Yearly Archives: 2020
Jun 12, 2020 Juliet StumpfImmigration
Daniel Farbman,
Resistance Lawyering, 107
Cal. L. Rev. 6 (2019), available at
SSRN.
“Resistance is useless,” said the Vogon guard to Ford and Arthur, the intergalactic protagonists of Douglas Adam’s Hitchhiker’s Guide to the Galaxy. That statement turned out to be pretty accurate. Despite Ford’s attempt at resistance through searing critique of the bureaucratic system that the Vogon guard serves, he and Arthur are summarily pushed through the airlock into the starry void.
Perhaps what Ford needed was the lesson in Daniel Farbman’s Resistance Lawyering: that resistance staged from within an unjust and illegitimate system, rather than from the outside, can be dramatically effective. Farbman illustrates this through examining resistance to the Fugitive Slave Act of 1850, the sharp edge of a system that shaped both the racial trajectory of this nation and our national yardstick of the meaning of injustice.
Resistance Lawyering introduces to the historical stage a troupe of unknowns: abolitionist lawyers who used the stingy, slanted procedural rules of the Fugitive Slave Act, in combination with political savvy, to “wage a proxy war against the institution of slavery.” Walking the halls of Congress or bringing impact litigation to defeat slavery, approaches that attack the institution from the outside, was not their methodology. Instead, they were direct service lawyers, employing the summary processes of the Act in service of their clients’ freedom and also their abolitionist commitment. These lawyers’ movement politics manifested in a commitment to ensuring that their clients remained free by engaging with and using the system the lawyers opposed.
Celebrating success in these cases would have been in tension with the idea that had significant traction for abolitionists: that the Fugitive Slave Act imposed relentless unremitting injustice on people who had succeeded in fleeing slavery. The historical consensus has embraced that narrative, concluding that the overwhelming majority of people were returned to slavery. Farbman’s groundbreaking archival research, however, reveals that this direct service, linked with an unwavering commitment to opposing enslavement, was far more effective than previously realized. The article reports that “of 210 cases invoking some form of process under the Law, eighty-one (38.5 percent) of the fugitives ended their cases as free people,” either exonerated, escaped, or having had their freedom purchased.
I like this article (lots) because, in addition to the revelations that archival research brings, and to the light the article sheds on one of the most harrowing decades in this nation’s history, it’s a good read. Farbman introduces us to characters who once drew breath here, at the most important crossroads of their lives–people like Lewis, captured by a slavecatcher, who obtained representation by two abolitionist lawyers: John Joliffe and future president Rutherford B. Hayes. While his lawyers engaged with the Fugitive Slave Act commissioner, Lewis seized an opportunity not contemplated by the Act:
“While the room (including the lawyers on both sides) was thus distracted, Lewis slipped his chair back a little bit to make space for himself. Noticing that nobody took note of him moving his chair, he did it again until he was behind the marshal and almost in among the crowd. Still no one noticed his movements, so he quietly stood up and stepped backwards. An ally in the crowd gave him a nudge of encouragement and someone put a hat on his head. Then, while [Commissioner] Carpenter droned on, Lewis quietly walked right out of the courtroom and mingled among the crowd of free black activists who had gathered to observe the hearing.”
Lewis made it to a safe house and ultimately to Canada and freedom.
The article dubs this approach of working within the system in furtherance of its destruction “resistance lawyering.” Abolitionist lawyers were able to both protect their individual clients and use those cases to further political opposition to slavery. Resistance lawyering worked when the lawyers won, either by overcoming the procedurally-skewed odds and convincing an often-sympathetic judge on the merits, or by delaying the process sufficiently so that the client took the opportunity to escape or abolitionist groups staged a rescue. Even when lawyer lost though, the legalized violence of the return of a client to enslavement, and the inflicted horrors of legalized retaliation, laid before the public, furthered the abolitionist crusade against the law. This tactic of delay and transparency frustrated the summary process in the Fugitive Slave Act that was intended to facilitate rapid return of people who had made it to the North, with as little publicity as possible.
