struggle with the legacy of Westphalia, the international legal scholar’s shorthand for the delineation of rights by territory and its proxies. Paz notes that this approach is problematic from both directions. For individuals, a territorial delineation of rights privileges proximity and capacity to gain access rather than substantive immigration or protection needs. It doesn’t work for the states either, as their allocation of migrants depends on whether they have accessible borders or suffering neighbors rather than on their ability to assist or incorporate those migrants.

As a result, Paz explains, not only has the human rights approach to migration failed, but it has actually given rise to border walls. She begins her explanation of this phenomenon by categorizing current jurisprudence into three buckets. First, the human rights tradition would find that states owe protective duties on both sides of the wall. In other words, jurisdiction is based on proximity to the border. Paz labels this the “wall as bridge” approach. Second, under a statist tradition, the state owes protective duties only to migrants who have entered the territory – the classic jurisdiction based on territory approach. This she labels the “wall as barrier” approach. Finally, Paz describes a compromise approach in which migrants obtain thin procedural rights outside and strong rights only inside the territory. In her words, the wall softens jurisdiction back to geography. Paz makes a compelling argument that these approaches are all problematic.

I won’t walk in detail through her exploration of “backdoor human rights protections” that the UN Human Rights Committee and European Court of Human Rights have implemented “to counteract sovereignty” – suffice to say that she offers a clear and detailed analysis of the case law that’s well worth a read. Paz describes the ways in which norms around family unity and private life as well as prohibitions on refoulement to torture have expanded to offer increased access to human rights by non-nationals. These adjudicators have both read norms more strictly and more absolutely, and have grown substantive protections beyond their original definitions. Yet jurisdiction has still been correlated with physicality grounded in territory. In other words, these human rights bodies offer more rights, but migrants have to reach a country’s shores in order to obtain those rights.

This grounding in territoriality enables backlash through “front-end strategies of immigration control.” Paz argues that because these rights attach to territorial access, states have responded by tightening their immigration policies through interdiction and border walls. In other words, in order to avoid activating these increasingly stringent human rights obligations, states have created physical boundaries to prevent entry by land or by sea. She offers several examples of human rights decisions about the latter situation, but notes that no human rights body has yet examined the question of rights that apply at a border wall.

Paz illustrates the shortcomings of current approaches by presenting this undecided question: when and how do human rights attach to individuals approaching border walls? Under the human rights tradition, she suggests, if human rights bodies guarantee rights to non-nationals approaching a wall, this may lead to withdrawal by states from their human rights obligations. The statist tradition suggests that a state has power to build a wall on its own territory and to decide to whom it owes obligations. Such an approach essentially would constitute a deferral to Northern states’ interests and a sacrifice of norms concerning universal and fundamental dignity. Finally, the compromise would be to distinguish between land and sea borders, providing different rights for different people. Again, Paz highlights the flaws in such an approach, as it would create too many distinctions that do not make sense.

The paper ends with a tantalizing proposal for reform. Paz suggests that international law should shift from its current concern with access to a focus on actual protection and consequences for the individual and the state. In terms of the individual, the international legal regime would focus on the nature of the misery to be alleviated and the process by which such misery should be assessed. For host states, this shift could create alternate means, apart from physicality, for distributing protective duties. Her vision leaves plenty of details to be worked out, which hopefully will be the topic of a future research project.

In the meantime, Paz has illuminated the central quandary in the relationship between human rights and migration. The current “focus on physicality . . . substitutes complex political criteria . . . with a set of arbitrary rules that require [answers to] relatively simple questions.” This approach hands to courts questions unresolved politically, thereby avoiding the messier, though potentially ultimately more effective, practice of negotiation, compromise, and politics.

Cite as: Jaya Ramji-Nogales, The Borders of Human Rights, JOTWELL (April 1, 2015) (reviewing Moria Paz, Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls (Stanford Public Law Working Paper No. 2526521), available at SSRN), http://lex.jotwell.com/the-borders-of-human-rights/.
 
 

The Open Access Advantage in Legal Education’s Age of Assessment

James M. Donovan, Carol A. Watson & Caroline Osborne, The Open Access Advantage for American Law Reviews (October 7, 2014), available at SSRN.

Open access (OA) scholarship is available online, without fees, and free of restrictive copyright and licensing provisions. As institutions of higher education implement a more metrics-driven paradigm, law schools are increasingly attentive to the quantification of both individual faculty and aggregate law school impact. Citation counts are one means of quantifying these impacts. Donovan, Watson, and Osborne build on their 2011 article, Citation Advantage of Open Access Legal Scholarship, which demonstrated that open access resources have a great impact on legal scholarship, (103 Law Lib. J. 553, 557). In this article, they work to develop a systematic and scientific explanation for why open access scholarship has a citation advantage in the legal education context.

The authors’ research shows that articles published simultaneously as print and open access law review articles provide at least a 50% citation advantage over their print-only law review counterparts. More specifically, they find that the aggregate cumulative OA advantage for new and retrospective works combined is about 53%; the OA advantage of newer works published during the years 2007-2012 is about 60%. Their research also indicates that OA articles are more heavily cited in the years immediately following an article’s publication and that OA articles tend to “command greater attention over the lifespan of the work” (Donovan et al, at 8).

The authors also explore the measurement of the OA advantage to a law review as it relates to the institution’s ranking in the U.S. News & World Report. They conclude that the greatest OA advantage is for a journal whose home institution is in tier 2, 3, or 4 of the U.S. News & World Report law school ranking. For those tiers, the aggregate cumulative OA advantage for new and retrospective works combined is about 51% compared to an OA advantage of new works published during the years 2007-2012 of about 89% for tiers 2 and 3, and 81% for tier 4. For journals at tier 1 schools, the OA impact decreases significantly because journals at higher ranked institutions have high levels of exposure even without OA. In this tier, the aggregate cumulative OA advantage for new and retrospective works combined is about 11% compared to an OA advantage of new works published during the years 2007-2012 of about 16%.

