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). []
 
 

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). []
 
 

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). []
 
 

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.

 
 

Civilizing Civil Detention

César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. (forthcoming 2014), available at SSRN.

When the news came out that nearly half a million noncitizens now find themselves in immigration detention, it struck me that this may be the most invisible civil-rights issue of our era. Immigration Detention as Punishment, by César Cuauhtémoc García Hernández, offers a compass through this tricky and contested terrain.

Formally, immigration detention is a civil status, an administrative adjunct to deportation. Detained noncitizens have lesser procedural protections against unnecessary or excessive detention than the criminal justice system provides to pre-trial detainees. Yet, immigration detention functions to deprive noncitizens of social and physical liberty in the same way as criminal incarceration. The government detains noncitizens in the same jails and prisons as criminal defendants and the convicted.  The lives of noncitizens in detention are regulated in the same way as the lives of those whose confinement results from the criminal justice system.

That’s okay, said the Supreme Court in Demore v. Kim, because detention is an avenue to deportation, and as long as immigration detention is not used to punish, it is classified as civil and Due Process sets the procedural standard. The constitutional protections give way a bit, giving Congress some leeway to withhold individualized bond hearings. That raises two questions: Is immigration detention punishment? And if it is, can we inoculate immigration detention from illegitimacy with more robust criminal-type procedural protections?

The title of García’s elegantly written article might clue you in to his answer to the first question. The article takes an unexpected turn, however, when addressing the second. If immigration detention is civil, it argues, criminal procedural protections are not the solution.

I loved this piece because I love legal history, especially when it reveals new insights into the more peculiar structures of modern law, and because I love scholarship that delves deeply into one corner of law to ask questions about the whole room. Until I read this piece, I assumed that the profligation of immigration detention stemmed from the major expansion of deportation grounds in the 1990s. That’s consistent with the idea that detention is merely an airlock to deportation.

Immigration Detention as Punishment led me farther back in time to the beginning of the “war on drugs.” 1986 was the birth year of modern “immcarceration” (hat tip to Anil Kalhan for that evocative term), when Congress ordered the Defense Department to make detention facilities available to the Attorney General for “illegal alien felons and major narcotics traffickers,” and authorized police to request immigration “detainers” from federal immigration officials. Most importantly, Congress channeled funding to state and local governments, the Bureau of Prisons, and the immigration agency for detention connected with “illegal alien” involvement in drug trafficking and crimes of violence. Later, Congress specified that jails and prisons and other comparable facilities were appropriate, even desirable, for detaining noncitizens.

Locating the birth of modern immigration detention within the war on drugs allows García to connect the rise of detention with the contemporaneously swelling penal prison population. He shows how the mandatory minimum sentences and sentencing guidelines that came into vogue in criminal law in the ‘80s and ‘90s, limiting judicial discretion and expanding prosecutorial power, appeared in refracted form in immigration provisions that introduced mandatory detention provisions and constrained judicial power to avert deportation. Seen through this historical lens, immigration detention “became an integral part of the punitive consequences” of the war on drugs. García’s meticulous unfolding of the legislative history of immigration detention constructs a persuasive argument that Congress intended immigration detention to perform a punitive function.

Entangling immigration detention with criminal punishment would seem to support an argument for importing criminal procedural protections into immigration detention. García acknowledges that raising procedural barriers to immigration detention would make it slower and costlier for the government to impose detention. But he notes that the criminal justice system, with its panoply of constitutional procedural protections, neither won the war on drugs nor prevented the mass incarceration of drug-crime defendants.

It is this examination of the contradictions of immigration detention that leads García to call for “a wholesale reexamination of the efficacy of confinement as a tool of social control.” Here García makes an Escher-like move, shifting the readers’ perspective from criminal analogues to the formally civil status of detention and asking us to take it seriously. The article advocates creating the “truly civil detention system” that the Immigration and Customs Enforcement agency states that it aspires to.