So what does this have to do with immigration? (After all, I’m an immigration editor for JOTWELL.) The article singles out immigration law as one area in which resistance lawyering has taken root. The United States has over the past few decades constructed a grand apparatus of immigration enforcement that many advocates believe encroaches on once sacrosanct principles of immigration law, like asylum law and family unity. The development of these institutions—what Eisha Jain has called the enforcement pyramid—results in mass deportation and detention but also play out among legal, social, and racial lines when enforcement manifests as surveillance and social control of communities of color. Arrest, deportation and detention rates have soared as have rates of conviction for immigration crimes. Procedural shortcuts to expelling noncitizens using administrative forms of deportation now leapfrog court proceedings as easily as turnstile jumping.
The lesson that Resistance Lawyering brings to the present is that daily direct advocacy linked to movement ideology has been effective in resisting institutionalized injustice. The article points to immigration law as one of several areas where resistance lawyering has either taken root or could. Stephen Manning and I have written before about massive collaborative resistance to family detention. That resistance effort relies on the accumulation of daily direct service actions yoked to the larger goal of frustrating, opposing, and ending family detention itself. Ingrid Eagly, Steven Shafer, and Janna Whalley have documented the role that immigration courts (and advocates) have played in reducing deportation and detention by reversing half of the negative credible fear decisions of asylum officers and systematically lowering the bond amount set by detention officers.
For observers of legal transformation, Resistance Lawyering holds another lesson. As commentators, scholars, and analysts, we often train our binoculars on impact litigation making waves in the Supreme Court, track the freefall of comprehensive immigration reform, or obsess over high-level agency policy and pronouncements. Resistance Lawyering teaches us that when we overlook the integration of direct service with political goalposts, we may be missing the game.
May 21, 2020 Angela BanksImmigration
In 2018 the Pew Research Center reported that approximately two-thirds of all unauthorized migrant adults in the United States have lived here for more than ten years. The average length of residence is fifteen years. The unauthorized migrant population has become a more settled population rather than a temporary population and mass deportation is politically impossible. In light of these realities it is critically important to seriously explore a pathway to lawful immigration status and/or citizenship for this population. Wadhia’s recent article in the Notre Dame Journal of Legislation argues that long-term residence should be a basis for access to regularizing immigration status in the United States. This argument is rooted in the historical use of long-term residence as the basis for a variety of forms of relief in immigration law.
Americans in Waiting: Finding Solutions for Long Term Residents offers a detailed overview of the role that long-term residence has played in the past, the role that it currently plays, and the role that it could play to address the immigration status of the almost 11 million unauthorized migrants in the United States. Long-term residence in the United States has been recognized as a mitigating factor in deportation cases since 1891 when Congress authorized the deportation of individuals who became a public charge within one year of arrival. The one-year statute of limitations was later extended to five years and this approach to deportation grounds was continued in 1917 when crime-based deportation grounds were adopted.
As historian Mae Ngai notes in the classic text Impossible Subjects: Illegal Aliens and The Making of Modern America “it seemed unconscionable to expel immigrants after they had settled in the country and had begun to assimilate.”
As Wadhia explains with the words of Ngai, “they settle, raise families and acquire property–in other words, they become part of the nation’s economic and social fabric.” (P. 30.) Thus, deportation was not appropriate for long-term residents regardless of their immigration status or their actions within the country.
Wadhia’s article provides an incredibly useful overview of the various legal tools that have been used historically, and today, to provide relief to long-term resident non-citizens. The article begins with registry and ends with an order of supervision. Each tool offers a different type of relief, but each is available based on the non-citizens’ long-term residence in the United States. The additional tools addressed are the pathway to citizenship created in the 1986 Immigration Reform and Control Act, suspension of deportation, cancellation of removal, the 1997 Nicaraguan Adjustment and Central American Relief Act, temporary protected status, general deferred action, and the 2012 Deferred Action for Childhood Arrivals program. These tools vary in whether or not the recipients obtain lawful permanent residence status, permission to reside in the United States temporarily, or a promise not to deport for a specified period of time along with work authorization.