As the authors point out in their conclusion, this article is a sobering reminder that readily available information on the Internet will often be the first, and in some cases the only, source consulted. Consequently, OA publishing offers faculty the potential opportunity to increase their work’s exposure in the field by being readily available, and therefore, is fertile ground for the OA citation advantage. According to Donovan, Watson, and Osborne, the OA citation advantage for a law review article is threefold: an OA article gets attention sooner; about half of the citations to an OA article will be from the first six years of the publication’s existence; and OA articles receive attention for a sustained period of time that exceeds the length of attention received by its non-OA counterparts. Depositing faculty scholarship in an open access repository, whether in SSRN or in an educational institution’s repository, is a simple, tasteful way that faculty can promote their scholarship while supporting the open access movement.

Cite as: Elizabeth Adelman, The Open Access Advantage in Legal Education’s Age of Assessment, JOTWELL (January 27, 2015) (reviewing James M. Donovan, Carol A. Watson & Caroline Osborne, The Open Access Advantage for American Law Reviews (October 7, 2014), available at SSRN), http://lex.jotwell.com/the-open-access-advantage-in-legal-educations-age-of-assessment/.
 
 

Breaking the Deadlock in Bipartisan Election Administration

Jennifer Nou, Sub-Regulating Elections, Sup Ct. Rev. (forthcoming 2014), available at SSRN.

What should courts do when bipartisan agencies deadlock on an interpretation of a statute? That conundrum recently arose when the Election Administration Commission (EAC) addressed the meaning of the National Voter Registration Act (NVRA). Specifically, the EAC had to decide whether an Arizona requirement that voter registrants provide proof of their citizenship violated the NVRA, as a refusal to “accept and use” the federal mail-in registration form. The two Democrats on the four-person Commission found that the proof-of-citizenship requirement constituted a refusal to use the federal form while the two Republicans found that it did not. When the federal Court of Appeals reviewed the agency action, the judges seemed to have three options: Defer to the interpretation of the Democratic commissioners; defer to the interpretation of the Republican commissioners; or defer to neither and independently construe the statute. In this context of deadlock, there was no clear justification for deferring to either interpretation. Choosing to defer to one partisan interpretation over the other might subject the court to a Bush v. Gore-like charge of bias. But the decision to independently construe the statute would have had costs as well. It would have denied the court expert guidance in its determination of the meaning of the statute. None of the three options were particularly appealing.

In her innovative and illuminating article, Sub-Regulating Elections, Professor Jennifer Nou engages this problem of deadlock in election administration, and suggests a broad, creative solution. The two principal election agencies, the EAC and the Federal Election Commission (FEC), have similar designs in that they both have even numbered commissioners (four for the EAC and six for the FEC) with the two major political parties equally represented. In the current context of political polarization where decisions about the meaning of election statutes often have high stakes, the problem of deadlock has become endemic to election administration. One response would be to change the design of these commissions by making them odd-numbered or eliminating the requirement of partisan balance. But as Nou correctly notes, these design changes are unlikely anytime in the near future.

Nou instead proposes a novel solution to the problem of deadlock. This solution is responsive to what she sees as the failures of the prevailing judicial approach to agency deadlock found in the D.C. Circuit Court of Appeals. When deadlock occurs, the D.C. Circuit breaks the tie by giving heightened Chevron deference to the decision of a bloc of commissioners to dismiss the complaint. This response to deadlock reduces incentives for bipartisan agreement because both blocs of commissioners can veto the actions of the other. This might be a good thing depending on how one conceives the role of these agencies. A cynic might suggest that the agencies’ design features of an equal number of commissioners from each party and a majority vote rule to accept a complaint were intended to create just this sort of deadlock in order to narrow the scope of agency action. Reinforcing vetoes of agency action with Chevron deference is therefore the right response. But a more optimistic account of the agency design would suggest that the bipartisan design and majority vote rule was intended to ensure a deliberative process of decision-making guided by expertise rather than partisanship.

If that more optimistic account of agency design is the right one, then it would be better for the court to apply a doctrinal approach that both incentivizes bipartisanship and provides opportunities for judicial reliance on agency expertise. Nou’s doctrinal solution represents such an approach, and thus implicitly favors a more optimistic account of agency design. Nou’s solution asks the court to apply an alternative Skidmore deference standard and “pierce the veil” of the administrative agency. When agencies deadlock, courts in their assessment of the meaning of the statute should not give heightened Chevron deference to the interpretation of one bloc of commissioners. Instead, Nou argues that the less deferential, more probing Skidmore deference standard should be applied to the judgments of agency staffers that work below the commissioners. Under the Skidmore deference standard, courts look to the “‘thoroughness’ of the agency actor’s consideration, the reasoning’s ‘validity’ and ‘consistency,’ and, more generally, any factors which give an interpretation power to persuade, if lacking power to control.” While some view Skidmore deference as a tool courts use when they want to independently decide the meaning of statutes, Nou imagines the standard as a means to break through deadlock and provide courts with expert guidance in the interpretation of statutes.

Nou would pierce the agency veil when the commissioners deadlock, allowing the court to look to and rely on the expert judgment of agency staffers within the commission. The persuasiveness of the expert judgments of agency staffers would depend on factors related to the political insulation of the decision maker. Such indicia of political insulation would include “tenure and salary protection, methods of appointment, and the degree of professionalization.” The stronger the indicia of political insulation of the agency actor, the more the court should be willing to defer to that election official’s expert judgment, as found in sub-regulatory informal guidance documents, opinion letters, or advisory committee recommendations.