Imagining a civil detention system may invoke for some the picture of unauthorized aliens sunbathing at leisure at taxpayer expense. Taking civil detention seriously, though, requires a rigorous evaluation of how to calibrate deprivations of liberty and individual circumstances with immigration policy goals. So as not to be a spoiler, I will leave you to the pleasure of that garden pathway with García as your guide.

 
 

Vanishing into the Ether: Link Rot and Disappearing Precedent

Every first-year law student is taught the importance of citing to the materials relied upon to make a legal argument. Opposing counsel and the judge should be able to retrieve the materials cited and determine whether the materials support the argument put forth. At first blush, citation to materials on the internet would seem to make retrieval easier. Lawyers no longer have to go to a library or dig through a database to find the cited materials. However, a fairly high number of these citations are being lost to link rot, that annoying instance when you click on a link and what you are looking for is no longer available.

Raizel Liebler and June Liebert conducted a study of internet links contained in Supreme Court of the United States (hereinafter “SCOTUS”) opinions from 1996–2010 and found that, shockingly, 29% of links in the opinions either led to nothing or did not lead to the information discussed in the opinion. With stare decisis as a foundational principle of American law, it is disturbing to consider how the underlying basis of court opinions may be disappearing at a rate much higher than anticipated. The consequences for lawyers and researchers seeking to understand the legal analysis contained in a court opinion are profound.

The authors begin, “Citations are the cornerstone upon which judicial opinions and law review articles stand.” (P. 275.) From there, Liebler and Liebert go on to discuss the increasing use of citations to links in SCOTUS opinions. The first citation to an internet link appeared in Justice Souter’s 1996 concurring opinion in Denver Area Educ. Telecomm. Consortium, Inc. v. FCC (518 U.S. 727, 777 n.4). The next use was not until a 1998 dissent by Justice Ginsburg in Muscarello v. United States (524 U.S. 125, 143 n.6). Since that time, citations to links has increased tremendously. Liebler and Liebert found 430 website citations in 144 SCOTUS opinions from the 1995–96 term to the 2009–10 term. Of these 430 URLs, 29% of them had suffered link rot. As the authors state, “Considering the preeminence of the United States Supreme Court, a link rot rate of almost one-third . . . is quite shocking.” (P. 298.)

The problem of link rot is not simply that a link may no longer work but can be much more complicated. For instance, a citation to an SSRN paper may later be changed as the author advances in the writing and publication process. The author of a blog post relied upon in a court opinion may later change her opinion and edit the blog post to reflect her current thinking. A lawyer or researcher examining the basis for a justice’s analysis may find material that is entirely different from what the justice cited. Statistics found on the internet, even on a government website, may be removed and replaced with newer statistics. In fact, the authors found no difference in the probability of link rot between government and non-government websites. Similarly, the probability of link rot did not depend on the format of the link (i.e., pdf, htm, html). The authors conclude that it is not possible to predict which links will rot.

There is, apparently, hope that this unfortunate state of affairs may find a solution. The authors highlight 2009 guidelines released by the Judicial Conference of the United States titled Citing To, Capturing, and Maintaining Internet Resources in Judicial Opinions/Using Hyperlinks in Judicial Opinions. The Conference advised judges to consider archiving a copy of internet materials relied upon in an opinion. The SCOTUS Clerk of Court does retain a print copy of cited materials in its case file but those materials are only available by visiting the Clerk’s office or contacting the National Archives and Records Administration (NARA) after the files are archived. The Ninth Circuit Library is also archiving websites cited by creating PDF files. As the authors insightfully point out, however, this works well for text files but does not capture audio, video, or software files.

Liebler and Liebert’s article offers a shocking illumination of the problem facing citation to internet links in a system of law based on precedent. With no solid plan in place to accurately preserve and make accessible cited material we risk losing the ability to see and understand the authority relied on by the Court.