The political challenges which the United States of America is currently facing regarding the fate of approximately 11 million unauthorized migrants are not new. Long-term residence has historically been a basis for viewing individuals as members of our national community and providing a pathway to lawful immigration status. The American polity recognized presence and the resulting connections as paths to membership. Even though this approach to membership has not been applied equally to all immigrant groups, it is a principle that has been operationalized in our legal system. The political reality is that almost 11 million individuals are not going to be deported from the United States en masse. Therefore, it is important to discuss options for recognizing the de facto membership of this established population rather than allowing them to languish with uncertainty, limited employment options, and limited opportunities for social and political engagement. This article and Wadhia’s important book, Banned: Immigration Enforcement in the Time of Trump (2019), provide important insights on the role and use of discretion in responding to this challenge. Ultimately a legislative response is necessary to provide unauthorized migrants with durable solutions, but Wadhia outlines a wide range of statutory options that demonstrate that long-term residence is a compelling basis for providing a durable solution.
Apr 21, 2020 Caprice RobertsRemedies
Bernard Chao,
Privacy Losses as Wrongful Gains, (forthcoming), available at
SSRN.
Here’s the problem: data breaches are on the rise, but they may not cause provable losses. This gap exists because traditional legal theories do not adequately protect the privacy interests at stake. Should the law have a method for identifying and capturing wrongful gain from those breaches? If so, should private plaintiffs be able to strip such gains in order to undo unjust enrichment and deter opportunism? Bernard Chao articulates why the law of unjust enrichment and restitution present a viable pathway for plaintiffs to hold data breachers accountable by disgorging gains earned from the breach. As Chao’s article shows, the law of unjust enrichment will provide both a basis for a more viable cause of action and a preferred remedy. The preferred remedy is disgorgement of profits.
Chao effectively shows the need for this paper as well as the justification for the lure of restitution. The lack of familiarity with and misconceptions about this body of law make Chao’s task a difficult one. Redesigning the solution requires an appreciation of law that is beyond the working knowledge of countless law professors, litigators, and judges. Scholars bemoan data breach laws as insufficient. Some scholars and judges see data breach problems as governed by common doctrinal boxes such as tort, privacy, and contract law, and assume one or more of those boxes forecloses any ability to pursue unjust enrichment paths. This limited conception needs to change. Unjust enrichment and restitution law is equally applicable, and ultimately, more advantageous as a pathway to recovery. Restitution has the ability to address the wrong, and shape an ideal remedy that overcomes otherwise insurmountable obstacles for the victims of data breach. It is not without limits. Once raised properly, judges and juries can effectively fashion the relief to avoid unjust enrichment. Chao’s work will go far in achieving this critical repositioning of the law of restitution.
Existing scholarship suggests broadening conceptions of privacy harms. Rethinking what constitutes harms adds value to the scholarly dialogue. But, as Chao demonstrates, those theories will continue to encounter obstacles of proof given the elements of such causes of action. It is true that judicial interpretations of harm are sometimes restricted unnecessarily to financial losses. Incorporating intangible harms is a step in the right direction, but it does not solve all of the possible proof problems. Unjust enrichment law avoids this roadblock by removing the focus from compensating for plaintiff’s losses to preventing the wrongdoer’s unjust gains made as a result of the data breach.
The first part of Chao’s article describes typical privacy losses and how establishing the proof of those losses will be the downfall of most plaintiffs. Both the law of contract and tort pose barriers to recovery for victims: The goals of such causes of action have traditionally been to compensate victims for loss. As he wisely notes, these barriers have no real connection to the underlying merits of the privacy victims’ allegations of wrongdoing. Conventional bodies of law view plaintiffs’ intangible or hard-to-prove damages as not cognizable. If an individual can’t sell her own data, how can she prove that misuse of that data has caused her to sustain a financial loss? Further, the fact that she has not sold her own data shows that she values it above the market price; thus demonstrating that a market-price measure of damages would also be inadequate. This is the problem the classic doctrines of compensatory remedies pose for plaintiffs.