Granting deference to these agency staffers will not only provide courts with reasoned expert guidance in their interpretation of statutes, but it could also foster cooperation among the commissioners. Fearing that deadlock will result in their judgments being bypassed by the court, the commissioners would have greater motivation to overcome their differences and reach agreement. This might lead to the conditions that allow for a more deliberative agency decision-making process in which the commissioners are able to put aside partisanship and decide on the basis of the available information what interpretation best advances the goals of the statute. Ultimately, we might see a shift toward more bipartisan agencies as a design to ensure agency action driven by expertise rather than partisanship.

Nou’s article is excellent in multiple aspects, but what ultimately makes it stand out is Nou’s extremely sophisticated and thoughtful marrying of election and administrative law. She provides a fascinating new lens through which to understand both areas of law as she paves the path toward the development of “more robust theories of federal election administration.” And perhaps most importantly, she provides a solution that aside from its innovation is one that we can imagine courts putting in place. If they did, we might finally see what many consider to be dysfunctional bipartisan agencies begin to function again.

Cite as: Bertrall Ross, Breaking the Deadlock in Bipartisan Election Administration, JOTWELL (December 16, 2014) (reviewing Jennifer Nou, Sub-Regulating Elections, Sup Ct. Rev. (forthcoming 2014), available at SSRN), http://lex.jotwell.com/breaking-the-deadlock-in-bipartisan-election-administration/.
 
 

Citizenship for the Worthy Children

Immigrant children are the subjects of varying narratives. To some, immigrant children fleeing Central America are invaders, while others view these children as innocent bystanders who are reaching out to the United States for protection from unimaginable violence. The narrative matters and it influences public perception. In Defining American: The DREAM Act, Immigration Reform and Citizenship, Elizabeth Keyes takes a close look at the narratives pursued in support of the DREAM Act and identifies danger posed by a narrative that promotes legal status and eventual citizenship for worthy and blameless immigrants. Keyes takes a narrative that seems unobjectionable and uncovers a major negative consequence.  Creating the worthy category necessarily creates a category of individuals undeserving under the law.

The Development, Relief, and Education for Minors Act, or DREAM Act, has been on the congressional agenda for almost 15 years, but has yet to make its way to the President for signature. The DREAM Act would put certain individuals who currently lack legal immigration status on a path to legal status, with the potential of eventual US citizenship. The criteria generally include entrance to the United States before the age of 16, achievement of certain educational milestones or military service, continuous residence in the United States, and possession of “good moral character.” In the face of legislative defeat of the DREAM Act, the Obama administration used similar criteria to implement the Deferred Action for Childhood Arrivals (DACA) program, which does not provide legal immigration status but does provide work authorization and a promise that the US government will not pursue deportation for two years.

Keyes focuses her attention on a narrative used to promote the DREAM Act and its policies of inclusion and formal recognition of attachment to the United States. Keyes identifies a “strategy of citizenship based on worthiness,” and then examines the hidden costs of that strategy. Keyes argues that promoting the DREAM Act as benefitting blameless immigrant youth with stories that connect with the traditional American dream narrows the category of those who generally are deemed worthy of citizenship.

By examining the efforts of those supporting the DREAM Act, Keyes identifies an overarching narrative that connects the story of DREAM Act eligible youth to the quintessential story of the American dream. Keyes explains that the “typical DREAMer narrative is one of success against great odds.” Immigrant youth, through no fault of their own, were brought to the United States without permission. Despite these beginnings, the DREAM Act would recognize those who have overcome the odds and achieved a high school diploma or more. These immigrants played no role in creating the fact of their illegal status—they are blameless—and their commitment to the American values of success and hard work establishes their worthiness as well. Keyes also notes that this narrative emphasizes the patriotism of the youth, either through qualifying military service or more generally through attachment to the United States. Those arguing in favor of the DREAM Act focus on how these immigrant youth already feel American and that their lack of citizenship is a formality. The idea is that these individuals are already citizens in their hearts, if not in the formal records of the US government. The narrative also promotes virtue by excluding all of those with criminal backgrounds except for the most minor offenses.

While Keyes recognizes that this narrative is not disingenuous and that it serves the noble purpose of pushing for legal status for a deserving and racially diverse group of foreign nationals, Keyes opens our eyes to the danger of pursuing a narrative that divides immigrants into categories of worthy and not worthy. In Keyes’ words: “The worthiness narrative that makes the DREAM movement compelling raises a challenging question: If worthiness is the way that these immigrants of color are able to claim citizenship—if the politics demand that high burden—does that open the door to denying citizenship to those deemed unworthy?”

This is, indeed, a challenging question, and Keyes guides us throughit. Keyes points out that the DREAM Act narrative of blameless children inherently creates a category of parents who are to blame, and generally sets a high bar for sorting immigrants worthy of gaining legal status from those who are unworthy. This has consequences for the debate over immigration reform generally, which would potentially provide a path to legal status for a wider group of individuals, including those who are arguably “to blame” for their current illegal status. Also, Keyes explains that the narratives of worthiness, virtue and patriotism make it possible to argue that those who have not achieved educational objectives or whose connections to the United States are not as lengthy are too different from the deserving group, the DREAM Act kids, to merit their own path to legal status. Keyes is not optimistic that the DREAM Act narrative will have positive trickle down effects for other immigrant groups. She views any coattails as very short.

Keyes presents us with a conundrum worthy of further inquiry. The dangers Keyes identifies illuminate the difficulties of line drawing once immigration advocates accept the broad proposition that some are more or less worthy of formal status within American society. As Keyes identifies, this phenomenon affects more than just the debate over who should be eligible to earn legal status. It also implicates birthright citizenship, as proponents of eliminating birthright citizenship have seized upon a narrative that those who benefit from US citizenship at birth simply because of geographic location in the United States at birth are not as deserving as those who earned US citizenship through perceived greater connections to the United States.

