Jul 28, 2025 Jaya Ramji-NogalesImmigration
What would a theory of migration that takes seriously the lived expertise of migrants and their families contribute to the scholarly conversation? Drawing from extensive qualitative interviews in Mexico with community members who journeyed to the United States to seek work and those they left behind, Prof. Ragini Shah has a compelling answer: a theory of migration as extraction. The thesis of her new book, Constructed Movements: Extraction and Resistance in Mexican Migrant Communities, builds on prior work on decolonizing migration and migrations as reparations, evolving those critiques into a comprehensive theory of migration.
This brilliant new work begins with the voices of migrants themselves, offering insightful quotes and a firsthand understanding of the journey to El Norte and its impact on individuals, families, and communities. One of the invaluable contributions that this qualitative work offers is a clear description of the emotional cost of migration as extraction. The interviews provide powerful insights into this profound price that families paid and continue to pay, and the ongoing impacts on migrant communities. Prof. Shah describes a vicious cycle of dispossession, dismemberment of family relations, and exploitation, as well as a story of agency on the part of migrants.
Prof. Shah takes these lived expertise interventions seriously, not only for their individual perceptions, but also as a blueprint for the policy and theory contributions of the book. From the insights of her interviews with migrants and the loved ones they leave behind, Prof. Shah builds a comprehensive theory of migration as extraction. She provides the reader with invaluable historical context, describing the political economy dimensions of this migration, offering a structural framework to understand the exploitation and profound harms these families have suffered as part of a broader pattern imposed on migrant-sending countries by migrant-receiving countries. In particular, the book explains the role of global economic inequality and neocolonialism in constructing migration as extraction, dividing this phenomenon into three phases: dislocation, displacement, and entrenchment.
For the dislocation phase, Prof. Shah describes the uprooting of migrants in search of sustenance and the separation of families. Connecting the interviews with global neoliberal mandates, she explains how the International Monetary Fund’s policy of structural adjustment and the North American Free Trade Agreement profoundly weakened the public infrastructure in Mexico, driving down wages and dismantling access to education, two key factors that push families to migrate. For the displacement phase, Prof. Shah examines the process of labor recruitment and incarceration as well as the turn to coyotaje. She presents a timeline that delves deep into history, from Spanish colonization to the bracero programs to the maquiladoras, to provide a comprehensive description of the extractive nature of migration. For the entrenchment phase, Prof. Shah highlights the disinvestment cycle, family disintegration, and the remittance industry, explaining these phenomena and the role they play in perpetrating ongoing cycles of extractive migration.
These three phases are invaluable in describing the phenomenon of migration as extraction, and also lay a foundation for potential responses, examples of, and possibilities for resistance. Prof. Shah highlights the importance of the return of resources, local employment, and the repair of relationships with kin and land, a response that she describes as “the right not to migrate.” This right centers human autonomy, contesting the economic conditions at home that divest migrants of the choice to move. In particular, the lack of infrastructure, the lack of support for agriculture, and the lack of access to education are key problems that require investment in order to uphold the right not to migrate and to dismantle the phenomenon of migration as extraction. To this end, Prof. Shah highlights the importance of group-based resistance, drawing from the insight offered by one of her interviewees, Don Santos:
People think that migration is a benefit, but we don’t have anything in my pueblo. If we can get good work [in the United States], we can build a house for ourselves, buy clothes, a car. But it does nothing for the whole pueblo.
Cite as: Jaya Ramji-Nogales,
Migration as Extraction, JOTWELL
(July 28, 2025) (reviewing Ragini Shah,
Constructed Movements: Extraction and Resistance in Mexican Migrant Communities (2024)),
https://lex.jotwell.com/migration-as-extraction/.
Jul 11, 2025 Anita KrishnakumarLegislation
James J. Brudney & Lawrence Baum,
Does Textualism Constrain Supreme Court Justices?, available at
SSRN (Feb. 3, 2025).
Textualist jurists and scholars have long contended that their preferred interpretive approach is superior to competing approaches because text-based analysis limits judicial discretion and constrains judges. Indeed, the late Justice Scalia declared in his book, Reading Law: The Interpretation of Legal Texts, that a textualist interpretive approach would “narrow the range of acceptable judicial decision-making” and “curb—even reverse—the tendency of judges to imbue authoritative texts with their own policy preferences.” Correspondingly, textualists long have criticized legislative history as an illegitimate interpretive tool that “has something for everyone” and “greatly increases the scope” of judicial manipulation of statutory meaning to suit the judge’s ideological preferences. To date, these claims have gone largely untested, although several scholars have offered anecdotal evidence suggesting that textualism does not, in fact, constrain judges all that much.