Further, Chao addresses the obstacle of constitutional standing as it relates to plaintiff’s need to show actual injury. He usefully explores Clapper v. Amnesty International, and Spokeo, Inc. v. Robins. Chao builds on the critiques raised by other scholars such as Felix Wu who criticize standing doctrine’s current strictures. As Chao notes, standing requirements continue to pose significant hurdles for plaintiffs. Chao then suggests the law of unjust enrichment and restitution as the best solution to all these problems. Gain-based theories add a wrinkle to standing jurisprudence, but unjust enrichment claims meet standing strictures, as the Spokeo amicus brief filed by restitution and remedies scholars demonstrated.
Instead of focusing on plaintiff’s harm, unjust enrichment keys to defendant’s wrongful gain. Chao asserts that privacy scholars have ignored unjust enrichment and forgotten restitution remedies. According to Chao, Daniel Solove and Danielle Keats Citron’s important contribution on data breach harms only notes unjust enrichment in passing as one possible way to address the injury. Unfortunately, they are not alone. Lawyers and courts, too, fail to treat restitution seriously. As Chao explains, the law of unjust enrichment and restitution disappeared from the American legal mindset. Doug Laycock documented this lamentable absence from our collective imaginations in his important work: Restoring Restitution to the Canon. Chao is correct that there is much work needed to rebuild this foundation.
It starts with education. Chao’s article offers definitions to assist readers with both the underlying theories of restitution as well as its remedies including disgorgement. He also explores exactly how the law of restitution applies to privacy breaches, and how it overcomes many of the doctrinal hurdles found in tort, contract, and constitutional law. The incredible work of the American Law Institute’s Restatement (Third) of Restitution and Unjust Enrichment (2011) is another amazing resource with over 1,400 pages of applications and related commentary. American law schools should offer courses in restitution again. Andrew Kull, the Reporter for the Restatement, and Ward Farnsworth authored a wonderful restitution casebook in the hopes that if you build it, they will come. I was lucky enough to teach this material in an advanced course at the University of Florida Levin College of Law. My students frequently wondered why they hadn’t studied any of the restitution cases before. They appreciated the variety of scenarios that could raise unjust enrichment, and the ways that the law of unjust enrichment and its remedies could offer relief where other bodies of law failed. The remedial power of restitution’s disgorgement and its constructive trust have undeniable appeal. We also spent much time discussing viable defenses to restitution claims and remedies. The law of unjust enrichment contains its own doctrinal hurdles, and company defendants will raise a host of defenses including efforts to offset profits with those it had every right to make. Courts are capable of balancing the interests of justice with doctrines of limitation such as attribution. But unjust enrichment will go far to open more access to claims and remedies than more traditional claims covering data breaches.
Until more are able to offer courses in restitution, we are fortunate to have thoughtful articles like Bernard Chao’s that conduct inquiries in the forgotten corners of the law. Restitution may not be a panacea, but restitution has more than enough to offer to solve many thorny problems raised by privacy and data breaches. If a company improperly uses a victim’s data and profits from that wrongful use, why shouldn’t the law honor a claim to disgorge that unjust gain? Chao concludes that the law should, and I agree.
Mar 20, 2020 Jaya Ramji-NogalesImmigration
Petra Molnar, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, 8 Cambridge Int’l L. J. 305 (2019).
As scholars of immigration law have been busy digesting the firehose of law and policy changes shooting out of the Trump administration, the use of new technologies at the border has been proliferating. Petra Molnar’s new article, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, reminds us that we must begin to pay closer attention to these developments and how they are deployed and regulated. Building on her excellent report, Bots at the Gate, the article provides a timely and useful roadmap of the relevant technologies and their very real risks. Though in the end Molnar is more sanguine than I about the potential of human rights law to mediate these risks, she rings a crucially important warning bell that we would all do well to keep an ear out for over the roar of the firehose.