Keyes’ article leaves unanswered the question of where Keyes would draw the line between worthy and unworthy, or whether she would not draw a line at all. Keyes leaves us to wonder what alternative narratives DREAM Act proponents should pursue. Nevertheless, Keyes’ article opens our eyes to the downsides of the DREAM Act narrative and puts us in a position to examine questions that naturally follow her analysis. While political effectiveness may demand narratives that make immigration reform more palatable for some, Keyes reminds us that powerful narratives may have powerful unintended consequences.

Cite as: Jill Family, Citizenship for the Worthy Children, JOTWELL (November 17, 2014) (reviewing Elizabeth Keyes, Defining American: The DREAM Act, Immigration Reform and Citizenship, 14 Nev. L. J. 101 (2014)), http://lex.jotwell.com/citizenship-for-the-worthy-children/.
 
 

Green Go! – The Military’s Sustainability Mission

­­Sarah E. Light, The Military-Environmental Complex, 55 B.C. L. Rev. 879 (2014).

“Green Go!” The U.S. battle cry in the Mexican-American War that, according to some etymologists, earned Americans their nickname as “gringos” offers a fitting description of the Department of Defense’s growing interest in sustainable energy generation and use. In The Military-Environmental Complex, Sarah E. Light takes stock of the military’s complicated, often conflicted relationship with environmental objectives and explores the drivers behind the armed forces’ recent promotion of sustainable energy. Building on the military-industrial complex’s history of fostering technology innovation while also enabling abusive rent-seeking, Light offers recommendations to ensure that the emerging military-environmental complex strikes a socially beneficial balance between mission objectives and broader environmental goals.

From an environmentalist perspective, the military’s many statutory and regulatory exemptions from environmental laws that conflict with its national security mission raise concerns that military and sustainability objectives are inherently at odds with one another. But Light makes a convincing case that both types of objectives may, in fact, be more aligned than is commonly recognized.

As the nation’s single largest consumer of energy, the Department of Defense has a natural interest in enhancing the efficiency of its energy use. The case for more efficient and, hence, more sustainable energy technologies and practices is even more compelling for forward operating bases whose fuel costs are orders of magnitude higher than at our local gas station, not to mention the risks to soldiers who must escort fuel convoys through the theater of war. In Light’s words, “[e]nergy costs – both economic and political – are high, and … the DoD’s costs can be measured not in dollars, but in lives.” Accordingly, the armed forces characterize climate change as a “threat multiplier” and energy efficiency as a “force multiplier.” Energy efficiency and on-site renewable energy generation, among others, have the potential to unleash the military from the “tether of fuel.”

Just in case such intrinsic motivation may prove insufficient, a suite of congressional and presidential mandates both require and enable the military to bolster its sustainability efforts. Of particular interest to Light’s analysis are military-specific statutory authorities that allow the Department of Defense to serve as financier, testbed, and customer of innovative energy technologies. The article notes the Pentagon’s long-term contracting authority for energy procurement for up to 30-year terms, enhanced-use leases with in-kind remuneration such as power from a privately owned and operated solar facility on military land, and energy-savings performance contracts.

Viewed through the lens of technology innovation, the military’s recent interest in sustainable energy builds on the military-industrial complex’s track record as a catalyst for novel technologies that have since become fixtures of civilian life, including GPS navigation, transistors, semiconductors, and the internet. Once more, Light tells us, the Department of Defense is stepping in to provide critical funding and technological validation, and to create markets bridging the notorious valley of death between successful demonstration and first commercialization of new technology, this time for the benefit of solar panels, battery storage, and other emerging energy technologies. These striking parallels raise the question of what exactly it is that distinguishes Light’s military-environmental complex from the traditional military-industrial complex. Is it the (ancillary) environmental benefits that energy-optimizing technologies deliver in addition to enhancing the military’s mission objectives? And what is the relationship between the two complexes?

If there’s a critique of Light’s insightful piece it is that she remains somewhat vague on this pivotal point. Her closing recommendations suggest a vision for the military-environmental complex that battles as much against the undue influence and pork barrel politics marring the military-industrial complex as it combats climate change and other environmental problems. In the process, the article lays out the framework for a more equitable, more efficient, and more environmentally oriented version of the traditional military-industrial complex. One can see why Light chose to hone in on the environmental or, rather, energy aspects of the military complex. A broader framing, however, could help ensure that her thoughtful recommendations regarding the political process, innovative procurement authorities, and agency coordination, among others, will be considered beyond the environmental aspects of the military-industrial complex. Light’s proposed research agenda to further investigate the impact of military R&D funding and procurement on the development and diffusion of emerging clean energy technologies gives cause for hope that her follow-up work will more closely engage with and seek to answer these critical questions. I, for one, look forward to learning what she finds.

Cite as: Felix Mormann, Green Go! – The Military’s Sustainability Mission, JOTWELL (October 20, 2014) (reviewing ­­Sarah E. Light, The Military-Environmental Complex, 55 B.C. L. Rev. 879 (2014)), http://lex.jotwell.com/green-go-the-militarys-sustainability-mission/.
 
 

Those Are Pearls That Were His Eyes

Full fathom five thy father lies;
                Of his bones are coral made;
Those are pearls that were his eyes:
                Nothing of him that doth fade
But doth suffer a sea-change
Into something rich and strange.
Sea-nymphs hourly ring his knell
                                    Ding-dong
Hark! now I hear them – Ding-dong, bell.
–William Shakespeare, The Tempest

During the War of 1812, Philadelphia’s Academy of Fine Arts petitioned a Nova Scotia admiralty court to release works of art bound for it from Italy aboard an American merchant ship captured by the British and brought to Halifax. The court granted the petition distinguishing, for the first time in a published judicial opinion, cultural property from other chattel, stating that works of art are “entitled to favour and protection.”1 By creating an exception for paintings and prints, the court gave cultural property a special legal status, the contours and extent of which remain elastic. Two centuries after the Nova Scotia court christened the field of cultural property law, Valentina Vadi has written an insightful article seeking to determine whether a norm of customary international law is developing to distinguish and provide special legal treatment for a particular kind of cultural property: sunken warships.

