Cultural Narratives and Legal Rights

A perennial question for scholars interested in social justice is how politically and socially marginalized groups can become full members of society. Jennifer Lee provides an important contribution to the literature addressing this issue. Building on insights from the social movement literature on strategic framing, Lee contends that strategic mainstreaming offers an opportunity for marginalized groups to obtain immediate benefits. Lee focuses on unauthorized immigrant workers and views strategic mainstreaming as a tool to successfully litigate workplace violations, petition for immigration status, and obtain desired public policy reforms.

Much has been written within the social science social movement literature about the role of frames and framing strategy in bringing about legal reform. Frames serve as tools for organizing and understanding information. Because of the relationship between cultural norms and law, framing offers a useful strategy for legal reform advocates. As Lee notes, “law is neither objective nor fixed but rather dependent on the relationship law shares with the dominant cultural and social patterns of society.” (P. 1068.) Consequently social movements seeking legal reform “are more powerful when the messages of the movement align with the values of mainstream culture.” (P. 1069.) Lee focuses on one type of framing strategy—mainstreaming. This is the process by which “interpretive frames correlated to dominant cultural values” are used “to create connections to mainstream society.” (P. 1064.) Through mainstreaming advocates seek to demonstrate common ground between those seeking reform and dominant cultural values.

Two interpretive frames have dominated the immigrant worker rights movement: the universality of being a worker frame and “immigrant workers as victims of criminal employers who fail to obey the rule of law” frame. (P. 1070.) Within the first frame immigrant workers are presented as “individuals who, like anyone else in the workforce, are seeking the same things out of life through the dignity of their work—the ability to survive independently and provide a better future for their children.” (P. 1069.) Immigrant workers are first and foremost workers. Average Americans are able to identify with immigrant workers through their common experience as workers. This frame also builds on the view of the United States as a place where anyone can accomplish the American Dream through hard work. The second predominant frame has been immigrant workers as victims of criminal employers. Within this frame immigrant workers are hard workers who have done what is expected of them and employers are criminals who steal wages and misclassify workers in order to reduce pay and benefits. This frame makes immigrant worker rights issues easy to address by creating a clear good actor (immigrant worker) and a clear bad actor (employer). This frame also resonates with an American tendency to criminalize social challenges. Lee demonstrates the effectiveness of these frames in the work of public interest lawyers and immigrant workers that address workplace violations in litigation, petitioning for immigration status, seeking public policy reform, and obtaining legal redress through direct action.

Lee does not simply advocate the use of mainstreaming by immigrant worker advocates, she argues for the use of strategic mainstreaming. Strategic mainstreaming builds on insights from the public interest lawyering literature. This literature has documented the various ways in which public interest lawyers contribute to the disempowerment of their clients by ignoring their voices. Lee seeks to avoid such disempowerment by requiring the participation of immigrant workers in the development and deployment of the cultural narratives used to draw connections between immigrant workers and mainstream cultural values.

Lee contends that strategic mainstreaming is an effective option for promoting not only the legal rights of immigrant workers, but also their broader inclusion in American society. Yet she acknowledges an important limitation of this approach to legal reform. Strategic mainstreaming does not attempt to transform dominant cultural values. Rather this strategy seeks to move immigrant workers from the margins of society by demonstrating their similarity to mainstream America. Yet relying on dominant cultural values may further entrench the justifications for the limited legal rights and protections for immigrant workers and other marginalized groups. For example, the immigrant workers as victims frame reinforces the idea that traditional civil law violations should be treated as criminal violations. While this frame may be useful for responding to wage theft and misclassifications, it also makes unauthorized immigrant workers vulnerable to claims that they are criminals due to their civil immigration violations. Furthermore it supports the idea that criminal law strategies should be used to address unauthorized migration. Lee acknowledges this as a challenge to using strategic mainstreaming. She notes that in the immigrant worker context use of this strategy can mean “disfavoring immigrant workers who do not fit the role of the ‘good immigrant’—the iconic hard worker or victim.” (P. 1066.) Despite this challenge, Lee concludes that strategic mainstreaming is worth pursuing because it results in “immediate benefits for real people, whether it is the receipt of monetary compensation, immigration status, or workplace reform.” (P. 1101.) She also views strategic mainstreaming as having the benefit of leading to personal empowerment when workers “own their own narratives.” It can also offer a way to develop alliances and coalitions based on broader identities such as the new working poor. (Pp. 1102-03.)