 
 

Small Things Matter in Environmental Law

• Dave Owen, Critical Habitat and the Challenge of Regulating Small Harms, 64 Fla. L. Rev. 141 (2012).
• David E. Adelman, Environmental Federalism: When Numbers Matter More than Size, U. Texas Working Paper Series (2013), available at SSRN.

Most people, when they think of environmental pollution, think of large, industrial factories pumping out noxious fumes into the air, putrid liquids into the water, and barrels of toxic wastes into the soil. For instance, almost every newspaper article, blog post, or television story about climate change has as an image of the smokestack of a major power plant or factory.

Most people’s perceptions are wrong. It has long been the case that much of the degradation of our natural environment is the result of the accumulation of thousands, millions, even billions of individual actions by people across the United States and around the world. Climate change, for example, is the result of the decision of each of us to drive a car powered by fossil fuels, eat meat, fly in planes, heat our house with fossil fuels, and other similar, seemingly trivial actions. Moreover, these misconceptions are not limited to the general public or general journalists—environmental law scholars and policy makers have fallen into this trap as well. Even when scholars and policy makers have recognized the importance of small harms for environmental law and policy, there is often little information about how important they are, or what, exactly the implications are for our current legal and regulatory systems.

Two recent articles—Dave Owen’s piece, Critical Habitat and the Challenge of Regulating Small Harms, and David E. Adelman’s article, Environmental Federalism: When Numbers Matter More than Size—are welcome efforts to address the gaps in our understanding of how small harms matter to environmental law and why they matter. Moreover, they both are outstanding examples of a recent trend in environmental law to jump on the empirical legal studies bandwagon—both collect and use substantial amounts of data in their analyses.

Owen’s piece looks at a controversial, but underappreciated, provision of the Endangered Species Act (ESA): critical habitat. The agencies in charge of implementing the ESA (the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)) are supposed to designate critical habitat for all species listed for protection under the Act. Historically, those agencies have resisted critical habitat designation, arguing that it adds minimal additional regulatory protection for listed species, but with substantial administrative and political costs. Owen first establishes that, properly understood, critical habitat should provide substantial additional regulatory protection for listed species on top of the other ESA provisions—and that those protections are most important for the accumulation of small harms to the habitat for listed species. Small harms to habitat include, for example, the paving over of lands within a watershed for residential and commercial development; each individual bit of development worsens the water quality of the streams within the watershed by a small, incremental amount. These small harms are not individually enough to trigger other provisions of the Act, but cumulatively might matter a lot for listed species. Another key example of this kind of harm is climate change.

Owen then undertakes some heroic empirical research. He compiled over 4,000 individual regulatory documents from FWS and NMFS to explore whether, in practice, critical habitat designation affects regulatory decision-making and whether the agencies are doing anything else about the accumulation of small harms to habitat for listed species. He finds that critical habitat designation appears to be making little difference for decision-making—even where the evidence is clear that in a particular situation a proposed development project will have small, but meaningful, impacts on the habitat of a listed species. He also—more surprisingly—finds evidence that the agencies are trying to use a range of other creative tools to address the problem of small habitat harms. Finally, he notes that small habitat harms are incredibly important, with the vast majority of the regulatory decisions involving individually small, potentially cumulatively important, harms to habitat for listed species.

Complementing Owen’s narrow but deep focus on a particular statutory provision, Adelman’s project is an effort to take a large-scale view at the problem of air pollution. Adelman marshals a range of data provided by the Environmental Protection Agency (EPA) and other sources to demonstrate that large, industrial sources contribute only a small fraction of the overall problem of air pollution in the United States, particularly in the large urban areas where air pollution problems are most severe. Adelman then shows how the current legal structure of the federal Clean Air Act purports to give states substantial leeway to reduce air pollution in a “cooperative federalism” framework, but in fact gives states little power overall. Adelman notes that much of the pollution in urban areas comes either from sources primarily under direct federal regulation (motor vehicles and electric power plants) or from the accumulation of many small sources that are extremely difficult to manage or regulate (e.g., wood-burning stoves, backyard barbeque grills, dry cleaners, and the choices by millions of individuals about whether and how to undertake their daily commutes).