Sunken ships are an especially complicated form of cultural property. A ship’s wreckage and cargo are often historically and aesthetically important and immensely valuable monetarily; their archaeological context preserves unique and irreplaceable information; their human remains implicate practices and traditions relating to treatment of the dead; and some pose environmental hazards to flora and fauna (both of which are deemed cultural property under a 1970 UNESCO cultural property convention). Because new technologies are facilitating the discovery, identification, and recovery of shipwrecks, it is reasonably foreseeable that disputes over them will continue. Thus, the growing scholarship on shipwrecks is timely, and Valentina Vadi’s inquiry, in particular, responds to an important question.

Claims involving sunken ships fall into an especially complex web of legal issues, and this web is nowhere more complex than in cases involving sunken military vessels. One would be hard pressed to identify other disputes that present an equivalently complicated set of laws. These cases bring into play ancient legal doctrines of salvage and finds; international conventions, treaties, and agreements; federal and state law; and customary international law. Complicating matters further, the range of stakeholders in these cases stretches far beyond the apparent ones – the flag state, the country where the wreck is located, and the modern-day discoverer – to include archaeologists, historians, collectors, scientists, amateur divers, environmentalists, descendants of the dead, journalists, and insurance underwriters, for starters.

The legal and ethical issues presented in shipwreck cases depend, in part, on the type of ship involved. Wrecks may be of passenger vessels (for example, the Titanic –sunk 1912, rediscovered 1985), merchant ships (the Kyrenia shipwreck – sunk 4th century BCE, rediscovered 1967), or, the focus of Vadi’s article, military ships (the Nuestra Señora de Atocha – sunk 1622, rediscovered 1985). That said, however, even classifying a wreck as a sunken military vessel takes a court into murky waters with some arguing that a warship loses that characteristic when it is no longer under military command and no longer functioning as a military vessel. Others argue that a military vessel retains its distinct character even on the ocean floor. Other fundamental issues are also unsettled. For example, what constitutes the wreck: the ship alone or the ship and its cargo? When human remains are discovered does the site require special treatment as a burial ground? Vadi addresses these concerns in describing two fundamental questions raised in recent cases.

The first is the determination of abandonment. Common law principles of salvage apply only to ships that have not been abandoned: the ship’s owner has the prerogative to refuse salvage. An abandoned ship, however, is subject to the law of finds, not to the law of salvage. By promising a financial award to the salvor, salvage law creates an incentive to risk life and property to save life and property. Title to salvaged property does not transfer to the salvor, however, until a court orders a salvage award. In the law of finds, as any six-year old knows, finders-keepers: those who recover an abandoned ship and cargo obtain good title to the recovered property. Thus, whether there is, or should be, a presumption of abandonment, favoring salvors, or a presumption of non-abandonment favoring the ship’s flag state remains unsettled. Second, when a sunken warship is discovered in the territorial waters of another nation tension develops with flag nations typically asserting continuing dominion and control of the wreck, a position in conflict with coastal nation sovereignty.

In determining whether there is an emerging norm of customary international law applicable to sunken warships Vadi observes that existing multilateral treaties provide only modest guidance. The extent to which provisions for military ships in the United Nations Convention on the Law of the Seas extends to sunken warships is not clear; moreover UNCLOS addresses cultural heritage issues only generally. And while UNESCO’s 2001 Convention on the Protection of the Underwater Cultural Heritage does address sunken military vessels, very few major maritime countries are states parties. Thus, Vadi turns primarily to case law and scholarship through the lens of four “paradigms:” sovereign immunity, property rights, cultural heritage, and humanitarian concerns. Vadi details the law and significance of each of these issues and, perhaps more importantly, describes how they overlap, reinforce one another, and conflict. While noting that an active debate remains as to whether a customary international norm exists granting sunken warships special protection, she concludes that “opinio juris and state practice are gradually coalescing” in that direction.

For those who study cultural property law, Vadi’s article provides a good reminder of the complexity of the issues presented in cases involving (often long-forgotten) sunken military vessels. For those in other fields, Vadi opens a door to understanding the range of factual, legal, and procedural matters these wrecks present to litigants and courts. For all readers, especially in her discussion of the cultural heritage paradigm, Vadi indicates why in cultural heritage disputes ethical considerations are often as pressing as legal ones.



  1. The Marquis de Somerueles, Stew. Adm. 482 (1813). []
Cite as: Stephen Urice, Those Are Pearls That Were His Eyes, JOTWELL (September 16, 2014) (reviewing Valentina Vadi, War, Memory, and Culture: The Uncertain Legal Status of Historic Sunken Warships Under International Law, 37 Tul. Mar. L. J. 333 (2013)), http://lex.jotwell.com/those-are-pearls-that-were-his-eyes/.
 
 

Is There Any Disincentive to Deceiving an International Court or Tribunal?

W. Michael Reisman and Christina Parajon Skinner, Fradulent Evidence Before Public International Tribunals: The Dirty Stories of International Law (Cambridge University Press 2014).

Although its publication may come a bit late for our summer reading, Professor Michael Reisman’s Herch Lauterpacht Memorial Lectures have finally (with the co-authorship of Christina Skinner) been released by CUP in the form of a long-awaited 222-page monograph, including a detailed and valuable index. Occasionally the passage of a decade (in this case somewhat more) between the spoken word and its reformulations in print leads to an attenuation of the bluntness of the message. Innocents whose sensibilities with respect to the realities of international adjudication may have been assaulted in the course of those three wintry evenings in Cambridge can now verify that the carryings-on reviewed by the authors are still captured with uncompromising directness, as the subtitle suggests. Given the essentially consensual nature of all international adjudication, this study should be given concerned attention in relation not only to permanent courts but also to arbitrators whose mandate is limited to a single case.