The article begins, as it should, with a basic description of the “class of technologies that assist or replace the judgment of human decision-makers.” Automated decision-making has the potential to impact adjudication processes and outcomes by the full range of immigration actors, from border patrol to immigration courts. But what technologies are contained within this category? Molnar lists four: artificial intelligence, machine learning, automated decision systems, and predictive analytics, describing them as technologies that can be taught and can learn. Along with the description, she raises the key concern about the opacity of how exactly these decisions are made. As Frank Pasquale and others have asked, what is in that algorithm? Bias, perhaps? Molnar makes the important connection between the literature that critically examines automated decision-making and immigration adjudication. She notes that these technologies present the same risks as human decision-makers: accountability, bias, discrimination, error, and transparency, reminding us not to be fooled by the algorithm’s veneer of scientific objectivity.
From this definition, the article identifies four key areas of concern around the use of technologies in migration governance, offering a foundational map that calls for future researchers to engage. The first concern Molnar raises is the privacy breaches arising from data collection, ranging from the monitoring of mobile phone records to analysis of social media to geotagging. She next examines concerns around biometrics and consent in conditions of unequal bargaining power, offering the disturbing example of refugees in Jordan who were required to submit to iris scanning in order to receive their weekly food rations. Third, Molnar describes the use of technology in surveillance, explaining that the militarization of the border through the use of drones, robots, and remote sensors as border control pushes migrants to more dangerous routes that are more likely to lead to death and serious injury. Finally, the article explores automated decision-making, discussing ICE’s bail determination algorithm and “Extreme Vetting Initiative.” Each of these topics is crying out (loud enough to be heard over the firehose) for future research by Molnar and others.
The article concludes with an explanation of why these developments are particularly concerning in the migration management arena. The pace of technological innovation combined with the dearth of transnational regulatory frameworks present a potent recipe for abuse when baked into migration’s “discretionary space of opaque decision-making.” Molnar explicitly links these concerns with the use of migration management as an experimental forum with the use of data collection and tracking by genocidal regimes in Germany and Rwanda. She explains that there are no legally binding international agreements governing the ethical use of AI in migration management; the existing piecemeal guidelines and task forces are insufficient to face the task at hand. In particular, Molnar notes the need for specificity in legal standards to regulate AI in the migration space.
She suggests a human rights framework as a potential solution. Though less optimistic about this proposal given human rights law’s limited protections for administrative decision-making as well as its lack of specificity, I am indebted to Molnar for pushing forward the conversation and certainly agree that “a more rigorous global accountability framework is now paramount.” An alternative route might be to pressure big technology companies with specific standards set by an independent body, but the most important next step is to dive into the project that Molnar has laid out for immigration scholars. As she aptly notes, “the complexity of human migration is not easily reducible to an algorithm.” Those of us with the relevant substantive knowledge must now turn our attention to figuring out how to harness the potential firehose of these new technologies for the benefit of humans on the move, in all of their brilliant complexity.
Cite as: Jaya Ramji-Nogales,
Watch This Space: AI at the Border, JOTWELL
(March 20, 2020) (reviewing Petra Molnar,
Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, 8
Cambridge Int’l L. J. 305 (2019)),
https://lex.jotwell.com/watch-this-space-ai-at-the-border/.
Feb 26, 2020 Eric BiberEnvironmental Law
Robert C Ellickson,
Zoning and the Cost of Housing: Evidence from Silicon Valley, Greater New Haven, and Greater Austin, available at
SSRN.
An article about the cost of housing may seem a surprising choice as one of the year’s best environmental law articles. But there are good reasons for it: Housing costs in major coastal metro areas in the United States are soaring. Strong evidence suggests that the stringent of land-use regulations is a major contributor to those price increases Some commentators also consider state-level environmental review laws, such as the California Environmental Quality Act, among those stringent land-use regulations – thus implicating environmental law as a cause of the housing crisis. At the same time, transportation is one of the primary contributors to greenhouse gas emissions in the United States, and is the largest single sector now in California. Addressing emissions from transportation requires a reduction in vehicle miles travelled by Americans, which in turn requires densification of the built landscape to facilitate walking, biking and public transit use. But densification may be difficult or impossible in the face of soaring metro housing costs and stringent land-use regulations that obstruct redevelopment.