On one level, Owen and Adelman reach very different conclusions from their surveys. Owen believes that the current ESA implementation process, while it has substantial problems and needs some reforms, is the correct general framework. Adelman, by contrast, calls for substantial revisions in the Clean Air Act.

But, on another level, their overall messages are very consistent. Both argue that to address the increasing importance of small, individual actions for environmental law, what is needed is a wide mix of regulatory tools (e.g., command-and-control or market-based mechanisms)—from all different scales of government (local, state, federal). For instance, Owen notes that the case-by-case implementation of the ESA by various FWS field offices allows for careful tailoring of regulatory choices to on-the-ground political and economic reality. Adelman argues that rigid divisions between federal, state, and local jurisdiction in environmental law will interfere with the messy process of changing the patterns of individual behavior that are so fundamental to environmental problems today.

I’m not sure I agree with all of the normative recommendations in both of these pieces. But in the end, the most important contribution of both is highlighting how important the accumulation of small harms is for the future of environmental law, and providing some insights about how we might go about addressing this challenge.

 
 

Undocumented Status and Slavery: Examining the Parallels

Chantal Thomas, Immigration Controls and “Modern-Day Slavery” (Cornell Law Sch. Legal Studies Research Paper Series, Paper No. 13-86, 2013), available at SSRN.

In the heat of the debate over comprehensive immigration reform last spring, Marco Rubio’s press secretary likened undocumented migrants to slaves, noting that Americans have not “had a cohort of people living permanently in US without full rights of citizenship since slavery.” The parallel between slavery and undocumented status is drawn often, but rarely with precision or analytical rigor.

Chantal Thomas’s new paper, Immigration Controls and “Modern-Day Slavery”, takes on the challenge of bringing hard-nosed logic to bear on the concept of “modern-day slavery” and its interface with immigration law. In my view one of the most interesting authors out there on questions of international law, immigration, and labor, Thomas’s analysis of the slavery debate does not disappoint.

She begins by noting the potential breadth of the term “modern-day slavery,” and presenting the debates around whether forced labor should be included within the definition. Thomas focuses on the coercion aspect of slavery, arguing that today the lack of lawful immigration status is “the single most formal and legally permitted basis” for this type of coercion. (P. 11). This leads to the article’s central contribution: Pointing out that advocates and scholars who seek to dismantle modern-day slavery are engaged with the wrong problem, as their proposed solutions focus on criminal law or human rights protections but fail to discuss the impact of immigration laws. Because United Nations human rights bodies and even anti-slavery advocates never seriously question state sovereignty and border control prerogatives, they are ineffective in preventing severe exploitation of undocumented migrants.

Thomas engages with two literatures in the course of her article. She begins with the contemporary debate around the legal definition of slavery, labeling the different camps with the monikers of “maximalist” and “minimalist.” (Pp. 15-22). These groups sit at either end of a spectrum in defining slavery, from narrow de jure ownership to a broad sociological approach that includes conditions of control. Thomas gets deep into the weeds of the debate around the 1926 Slavery Convention and its definition of slavery, tangling with questions of factual and legal equivalence. For those familiar with the literature, this is the least interesting portion of the paper, as Thomas engages in critique of the analytically impossible task of defining slavery in a world in which ownership of humans is legally prohibited. Though she does an admirable job of parsing the debate and highlighting its glaring deficiencies, I think Thomas is at her best when she spins out her own far more original and thoughtful theories. In my view, it would have sufficed to make the point that current-day abolitionists are seeking to “eradicate a practice that has no explicit legal component” and therefore abolitionists are barking up the wrong tree. (P. 15). Given the questions raised in the rest of the paper, this section might have focused instead on whether the academic focus on slavery and definitions of possession and control serves to obscure the role of the state in enabling coercion.