On one view, we really shouldn’t be the least shocked. After all, States repeatedly find it legitimate to put their own soldiers in harm’s way, and presumably think the slaughter of young people from neighboring countries is justified, in order to secure territorial ambitions or to maintain what they think of as their “credibility”. What then is a bit of forged evidence (or even a case entirely based on it) among urbane friends, when used for the same purpose but on the legal battlefield?

Public international tribunals are notoriously poor fact-finders, and the larger their membership the greater their fecklessness. Naturally this deficit reveals itself when the factual inquiry involves allegations of forged evidence. And some of the causes of paralysis in such instances are common to the more general pattern of inadequacy: the absence of effective powers of compulsion, the stubborn disinclination to hear witnesses or even to engage neutral experts versed in matters of which the putative fact-finders are at best amateurs, and indeed the frequent selection of judges and arbitrators whose career paths as lawyers never required them to venture outside the realms of high abstraction. But something far more sinister is at work here, namely the implicit acceptance that la raison d’Etat sanctifies everything, and the implicit sub rosa code that the international community should turn a blind eye to “practices that would be condemned in developed national legal systems but have hitherto been ignored by international tribunals and international scholarship”.1 The legal profession’s reaction has been “baffling”, the authors write, and identify the stakes as follows:

… cases of fraudulent evidence which have been practiced on public international courts and tribunals … mar the noble vision and ennobling practice of sovereign States voluntarily submitting their disputes to courts and tribunals for peaceful resolution in accordance with international law; in raising doubts about the accuracy of international decision, they diminish the future willingness of States to resort to tribunals. Moreover, corruption of the truth often extends beyond the hearing room of a single case: in an interdependent world, lies which manage to distort judicial or arbitral decision in one case can contaminate many others. Judge Schwebel, to whom this book is respectfully dedicated, put it concisely: “they undermine the essence of the judicial function.” 2

The authors examine in detail a number of incidents before international fora, some of them very familiar cases which their research reveals as having had somber undersides. The culpable States are a motley crew, including some usually thought of as enjoying a high degree of institutional maturity. Their brazenness and cynicism in many of these instances are startling, but less so than the studied indifference of many judges, arbitrators, diplomats, and (for all their verbosity in pronouncing on the logic and doctrinal orthodoxy of judgments and awards) commentators.

One understands the impulse behind invocations of la raison d’Etat: a public objective the pursuit of which is said to be so indispensable as to justify unsavory means. The terrible problem is that expediency and hypocrisy are habit-forming, and before you know it the indispensable public end becomes anything which suits the purposes of officials who adorn themselves with the raiments of the State. Needless to say, they undermine the stance of legions of highly principled public servants who understand that must is lost when such behavior is condoned or ignored: trust in the institutions charged with ensuring the rule of law in the international community.

Reisman and Skinner are telling us that we have a serious problem, not how to solve it. They would clearly have preferred an international system in which adjudicators do not sidestep the inconvenient discovery of fraudulent behavior by disputants by allowing them to plead their cases on alternative grounds which do not rely on the discredited evidence. This practice means that there is little disincentive for unscrupulous attempts to deceive the decision-maker, but such has been the (low) road taken and the authors do not suggest that the dynamics of the process leave grounds to hope for a change. They note proposals for regulating the conduct of international advocates, but for various reasons do not find them realistic. The dynamics of the international processes and the divided loyalties they create (often resolved against the notion of a duty of candor to the tribunal) are described in ways of which this brief note cannot give a substantive account, but only affirm that this is previously unexplored and disturbing territory.

Public international adjudication it but one form of international dispute resolution in which the decision-makers’ authority is ultimately and necessarily based on the consent of the disputants. One must therefore wonder what aspects of these “dirty stories” tend to replicate themselves in the much larger field of international arbitrations involving private parties, and whether this question posed by the authors could be posed replacing the word “states” with the generic “parties”:

Are we entitled to conclude that from the perspective of international tribunals, they have no ancillary duty to police the honesty of states and their representatives but rather to rely on the cleansing dynamic of the adversarial process, to work through the evidence, as best they can, and to reach the right conclusion?3

Some will answer as Judge Stephen Schwebel did in Nicaragua v United States:

Deliberate misrepresentations by the representatives of a government party to a case before this Court cannot be accepted because they undermine the essence of the judicial function. This is particularly true where, as here, such misrepresentations are of facts that arguably are essential, and incontestably are material, to the Court’s judgment. 4

All of us are left to ponder how the international community could find effective ways to reject what “cannot be accepted”, if that phrase is to covey anything more than a noble sentiment.



  1. The quoted words appear on the back cover, ostensibly anonymous or attributable to the publisher; but does anyone pretend they weren’t written by the authors? []
  2. P. x. []
  3. P. 199 []
  4. Nicaragua v. United States, 1986 I.C.J. 14, 27 (June 27) (dissenting opinion of Judge Schwebel). []
Cite as: Jan Paulsson, Is There Any Disincentive to Deceiving an International Court or Tribunal?, JOTWELL (August 4, 2014) (reviewing W. Michael Reisman and Christina Parajon Skinner, Fradulent Evidence Before Public International Tribunals: The Dirty Stories of International Law (Cambridge University Press 2014)), http://lex.jotwell.com/is-there-any-disincentive-to-deceiving-an-international-court-or-tribunal/.
 
 

A Legal Beagle’s Voyage

Nicholas A. Robinson, Evolved Norms: A Canon for the Anthropocene, in Rule of Law for Nature 46-71 (Christina Voigt ed. 2014).

Environmental law strives to improve the relation of Homo sapiens to the ecosystems that support human life and all other life on earth. Ever since Darwin we have known that just as each species affects its environment, the environment pushes back, exerting selective pressure in favor of adaptive variations. Evolution is the long-run product of ecology. At its best, environmental law puts this understanding to work in the service of people and nature. And yet, Professor Nicholas Robinson observes, the study of how human law shapes the planet’s evolutionary future barely acknowledges the role of biological evolution in shaping human law.