Lee offers a pragmatic approach for responding to the immediate needs of unauthorized immigrant workers. Her article thoughtfully utilizes the insights from the social science literature on social movements to change the perception of immigrant workers within the American imagination. This strategy can be successful in obtaining monetary compensation for wage theft, lawful immigration status, and specific workplace reforms. However, these achievements may come at the cost of reinforcing dominant conceptions of worthy immigrants.

Cite as: Angela Banks, Cultural Narratives and Legal Rights, JOTWELL (September 9, 2015) (reviewing Jennifer J. Lee, Outsiders Looking In: Advancing the Immigrant Worker Movement Through Strategic Mainstreaming, 2014 Utah L. Rev. 1063 (2015)),

Speaking Truth About Power

Howard A. Latin, Climate Change Regulation and EPA Disincentives, 45 Envtl. L. 19 (2015).

In a four-decade scholarly career, my former colleague Howard Latin has never shied away from speaking truth to power. His writings have taken on all three branches of government, wealthy private interests like the auto industry, and entrenched academic orthodoxies (notably economic theories of environmental and tort law). More recently, he published an important book arguing that even the most ambitious conventional proposals to respond to anthropogenic climate disruption will not do enough, quickly enough, to mitigate the long-term harm that will result from high concentrations of greenhouse gases in earth’s atmosphere.

In Climate Change Regulation and EPA Disincentives, Latin casts a disappointed eye on the Environmental Protection Agency’s efforts to address greenhouse gas emissions using its authority under the Clean Air Act in the aftermath of Massachusetts v. EPA. Given the ineffable magnitude of the danger, the Supreme Court’s acquiescence, and a comprehending President, Latin asks: Why so timid, EPA? Drawing on many themes from his earlier work, he answers by speaking truth about power: the fossil-fuel-burning generation of electric power, the pressures that exert psychological and bureaucratic power within agencies, and the limited exercise of regulatory power seemingly conferred by statute.

Latin focuses on EPA’s failure to require swift, significant reductions in greenhouse gas emissions from existing and new fossil-fuel-fired power plants and their associated fuel cycles. With respect to existing plants, Latin argues that EPA’s proposed Clean Power Plan requires emissions reductions that are too little too far in the future. With respect to new plants, Latin ridicules as meaningless EPA’s proposed New Source Performance Standard, quoting from the agency’s own analysis of the proposed rule’s effects: it “will result in negligible CO2 emission changes, energy impacts, benefits or costs for new units constructed by 2020” because the rule would require nothing beyond what EPA believes the market would have produced absent regulation.

To explain EPA’s cautious approach, Latin invokes the eight “laws” of administrative behavior that he articulated twenty-five years ago in criticizing the 1990 Clean Air Act amendments. Thus the patterns of agency behavior that Latin observes at work in EPA’s attempts at CO2 emissions regulation are neither new in practice nor newly understood in theory. Latin shows persuasively that these patterns are active by marshaling facts that will also mostly be familiar to those who follow climate policy issues.

It is no surprise, for example, to learn that politics usually trumps technocracy, and therefore EPA responds to political opposition to meaningful CO2 emissions reductions–which comes from officeholders of both political parties for reasons ranging from anti-regulatory ideology to parochial concern about short-term local employment effects to the need for (or fear of) massive campaign spending by those whose wealth derives from fossil fuels. Nor, unfortunately, is it news that Congressionally-imposed resource limitations, continuous criticism from all sides, and manipulation by regulated industries can debilitate the will of even committed career agency staff and well-intentioned agency leadership. Or that EPA is prone to avoiding regulatory steps that would cause severe social and economic dislocation, even if (as Latin contends is true for greenhouse gas emission reductions) regulation would have net social benefits. History amply demonstrates the truth of this group of Latin’s laws.