Thomas gets to that point next, in a lively and engaging section that draws on legal realist scholars Wesley Hohfeld and Robert Hale. Hohfeld and Hale wrote about labor law in the early 20th century, highlighting the “internal analytical incoherence and external negative impact” of conservative legal interpretations of labor law. (P. 12). Following Hohfeld, Thomas unearths the hidden role of private law in enforcing the state’s coercive power. In her words, “Hohfeld encourages us to identify the precise contours of legal rules that shape entitlements as enforced by the state. If we try to unpack what legal rules contribute to modern-day slavery, we are confronted with the fact that border controls do a lot of this work.” (P. 36). From Hale, Thomas extracts an explanation of the ways in which property laws, by requiring us to enter into the market, construct the imbalanced bargaining power faced by undocumented migrants. Hohfeld and Hale’s theories are powerful, and Thomas deftly adapts them to the contemporary situation of the undocumented.

Thomas struggles with the analogy between undocumented status and slavery, appearing (understandably) conflicted about whether or not it should be drawn. The term “slavery” brings with it formidable rhetorical power, but, as she notes, there are important differences between undocumented migrants and slaves. In the beginning of the article, Thomas explicitly disavows the equivalence of undocumented migrants and slaves, noting that the former have some rights and are therefore in quite a different position from the latter. Yet she is drawn to the parallel, returning to it at the end of the article. Thomas first argues that the thread that ties undocumented status and slavery is the deprivation of the right to freedom of movement. She recognizes that the analogy is imperfect: In her view because the former group is forcibly returned to the country of origin while the latter is forcibly returned to forced labor.  I agree with Thomas that undocumented migrants face problematic restrictions on their freedom of movement.  But I would distinguish that right from the right to territorial security.  In other words, the inability to travel within a country is conceptually distinct from the inability to regularize and remain lawfully in that country.  I therefore find more convincing Thomas’s second argument: that the main parallel between slaves and the undocumented is their susceptibility to exploitation, and that the threat of expulsion imposed by immigration law is a central factor in that vulnerability.

The article is a refreshing and provocative foray into the contemporary slavery debate and is at its strongest when showcasing the author’s original ideas. Its theoretical power is matched by its practical value, and I, for one, look forward to the day when anti-slavery advocates and scholars heed Thomas’s advice and focus on the role of immigration law in perpetuating the exploitation of undocumented migrants.

 
 

Local Prosecutors as Deportation Gatekeepers

Stephen Lee, De Facto Immigration Courts, 101 Cal. L. Rev. 553 (2013).

In De Facto Immigration Courts, Stephen Lee untangles part of the thicket that is immigration law. Immigration law is a dense and unique fusion of administrative law, constitutional law, criminal law, and more. It is these intersections, in the context of the very human story of migration, which give immigration law its essence. Professor Lee’s article identifies and explores an underexposed phenomenon arising from immigration law’s dependence on criminal law and criminal procedure.

Professor Lee’s article focuses on how events in state and local criminal law proceedings affect eventual federal civil law agency removal (deportation) proceedings in immigration courts. Specifically, he looks at the impact of state and local prosecutors’ charging and plea choices in criminal cases in eventual agency immigration law proceedings. He argues that criminal court systems are functioning as de facto immigration courts.

Because immigration law has grown to depend on criminal convictions to determine who may legally enter and remain in the United States, what happens during a criminal case often will determine whether an individual is removable under the immigration statutes. The federal immigration statutes contain intricate formulations for determining whether a particular conviction falls into a category that makes a person removable. Because those formulations are known, the immigration consequences of any conviction are (or should be) a major factor in determining the outcome of a criminal case with a non-citizen defendant. Prosecutors may choose to charge tough or leniently, or to agree or disagree to certain plea deals with immigration consequences in mind. The Supreme Court recently recognized this power in Padilla v. Kentucky, but Professor Lee goes further by assessing the phenomenon. He evaluates a system where local law enforcement officials hold the power to “control the pool of removable immigrants.” Professor Lee shines a needed spotlight on this power, gives the phenomenon a name, and insightfully evaluates the trend.