Enter Professors Brudney and Baum, who marshal an impressive dataset of 660 statutory decisions involving labor and employment law statutes decided between 1969 and 2024 in order to measure empirically how well textualist interpretive tools constrain judicial decision making. The result is an article rich in both empirical and doctrinal analysis of liberal and conservative justices’ use of textual canons, legislative history, and legislative purpose to reach interpretive outcomes consistent (or inconsistent) with their ideological preferences. Because their dataset is so broad—covering 54 terms’ worth of cases—Brudney and Baum are able to document historical changes and draw historical comparisons that other scholars have only been able to gesture at anecdotally.
The authors report several important findings, summarized below:
First, although this will surprise no one, Brudney and Baum document dramatically and convincingly just how much the Court has increased its reliance on textualist tools, and correspondingly, decreased its reliance on purposivist and intentionalist tools between 1969 and 2023. For example, majority opinion rates of reference to dictionary definitions jumped from 1.0% during the 1969-1976 terms to 30.6% during the 2014-2023 terms; rates for language canon usage more than tripled from 14.6% during the 1969-1976 terms to 47.2% in the 2014-2023 terms; while rates for legislative history and purpose plummeted from 48.5% (history) and 84.5% (purpose) during the 1969-1976 terms to 13.9% (history) and 45.8% (purpose) during the 2014-2023 terms. Although I study the Court’s statutory cases closely, I found the magnitude of these increases and decreases stunning.
Second, the authors found that during the Rehnquist and Roberts Courts, both conservative and liberal justices reached outcomes that were consistent with their ideological preferences more often when they authored opinions that employed ordinary meaning than when they did not. (The sole exception was that during the Burger Court, liberal justices reached conservative outcomes more often when they employed ordinary meaning than when they did not). Thus, the authors conclude that there is no empirical evidence that ordinary meaning analysis—one of the touchstones of textualist interpretation—constrains judges to decide cases in a manner inconsistent with their ideological preferences, and there may even be some evidence that on the modern polarized Court ordinary meaning analysis enables judges more freely to adopt statutory constructions consistent with their ideological preferences.
Third, Brudney and Baum find interesting temporal changes in the relationship between judicial reliance on legislative history and the ideological valence of an interpretation. That is, the data reveal that during the Burger Court, authoring justices (especially conservative justices) were “substantially” more likely to reach an interpretive outcome inconsistent with their ideological preferences when they invoked legislative history than when they did not. However, during the Rehnquist and Roberts Courts, this pattern flipped for conservative justices—who were more likely to reach conservative outcomes when invoking legislative history than when not citing such history. For liberal justices, the rates of reaching conservative outcomes stayed almost the same whether they invoked legislative history or did not invoke such history (although liberal justices were slightly more likely to reach a conservative outcome when relying on legislative history than when not doing so). Brudney and Baum observe that in the modern era, the textualist critique that legislative history is easily manipulable has become a self-fulfilling prophecy—and they posit that textualist jurists may be more likely to use legislative history strategically in the modern era because of their jaundiced view of the manipulability of this interpretive resource.
There are other, more nuanced, empirical findings sprinkled throughout the paper, but I will leave those for readers to discover themselves.
To close, Brudney and Baum also provide a series of close doctrinal comparisons of “dueling” majority and dissenting opinions that both invoke legislative history as well “dueling” opinions that both invoke ordinary meaning. The upshot of their doctrinal analysis is that the justices duel over ordinary meaning just as much, and in many of the same ways, as they duel over legislative history. In other words, the infamous textualist critique that “there is something for everyone” in the vast legislative history of a statute is just as true for ordinary meaning analysis. Brudney and Baum thus conclude that “reliance on ordinary meaning allows for judicial discretion to the same substantial degree and along exactly the same categorical lines as when justices rely on legislative history” and that “there is every reason to conclude that the stock critique of legislative history (the risks of picking out your friends in a crowd) is comparably applicable to textual analysis.”
In short, Does Textualism Constrain Supreme Court Justices? provides much-needed empirical testing of one of textualist interpretive philosophy’s key claims. It is, of course, just one article, and much more work needs to be done in this area, but Brudney and Baum provide an admirable and welcome first foray into tackling this important empirical question. Anyone interested in statutory interpretation should read this article with interest!