In Evolved Norms, Robinson sets out to correct this by connecting the contemporary emergence of consensus environmental law to the evolutionary emergence of widespread behavior patterns favored by natural selection. Drawing on sources in both the biological and social sciences, Robinson argues that humans have evolved instinctive, “hard-wired” normative preferences for cooperation, biophilia, and resilience. These norms are reflected in design principles that have shaped existing environmental laws – and that should be relied on to structure the global environmental law we will need to confront future ecosystem disruptions both imminent and distant.

An impressive range of positive law at every level supports Robinson’s thesis that these principles undergird the architecture of much existing environmental law. Evolved Norms finds them in New York State statutes, in constitutions of nations around the world, and in international agreements, as well as in high court decisions of many countries. They emerge in diverse settings, not all of which have been categorized, traditionally, as environmental law. The cooperation principle generates agreements for mutual aid in times of disaster and for collective management of common resources. The biophilia principle leads to legal protection of natural habitats and of biodiversity. The resilience principle promotes laws facilitating insurance against disaster.

A moment’s consideration that human beings are organisms, as subject to natural selection as any other species, suffices for the conclusion that these evolved norms must have some biological basis. Yet Robinson’s claim that cooperation, biophilia, and resilience have become built-in principles of environmentally sensible behavior seems based more in dogged optimism than in observed reality. After all, if these supposedly instinctive norms truly dominated human behavior (and the legal systems humans build to channel their behavior), the world would not be facing the “existential challenges” Robinson rehearses at the outset of Evolved Norms.

Robinson acknowledges this tension. He allows that “[t]he transcendence of ‘ecological instincts’ will occur incrementally and haphazardly” because the evolved norms favoring stewardship are often in tension with “maladapted ‘economic instincts.’”

The unpleasant question, though, is whether humans’ “economic instincts” really are “maladapted” in a Darwinian sense. The genetic traits that made Homo sapiens capable of such profound ecosystem modification, after all, are the same traits that conferred on our species such astounding evolutionary fitness. These phenomena cannot be separated, from the harnessing of fire to the use of tools to the domestication of other species and on down through human history to today’s extraction of previously inaccessible fossil fuels. Yes, there are examples of human settlements or societies that have failed because of long-term consequences of behaviors that seemed adaptive in the short term. But globally, our species has been – to invoke one of Robinson’s preferred evolved norms – resilient enough to succeed in spite of the apparent havoc it has wrought on other parts of the ecosystem. “Economic instincts,” then, seem to be a manifestation of Darwinian “fitness.”

On this question Robinson would have done better to distinguish more sharply between genetic evolution and cultural evolution. Robinson quotes Aldo Leopold’s observation that human instincts foster ecological competition while human ethics foster cooperation, yet Leopold understood that ethics directly restrain fitness-maximizing behavior: “An ethic, ecologically, is a limitation on freedom of action in the struggle for existence,” he wrote.1  Biological evolution has provided humans with the capacity to develop and apply such ethics: to conclude, for example, that it is possible to attain, as Robinson puts it, “sufficiency” in resource consumption. Cultural evolution, a product of genetics and environment, leads us, at least at some times and in some ways, to put that capacity into practice. This is remarkable in the biotic world. After all, the lynx preserves the hare population not because of ethical concern or self-interested foresight, but because when hares become scarce the lynx population crashes before the hares are all gone.

Sociobiology too has something to say about this, of course. Since the field’s founding, one of its central occupations has been to explain how natural selection could favor the spread of genes that produce altruism, cooperation, and other behaviors that seem contrary to maximizing individual fitness. Often the answer lies in genetic relationship: natural selection can favor behaviors that benefit siblings, offspring or other relatives even at some personal cost. As Robinson notes, evolved cooperation on this basis can extend too narrowly, if collective action is needed in response to problems of intertribal, international, or global scope.

In other situations, when the pursuit of individual self-interest in nature’s economy produces dysfunctional results (as it sometimes does in human economies), natural selection provides a needed if painful corrective. When humans introduced the myxomavirus to Australia in an effort to control the rabbits humans had previously introduced to the continent, the most virulent strain quickly was replaced by less virulent strains. The virus is spread by mosquitos, and mosquitos will not bite a dead rabbit. The rapid reproductive success of virulent viruses was too quickly fatal to their host organism and thus proved counterproductive to the virulent strain’s long-term survival. Mutation and natural selection promptly evolved viruses that killed less efficiently but spread more effectively. The rabbits in turn evolved resistance to the virus.2

The long-term success of myxoma virus in Australia depended on a balancing act – a type of stewardship of the virus’s host. Humanity’s long-term success depends on a balancing act that includes proper stewardship of our species’ host, Earth. Robinson’s insight that environmental law is based on, and should amplify, genetic traits that produce norms favoring such stewardship is an important contribution to environmental law scholarship. Robinson calls for “[s]tudies in law and sociobiology [to] begin in their own right.” It is a call environmental law scholars should heed.

Darwin understood that an organism’s inherited traits could be shaped by selection. After Watson and Crick elucidated the structure of DNA, evolutionary biology began a “grand synthesis” joining observational and theoretical population dynamics to genetics. Today, the power to decode whole genomes, coupled with increasing understanding of the environmental and epigenetic influences on gene expression, is rewriting large swaths of taxonomy and evolutionary theory once again.

It should be but a short, although difficult, leap to incorporate this biological learning into the study of law. Already neurobiology is undermining some premises of criminal law and the law of evidence, psychology is disrupting the claims of rational-choice legal theories, genomics is influencing the law of toxic torts. It makes perfect sense for evolutionary insight to inform the law of ecological stewardship. Nicholas Robinson’s Evolved Norms may not be to environmental law what The Origin of Species is to evolutionary biology. But Robinson deserves praise for having had the courage to step aboard the legal H.M.S. Beagle and begin the exploration.