Two more of Latin’s laws describe other factors constraining EPA’s behavior that, although they have been observed before, are discussed less often in climate policy debates. Latin explains how EPA’s science-driven agenda can discourage necessary, but aggressive and risky, policy-making. Disciplinary norms push most scientists toward basic research and away from policy prescriptions derived from incomplete data, Latin observes, yet at the same time bureaucratic norms channel agency research toward reinforcing already well-supported conclusions rather than assessing phenomena that are only vaguely understood. As a result, Latin argues, reliability norms inhibit strong policy prescriptions while weaker, easier policies are not closely examined. For example, EPA has yet to analyze the effects on greenhouse gas emissions, over the entire fuel cycle, of the market-driven shift from coal-burning to natural-gas-burning electricity generation.

Latin applies his eighth law–that administrators of multiple-purpose statutes tend to emphasize only one or two statutory goals–less to EPA than to the myriad other federal agencies whose actions contribute to the overall effect of government policy on climate disruption. Despite Presidential directives to develop cooperative climate change policies and practices, Latin notes, these agencies continue to pursue specialized agendas that make attacking climate change harder rather than easier. He cites, among other examples, support within the State Department for the Keystone XL pipeline.

The contribution of Climate Change Regulation and EPA Disincentives is not so much in telling us things we did not know but in showing us how they combine to stymie bold regulatory action. The commons problem that has so frustrated global action on greenhouse gas emissions, for instance, underlies much of the political opposition Latin describes but also much of the reluctance to impose social and economic costs in the name of emission reduction: the benefits of individual action at the regional or even national level are perceived not to justify its costs absent effective collective action on a global scale. Internal scientific and bureaucratic norms insidiously enhance the effectiveness of external criticism.

Climate Change Regulation and EPA Disincentives also makes a more subtle contribution to the environmental law professoriate. We all know that the 1970, 1977 and even 1990 Clean Air Act Amendments were not really designed to address emissions of pollutants like greenhouse gases, even though the statute’s language is broad enough to encompass those pollutants. We teach our students–who, after all, will be tasked with making mitigation and adaptation policy choices more difficult than even those we currently face–that what is really needed is legislation designed to attack the climate disruption problem head-on and effectively. Yet we despair of any prospect that such legislation will be enacted in the foreseeable future: certainly not until 2017 or later, and then only if the stars align. By showing us how and why EPA has failed to embrace the power it already has, Latin inspires us to envision a world in which effective national action does not depend on endlessly, fruitlessly waiting for Congress. By explaining agency timidity, he implicitly reminds us–and EPA–of the possibility of daring.

Ordinarily I would have been reluctant to write a Jot praising the work of a colleague at my own law school. I feel justified, however, because Howard Latin has just retired from our faculty. In what may be his last law review article, he again provides signal service to environmental law scholars and environmental policy makers. So I happily thank him for the mentorship he provided to me and for the scholarship he provided to the world.

Cite as: Steve Gold, Speaking Truth About Power, JOTWELL (July 27, 2015) (reviewing Howard A. Latin, Climate Change Regulation and EPA Disincentives, 45 Envtl. L. 19 (2015)),

Questioning Compliance with Immigration Law

Lives and loves and wars have been lost because of assumptions about what other people thought or did. Our immigration laws and policies often rely on popular misconceptions about why people come to the United States without authorization and what will deter them or compel them to leave. Popular ideas about unlawfully present noncitizens have shifted over time toward a view that unauthorized border crossers are criminal aliens who constitute the kind of crisis that require the combined forces of the immigration and criminal enforcement systems to regulate.

Yet without knowing what unlawfully present noncitizens actually think or believe, it’s hard to say whether those laws and policies have it right. In Less Enforcement, More Compliance, Emily Ryo has confronted this question of what unlawfully-present people think about their own presence in the U.S. by doing what seems both obvious and fraught with obstacles: she asked them.

More precisely, she asked sixty-four current and prospective unauthorized immigrants from Latin America at migrant and day-labor centers and sites about why they decided to come, what that was like, and why they continue to work and reside in the United States in violation of U.S. immigration laws. The interviews explored their knowledge of U.S. immigration law, their border crossing experiences, and their attitudes toward the U.S. government, Americans, and U.S. immigration law.