Jun 17, 2025 Caprice RobertsRemedies
It’s time to get excited about deepening your understanding of the law of remedies. Law schools should deepen their commitment to hiring professors to teach remedies courses, and scholars should add remedies perspectives to their research agendas. (If you are wondering How Remedies Became a Field, Doug Laycock has answers. Its importance is worldwide. It is rich with theory, and it is practical and meaningful.) Professors Katy Barnett and Sirko Harder’s latest book, Private Law Remedies, provides a comprehensive yet accessible resource for jurists, legislators, private litigators, professors, and students. Notably, the book analyzes private law doctrines as a whole and comparatively to aid greater comprehension of the function and goals for each remedy. They diligently examine a wide array of cases to explore private remedies at common law, in equity, and per statutes. The authors meticulously explore unifying principles and identify commonalities and significant differences among private law wrongs. Their project is ambitious, functional, and successful. They candidly interrogate leading scholarly theories and carefully examine key cases. From their insights, readers can peruse a host of remedies for private law wrongs such as contracts, fiduciary duty, torts, and more.
Their work focuses on English law but includes relevant treatment of other common law countries. Without doubt, the import of the analyses will resonate with a much broader audience. The book is timely and makes an important contribution to the field of remedies. The authors artfully distill the complex field of remedies into meaningful, clear chapters that will benefit experts and newcomers.
The helpful framework begins with an introduction and then follows with general principles of compensation and responsibility. The chapters next explore remedies aligned to contract and then tort before turning to equity and coercive remedies. Valuable contributions also include chapters on vindicatory remedies and the rising frequency of awards for disgorgement of gain. The authors wisely treat restitution remedies and giving back relief. The last chapter explores proprietary remedies, which cover remedies that provide property rights over relevant assets.
Overall, this book structures remedies pursuant to their function regardless of the underlying cause of action. Classic functions include compensation, coercion, vindication, disgorgement, and give-back restitution. The authors recognize that some remedies have several functions, but they identify the dominant function as a pragmatic organizational method. This system enables the reader to glean commonalities and distinctions for a more nuanced understanding.
Professors Barnett and Harder divide core responsibility based on relevant extensive expertise, but both are jointly responsible for the whole of the book. It reads as one voice. Chapter one builds the foundation with key definitions and provides the framework for how remedies operate given their common law history. Readers more conversant in history may not need but will enjoy the concise summary and useful charts. The authors draw comparisons to help civil lawyers appreciate the nonexistence of a comprehensive Code because of the case-by-case development of common law remedial doctrines. Chapter one also outlines the primary functions of remedies in the private law. This chapter helpfully provides a functional roadmap of remedies law correlated to those key functions.
As to the definition of remedies, the authors offer several functional answers—a cure that ameliorates a wrong, for example, or remedy as the ultimate outcome of litigation. Then, they delve deeper into scholarly explorations. They provide an insightful analysis of scholarly treatments such as John Austin on the separation between rights and remedies, but then Barnett and Harder demonstrate the reality that many remedies, including restitution, fail to fit such models. They engage Peter Birks’s important distinction between wrongs and not-wrongs for unjust enrichment. They also explore Rafal Zakrzewski’s definition of remedies as, for example, rights immediately occurring from specific judicial commands. According to Barnett and Harder, the book’s discussion of remedies largely fits with Zakrzewski’s frame, but several remedies should be conceptualized as permission by the court for claimants to react to wrongs in particular ways (self-help remedies) or as procedural mechanisms (equitable orders such as injunctions). The authors also explore the relationship between right and remedy by offering salient critiques of two polar positions: (i) the dualist view providing a discretionary where a judge does whatever is most just or (ii) the monism view, honoring the English tradition, that offers an extremely rigid system where the remedy must reflect the right.
The book does not simply critique without providing an alternative path. The authors endorse an approach that David Wright has described as a sticky relationship between the remedy and the right. According to Barnett and Harder, typical defaults would likely apply, such as expectation damages for contracts, but where inappropriate, structured discretion would permit consideration of other remedies according to specified criteria. In my remedies scholarship, such as a piece coauthored with Ronald J. Krotoszynski, Jr., Reimagining First Amendment Remedies, I propose a similar notion as the application of principled discretion bounded by precedent and doctrine especially where the remedy is equitable. Given the effort to balance concerns, the Barnett and Harder approach is worth serious consideration.
