Yearly Archives: 2015
Jun 26, 2015 Juliet StumpfImmigration
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.
May 26, 2015 Bethany BergerNative Peoples Law
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.
Apr 28, 2015 Eric BiberEnvironmental 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.
Apr 1, 2015 Jaya Ramji-NogalesImmigration
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),
https://lex.jotwell.com/the-borders-of-human-rights/.
Jan 27, 2015 Elizabeth AdelmanLibrarianship and Legal Technology
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.