I like this article (lots) because it exemplifies a trend that other intrepid legal scholars began of going into the field to explore interesting questions about crimmigration, like whether prosecutors really care about the immigration consequences of a conviction (they do), whether political partisanship is more significant than changing demographics in driving states and cities to pass anti-immigrant laws (it is), or whether race correlates with how immigration enforcement is rolled out (it sure looks that way).

Here is the question that intrigued Ryo: how does the unlawfulness of unauthorized border-crossing impact noncitizens’ view of themselves as law-abiding? She discovered that the people interviewed viewed themselves as “moral, law-abiding individuals who respect law and order” and not as “delinquents” and “criminals.” Moreover, many spoke of their respect for the sanctity of national borders and their belief that it is appropriate for sovereign nations to control their borders, invoking the analogy of the homeowner’s prerogative to decide to host a guest. How, then, do immigrants reconcile these views with their current or planned noncompliance with U.S. immigration law?

Ryo analyzes the “neutralization techniques”—culturally acceptable legitimations—that permit noncitizens to disobey U.S. immigration law and see themselves as law-abiding. She identifies a number of them; this post will highlight just a few.

First, the noncitizens raised narratives of personal blamelessness for their situation, combined with a higher loyalty they felt they owed their families, especially their children. While that higher responsibility “called for drastic action—even illegal action,” disobeying immigration law was of a different moral caliber than committing unrelated crimes or otherwise causing injury to others. Even dire poverty or familial need did not justify harm-causing criminal or civil disobedience. As one interviewee put it, “Immigration law is different from other laws. Immigrants who come to work should not be compared to those who kill or those who steal.”

This “neutralization” comes with a cost. When asked about whether unauthorized immigrants caused potential harm to native workers, racial stereotypes emerged, such as the trope of the black welfare recipient, that reinforced interviewees’ beliefs that they were not displacing native workers. Ryo explained that the “internalization of racial stereotypes and imagined racial hierarchy by newcomers who have yet to be assimilated into U.S. society is a testament to the continuing salience of race in American life and to an understanding of the American racial hierarchy that is international in its reach.”

Class and race played a much more nuanced role in the noncitizens’ perceptions of the legitimacy of the U.S. immigration system, in which only the rich obtain U.S. visas, and skin color plays a crucial role in evading enforcement. A broadly shared view was that immigrants from Latin America were at a significant disadvantage within the system as a whole, and “mixing” with Americans or passing as white was critical to the success of the project of unlawful entry and remaining. Seeing the system as fair was further endangered by the “prevailing sense that the U.S. immigration system granted greater opportunities for certain national-origin groups based on capricious and ever-changing international politics” rather than a clear set of rules.

Ryo concludes that these noncitizens’ belief that the U.S. immigration law system is immoral lends support to their view that violations of the system may be “the only viable moral choice under the circumstances.” Her prescriptions—that the U.S. craft a development strategy that promotes job opportunities, and set up an expanded temporary worker program that would permit circular migration of workers—lines up, perhaps for the first time, with empirical data about why those programs might increase compliance with immigration law.

Thanks to Ryo we now know that “legal” and “honorable” work and commitments to economic stability for family are moral values that influence decisions to engage in violations of immigration law. Establishing a viable, legal way to fulfill these moral values may encourage timely circular migration among those present in the U.S. and “motivate prospective immigrants to wait to enter legally rather than attempt to cross illegally.”

We’ve all had the experience of thinking we knew what someone else was thinking. Sometimes it pays just to ask.

Cite as: Juliet Stumpf, Questioning Compliance with Immigration Law, JOTWELL (June 26, 2015) (reviewing Emily Ryo, Less Enforcement, More Compliance: Rethinking Unauthorized Migration, 62 UCLA L. Rev. 622 (2015)),

Not So Schizophrenic: The Founders’ Understanding of Indian Affairs and the Constitution

Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012 (2015).