Ellickson’s piece provides a timely contribution to both of these debates, because it provides something that has been sorely lacking in the debates over how land-use law shapes housing policy and the built form: Data on how the land-use regulatory system actually operates in practice. Up to now, most of the literature (whether economic, planning, or law) that has tackled how land-use regulation operates on the ground has been either speculative, or it has relied on surveys of developers and planners. This is in part because the local nature of land-use regulation in the United States, combined with its sometimes extreme complexity in local jurisdictions, makes data collection expensive and difficult. Surveys attempt to elide this issue by asking for perceptions or knowledge of land-use regulation by actors (planners and developers) who should know much about the topic, but they may not always accurately reflect the realities of land-use regulation on the ground. But if we want to solve the problems of housing cost and greenhouse gas emissions from transportation, we need to have good data on the true nature of land-use regulation is in the United States.
Ellickson’s work is a great first step in this direction.
Ellickson painstakingly collects data on the zoning regulations for a few dozen jurisdictions in three major metro areas: Silicon Valley/San Jose, CA; Austin, TX; and New Haven, CT. Ellickson documents how all of these jurisdictions have significant limits on how much housing can be produced – in large part through the use of single-family zoning (requiring all development in a particular zone to be single-family houses) and minimum lot sizes (the minimum size of land that can be developed for a single-family house). Ellickson shows how some cities in these metro areas lock up almost all of their land through large-lot, single-family zoning, excluding multi-family housing and even relatively affordable single-family houses. These kinds of zoning regulations are antithetical to producing either affordable housing or walkable neighborhoods – they are the epitome of what is called exclusionary zoning. He uses simple summary statistics to emphasize how dramatically exclusionary much of the zoning is.
Ellickson also helpfully provides three additional elements to his data collection. First, he gives deep historical context for how each metro area has developed over time, including changes to the zoning system that he believes have been most impactful. Second, he does some nice comparisons across his metro areas, showing how the Austin, TX area does have relatively more development-friendly zoning, and how the most exclusionary metro area of all is New Haven, CT. Third, Ellickson develops some very basic measures of how stringent zoning might be – the incidence of large-lot zoning and small-lot zoning, and the amount of land available for multifamily housing. This metric is quite useful in that it allows for rapid and high-level assessments of zoning stringency across a range of suburban jurisdictions, although the metrics would be less useful for assessing central-cities, which usually have a much more complicated zoning system.
If I were to have a critique of Ellickson’s excellent piece, it is that he could engage more with the environmental law implications of his work. Ellickson is primarily descriptive rather than normative in the article, but at times he makes observations on the feasibility of development in areas such as hillsides, wetlands, or water supply districts that might be seen as understating the environmental and societal benefits of protecting those lands. For instance, Ellickson notes that large areas of the foothills of Silicon Valley have been protected as open space, though similarly hilly and steep areas have been developed in the East Bay – the Oakland and Berkeley hills. But those areas were subject to a tragic firestorm in 1991, killing 25 people and destroying thousands of homes – a major discussion today in California is whether those kinds of areas should be developed at all, given their vulnerability to increased fire risk in a world subject to climate change.
A more important connection with environmental law, however, is the implications of Ellickson’s work for efforts to densify American cities and metro areas as a response to climate change. Ellickson doesn’t touch on this, but his work highlights the deep challenges that cities and states around the country will face if they seek to decrease automobile use and reduce greenhouse gas emissions from transportation. That is a real contribution of his piece (albeit unstated), and I hope he continues to do more work in this vein (the footnotes promise a follow-on piece with a more historical bent) and considers building connections to environmental law in general, and climate change in particular. And I really hope that others follow Ellickson’s lead in collecting data on land-use regulation on the ground (some of which I have been doing with collaborators). We need a lot more data in this area, given its central importance for housing, environmental law, climate change, and more.