Chapters two and three are essential for appreciating relevant general principles: assessment of compensation and attribution of responsibility—both core to English law. Both chapters provide foundational understanding of pivotal doctrines such as avoidable loss and remoteness as well as usable litigation tools for valuating losses in lump-sum judgments. In the series of chapters devoted to distinct wrongs such as contract and tort, the book artfully synthesizes key concepts and cases in a manageable, useful form. The several chapters devoted to remedial functions, chapter seven on coercive remedies guides the reader through the equitable thicket of specific performance and injunctions, including exploration of traditional hurdles such as inadequacy of legal remedy (discussed as inadequacy of damages) and other discretionary bars like the unclean hands doctrine. This chapter, as with all the chapters, provides ample citation and helpful categorization through useful headings. Chapter eight on vindicatory remedies is particularly timely. These remedies include, for example, self-help remedies, exemplary damages, declaratory relief, and nominal damages. The AALS Torts section focused on vindication and dignitary harms, as have thoughtful scholars such as Rachel Bayefsky in Dignity and Judicial Authority. Chapter nine provides groundbreaking exploration of the remedy, disgorgement of gain. Here, the authors summarize the historical roots and distinguish inapplicable goals such as compensation. They also navigate the uncertain waters of novel, modern disgorgement awards and the challenges of overcoming applicable defenses.
In later chapters, the authors grapple with topics that are easily fields unto themselves such as remedies for unjust enrichment. In chapter ten on restitution, the authors avoid endorsement of any one scholar’s conception, but instead offer an incredibly helpful outline of the modern law of England and Wales with explanation on the current fault lines of controversy. The book unpacks thorny, technical (and very often Latin) terms and incorporates a welcomed inclusion of the American Law Institute’s Restatement of Restitution contribution to the international dialogue on unjust enrichment. The case exploration, developed through each relevant unjust enrichment doctrine, is sharp, contextualized, and valuable. For another example of vexing inquiry, in chapter eleven on Proprietary Remedies, the authors wisely acknowledge the challenges in distilling a complex, less coherent body of law. Still, they ably provide a baseline for greater understanding of such proprietary remedies as constructive trusts. The book provides accessible examples throughout to aid in conveying the nuances.
Overall, their thoughtful treatment in Private Law Remedies reminds all that there is much more worth learning about remedies. I am grateful for their illuminating contribution. Their work reaffirms why we all do what we do. Time devoted to teaching, researching, and writing in the field of remedies is time well spent.
May 19, 2025 Steve GoldEnvironmental Law
In my most recent Jot, I reviewed two articles that explored “The Limits to Law(s)” – more precisely, the inability of United States environmental law to respond quickly and effectively to the global problems of PFAS contamination and plastics pollution. William Boyd’s De-Risking Environmental Law criticizes the law’s ineffectual response to toxic hazards more generally and identifies a surprising culprit. “Environmental law, it seems,” Boyd writes, “suffers from too much science and not enough law.” (P. 156.)
What we need instead, says Boyd, is “a new ethics of regulatory science . . . that recenters law in the commitment to protecting public health.” (P. 153.) This new twist to an old debate about whether ethics or science should serve as the primary justification for environmental law startles the reader. After all, science appeared to have won that debate decisively and long ago. How could any government make policy choices to protect public health or ecosystems without a thorough understanding of the medical and ecological dynamics at stake? We are so accustomed to relying on science to justify regulatory interventions it seems impossible to imagine any other way of thinking.
And that, according to Boyd, is exactly the problem.
Of course, Boyd does not oppose applying scientific knowledge to regulatory decision-making. Rather, he contends that regulators have been applying the wrong kind of science in the wrong way. His gripe is with quantitative risk assessment and the preeminent role government agencies, especially EPA, have given that methodology.
Boyd shows that across EPA, quantitative risk assessment sits like a troll athwart the bridge to regulation. The troll demands to be fed, but its appetite for “sound science” is insatiable. With the troll on guard, almost no regulatory initiative can get across the bridge to the greener pastures of risk management. So, EPA remains ever in pursuit of its statutory mandates to protect public health from toxic exposures, but rarely able to fulfill its responsibility.