Federal Indian law fits awkwardly in American constitutional doctrine, so much so that Justice Clarence Thomas has declared it “to say the least, schizophrenic.” Tribal nations are sovereign to some degree—they are not bound by the U.S. Constitution, possess substantial sovereign immunity, have police departments, courts, and broad regulatory powers, and hundreds of U.S.—tribal treaties still influence federal law. Yet the federal government has tremendous power over tribes and their members, states have significant jurisdiction in their territories, and tribal jurisdiction over non-tribal citizens is limited. Only a few words in the Constitution directly reference Indians or tribes at all. Obsolete phrases in the Apportionment Clause and Fourteenth Amendment exclude “Indians not taxed” from the population for legislative apportionment. More importantly, the Indian Commerce Clause grants Congress the power to “regulate commerce . . . with the Indian tribes.” Modern Supreme Court decisions locate Congress’ broad authority in Indian affairs in the Clause; more recently, Justice Thomas and some scholars have argued that this power is narrowly limited to trade; while other scholars argue that the Clause provides a constitutional basis for both state exclusion from Indian affairs and tribal sovereignty.

In a groundbreaking new article, Beyond the Indian Commerce Clause, Gregory Ablavsky rejects all sides of this debate. Ablavsky convincingly argues that although a narrow construction of commerce is not consistent with original understanding, the broader implications of the Indian Commerce Clause are deliberately ambiguous. Following an emerging approach to constitutional history, Ablavsky looks beyond the words of the Clause and its limited history to a greater range of constitutional actors and a longer temporal context. Canvassing statements and correspondence by the Washington administration, state officials, and others, Ablavsky argues that the founders located the Indian affairs power in the general constitutional status of the United States, and particularly the interplay of the nation’s military, territorial, commercial, and diplomatic affairs powers. (For the ways that concerns about Indian affairs affected the formulation of these constitutional powers, see Ablavsky’s The Savage Constitution, 63 Duke L.J. 999 (2014).)

The founders’ more holistic understanding of the constitutional source of the Indian affairs power helps explain some perplexing aspects of modern federal Indian law, and provides reasons to challenge some others. First, the historical evidence reveals a general agreement that federal Indian affairs power was exclusive of state authority, similar to the foreign relations power.   This helps normalize some cases regarding state jurisdiction in Indian country, which appear to draw from ordinary preemption analysis, but whose results bear more resemblance to the field preemption applied in matters affecting foreign relations.

Second, the evidence provides a constitutional basis for the status of Indian tribes as at once sovereign and subordinate, or, as Justice Marshall declared in Cherokee Nation v. Georgia, “domestic dependent nations.” The federal government recognized tribal nations as sovereigns, drawing on its diplomatic relations and military power to deal with them, and recognizing their independence from ordinary domestic legislation. At the same time, the government asserted that its own status as a sovereign with control over territory limited tribal sovereignty, making tribes less than foreign nations. As a result, tribes could not enter into diplomatic relations with other nations, and the U.S. had ultimate authority over transfers of land by the Indian tribes. Thus both tribal inherent sovereignty and congressional plenary power—the inspiration for Justice Thomas’ diagnosis of schizophrenia—originate in the law of nations and its incorporation in constitutional practice. The original understanding of tribal sovereignty, moreover, suggests that modern Supreme Court decisions err in claiming that that the dependent status of Indian tribes is inconsistent with their exercise of jurisdiction over non-Indians in their territory.

Others have made similar arguments regarding the constitutional basis for federal Indian law (and if there is one flaw in the article it its failure to sufficiently acknowledge the extent to which this is true) but Ablavsky’s historical grounding of these arguments is unprecedented. This may be the most important article on the Constitution and federal Indian law since Philip Frickey’s Marshalling Past and Present: Colonialism, Constitutionalism, And Interpretation in Federal Indian Law, 107 Harv. L. Rev. 381 (1993). It is relevant to many of the debates and doctrines in federal Indian law, and may well help generate new ones. It is worth reading for all interested in federal Indian law or constitutional history.

Cite as: Bethany Berger, Not So Schizophrenic: The Founders’ Understanding of Indian Affairs and the Constitution, JOTWELL (May 26, 2015) (reviewing Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012 (2015)),

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)),

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),

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),

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),

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)),

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)),