  1. Aldo Leopold, A Sand County Almanac 202 (1949). []
  2. Peter J. Kerr, et al., Evolutionary History and Attenuation of Myxoma Virus on Two Continents, 8:10 PLOS Pathogens 1 (Oct. 2012). []
Cite as: Steve Gold, A Legal Beagle’s Voyage, JOTWELL (July 1, 2014) (reviewing Nicholas A. Robinson, Evolved Norms: A Canon for the Anthropocene, in Rule of Law for Nature 46-71 (Christina Voigt ed. 2014)), http://lex.jotwell.com/a-legal-beagles-voyage/.
 
 

The Substantive Criteria Underlying Birthright Citizenship

D. Carolina Núñez, Beyond Blood and Borders: Finding Meaning in Birthright Citizenship, 78 Brooklyn L. Rev. 835 (2013).

The Fourteenth Amendment of the United States Constitution grants birthright citizenship to all individuals born within the territory of the United States, with an exception for the children of diplomats. Consequently, the children of unauthorized migrants born in the United States are United States citizens. A number of individuals, including members of Congress, contend that birthright citizenship serves as an incentive for unauthorized migration. As recently as January 3, 2013, the House of Representatives considered a bill that would limit constitutional birthright citizenship to the children of U.S. citizens, lawful permanent residents, and noncitizens serving in the armed forces. Carolina Núñez’s article makes an important contribution to this debate, and to the academic literature on citizenship and membership more broadly, because it offers substantive criteria for determining who should have birthright citizenship in the United States and because it analyzes a variety of proxies for measuring these substantive criteria.

Through an examination of post-American-Revolution cases and the congressional debates for the Fourteenth Amendment, Núñez identifies three substantive factors that have been critical in making membership decisions: mutuality of obligation, community ties, and community preservation. Núñez introduces three models of membership utilized in U.S. law (the territorial model, the status-based model, and the post-territorial model) and assesses each model’s ability to effectively measure the substantive criteria. She concludes that the use of “inaccurate proxies are unavoidable” when assigning birthright citizenship, but that the territorial model offers the most accurate proxy. (P. 857.)

After the Revolution, courts had to determine “[w]hat made a former British subject a citizen” as well as when British subjects became U.S. citizens. Rather than using rigid rules to make these determinations, the courts utilized a totality-of-the-circumstances approach in which loyalty to the United States and community ties were important factors. Allegiance gave rise to a state obligation to protect the loyal individual. Integration into the community was evaluated based on where individuals were raised and where they decided to live.

Núñez argues that the congressional debates regarding the Fourteenth Amendment reinforced the importance of these substantive factors in making birthright citizenship decisions. During the debates Congress discussed whether the children of Gypsies, Chinese immigrants, and Native Americans would obtain territorial birthright citizenship. While the arguments against extending birthright citizenship to these groups had racist overtones, Núñez adeptly identifies the specific conduct that was used as the basis for excluding these groups. Those against birthright citizenship cited concerns about loyalty, willingness to submit to U.S. sovereignty, and limited ties to American communities. The Fourteenth Amendment did not exclude the children of Gypsies and Chinese immigrants. Núñez attributes this fact to Congress concluding that these children would be loyal, that they and their families played an important economic role in American communities, and that exclusion would create a subclass within American society whereas inclusion “would create a just, egalitarian society.” (P. 870.) A different outcome, however, was reached for Native Americans—primarily because Native Americans were considered members of separate and distinct nations and were viewed as not having any allegiance or obligations to the United States.

Based on her conclusion that mutuality of obligation, community ties, and community preservation are the substantive criteria upon which membership decisions should be made, Núñez evaluates the ability of the territorial and status models to accurately identify desirable members. The territorial model uses the border to assign membership. Those within the border are members and those outside of the border are not. This is contrasted with the status-based model in which rights are assigned based on an individual’s status. Finally, the post-territorial model seeks to measure the desired substantive criteria directly rather than using proxies.

Núñez concludes that implementing the post-territorial model and conducting an individualized assessment of every person born in the United States “would be impractical.” (P. 875.) Thus, proxies are necessary. Núñez argues that the territorial model better assesses mutuality of obligation, community ties, and community preservation than the status-based model. Because legal obligations in the United States are based on presence rather than status, Núñez easily concludes that mutuality of obligation is better measured by territorial presence than by parental status. Birth in the United States is also more predictive of the development of community ties because it generally gives rise to long-term residence and connection to community institutions. Finally, Núñez contends that denying the children of unauthorized migrants birthright citizenship would “distribute membership rights on different terms to individuals who are effectively identical in all substantive respects,” which is unjust. (P. 880.)

Núñez’s analysis of the post-Revolutionary citizenship cases convincingly offers a set of substantive criteria for membership in the American polity. Her discussion of the initial refusal of birthright citizenship to Native Americans suggests that cultural assimilation has also been a substantive requirement for birthright citizenship. Native Americans were denied constitutional birthright citizenship not only because they were deemed members of independent sovereign nations but also because they were viewed as “uncivilized” and thus lacking community ties.

Núñez’s article provides a very useful starting point for thinking about the substantive criteria for birthright citizenship in the United States. Her analysis also offers important insights about American identity and the ways in which certain community ties may be privileged over others when deciding who is sufficiently connected to be deemed an American at birth.

Cite as: Angela Banks, The Substantive Criteria Underlying Birthright Citizenship, JOTWELL (June 6, 2014) (reviewing D. Carolina Núñez, Beyond Blood and Borders: Finding Meaning in Birthright Citizenship, 78 Brooklyn L. Rev. 835 (2013)), http://lex.jotwell.com/the-substantive-criteria-underlying-birthright-citizenship/.