The immigration statutes are harsh and complex when it comes to the consequences of criminal convictions. Shoplifting, for example, can qualify as an “aggravated felony.” Let me explain how. The immigration law definition of “aggravated felony” includes a theft offense where the “term of imprisonment” is at least one year. The phrase “term of imprisonment,” it so happens, ignores any suspensions and looks only at the term ordered. Also, in immigration law, a “conviction” includes a guilty plea. So, if an individual accepts a plea of shoplifting with a one-year suspended sentence, voilá, we have an aggravated felony. Therefore, a guilty plea to shoplifting, which may seem like an acceptable deal from a criminal law perspective, renders an individual deportable and ineligible for almost all forms of relief from removal as an aggravated felon. If the deal had been structured differently (for example, one day less than one year), the conviction would not qualify as an aggravated felony.

State and local prosecutors, of course, are essential players in structuring plea deals. By agreeing to one year or one day less than one year, they also determine removability. One of Professor Lee’s major contributions is that he recognizes that state and local prosecutors control the pool without federal executive branch oversight. This is not a delegation of executive power, as state and local prosecutors are carrying out their traditional criminal law function. State and local prosecutors do not need federal executive branch permission to charge in a certain way or to accept certain plea deals. In this way, however, they affect federal immigration enforcement. The choices of state and local prosecutors may not be in sync with federal enforcement policy, and Professor Lee has advanced immigration law scholarship by acknowledging and confronting this disconnect.

The power of state and local prosecutors over federal immigration law enforcement is not absolute. As Professor Lee explains, a prosecutor cannot force the federal government to initiate removal proceedings (although certain convictions may make removal proceedings almost guaranteed). The federal government regularly exercises prosecutorial discretion in deciding whether to initiate agency removal proceedings. The impact of state and local prosecutors may also be limited if a foreign national is removable for some other, non-criminal reason. Also, prosecutors may be influenced by a variety of constraining factors, such as a desire to maintain a good relationship with immigrant communities, the visibility and seriousness of the criminal activity, and resource limitations.

Beyond acknowledging and confronting the phenomenon of de facto immigration courts, Professor Lee explores how this reality might be improved. He recommends that Congress consider formalizing the role of criminal courts by reinstituting the JRAD (Judicial Recommendation Against Deportation). Under the JRAD regime, sentencing judges had the discretion to recommend against deportation. While Congress eliminated the power to make such recommendations in 1990, Professor Lee asserts that a revitalized JRAD power would provide some oversight over the gatekeeping power of prosecutors. Additionally, Professor Lee emphasizes a need to consider how state and local prosecutors engage in plea bargaining in cases with immigration consequences, including whether there should be more standardized practices.

Professor Lee’s work reveals that when Congress set up the immigration laws to rely on criminal convictions to determine who may join or who must leave our society, Congress in effect gave state and local prosecutors a major role in the selection process. This is an important discovery, for it calls into question the true nature of a conviction-based removal—is it based on an exercise of federal or state power? Administrative adjudication is also implicated. This is an area not fully explored by Professor Lee. If prosecutors hold the power to dictate whether someone is removable, that effectively neuters the administrative immigration courts. If immigration judges are powerless in the face of a conviction, then the role of immigration judges is simply to give effect to the result in state court. The immigration court system is effectively avoided if a prosecutor has achieved a result in the criminal court system that leaves nothing for an immigration judge to do.

 
 

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The Lex section provides a home to a group of legal topics tending to have less frequent publications than those covered in Jotwell’s many subject sections.  Like other Jotwell sections, you can expect an annual contribution from each of the leading scholars listed in the right margin, with the introduction appearing at Jotwell.com and the full text here. we welcome unsolicited contributions that follow our author guidelines–but here they can review works covering any subject relevant to the law.