How did this situation arise? Relying on an impressively broad range of sources, Boyd persuasively demonstrates that the idea of quantitative risk assessment as a necessary predicate for regulation arose in reaction to rather than in service of early agency efforts to implement the protective legislation of the 1970s. He documents a multipronged push for this idea coming from trade associations, from the “science policy establishment,” from reviewing courts, and ultimately from within EPA itself. The articulated rationale was to improve regulatory decisions by making them more “scientific,” more objectively credible, and more defensible. But the effect was to impede regulatory decisions by making them more difficult, more time-consuming, and more contestable.
A cynic could justifiably conclude that this effect was foreseen and intended by industries advocating in their own self-interest and by ideological opponents of government regulation. Indeed, part of Boyd’s purpose is to make that case. But Boyd goes further, arguing that even with the best intentions and tireless effort of agency management and staff, quantitative risk assessment is beset by “knowledge problems” (P. 204).
De-Risking Environmental Law systematically explores inherent limitations that belie the ability of quantitative risk assessment to deliver clear scientific answers on which regulators and society could rely. One problem is that in some ways the real world is too complex for a methodology that entails simplifying assumptions. Boyd highlights two of these complexities: cumulative effects of multiple and variable toxic exposures and unequal distribution of toxic burdens in conjunction with socioeconomic inequality. Another problem is that although quantitative risk assessment can speak the language of probability, it cannot cope effectively with genuine uncertainty: the lack of knowledge about what values to assign variables in risk assessment models or how to describe those variables’ relationships. Yet the study of toxic exposures and effects is rife with known unknowns, not to mention unknown unknowns. Worse, Boyd explains that trying to deal with these problems by making risk assessment models more complicated is a Sisyphean task because new uncertainties ramify with each added complication. The answer to the problems of risk assessment is not more risk assessment.
The discussion of the conceptual limits of quantitative risk assessment, alone, makes this article worth reading. But Boyd also shows that these limits have consequences. “[O]pponents of regulation can always find ways to argue for more science, more research, and more data,” (P. 229), resulting in either total inaction or nearly endless delay. He provides a breathtakingly panoptic list of examples of ensnared risk assessments or regulatory initiatives: asbestos, dioxin, trichloroethylene, formaldehyde, PFAS “forever chemicals,” organophosphate residues, the proposed Yucca Mountain nuclear waste repository, the leaded gasoline phasedown, the Hudson River Superfund remedial action, and doubtless others that I’ve overlooked. It is too simplistic, as Boyd acknowledges, to ascribe these failures entirely to quantitative risk assessment, but Boyd compellingly argues that the dominant role of quantitative risk assessment is an important part of the problem. Not in the abstract, but in the “violence embedded in” (P. 228) the power “to determine which environmental harms will be imposed on whom.” (P. 169.)
In the post hoc risk regulation of toxic tort cases, courts invoking the “sound science” mantra have for more than three decades imposed stringent proof requirements on plaintiffs, justified in part by contrast to “the preventive perspective” of regulatory agencies that imposes a “threshold of proof [that] is reasonably lower than that appropriate in tort law.” Such rulings require injured plaintiffs to bear the cost of scientific uncertainty about toxic harms. Boyd’s article calls into question the reality of that preventive perspective.
To solve this problem, Boyd sketches out a truly precautionary approach that relies much less on the illusory precision of quantitative risk assessment. He endorses “innovative uses of generic approaches built on simple hazard-based triggers” (P. 246) that would be based on broad screening for and early warning of potential toxic dangers. Such an approach, Boyd contends, would provide incentives for industry to develop less hazardous alternatives to dangerous materials and products. The approach would be justified by an ethical imperative to end or at least minimize the violence of toxic exposures.
As ever, the problem is pathway. Boyd acknowledges that the prominence of quantitative risk assessment seems over-determined. The root causes he identifies – industry influence and manipulation, political backlash, activist judicial intervention and constraint – have intensified, not diminished, since the dominant position of quantitative risk assessment became entrenched. These forces seem poised not only to block the development of a new paradigm, but to immobilize any ethics-based regulatory approach that might develop, just as they immobilized the risk-based approach.
The evident priorities of the current Administration amplify the concern. There is good reason to worry that EPA is losing both the will and the ability even to continue along the path it has been pursuing. At a time when both science and law are taking major hits, thinking about how to improve their relationship may seem beside the point.
Yet even from a defensive crouch hoping to maintain what has been, it is necessary to imagine what could be. William Boyd’s De-Risking Environmental Law is a valuable contribution to a growing literature that identifies the ways environmental regulation has failed, names the reasons for those failures, and gropes toward a proactive, protective, precautionary future.
May 7, 2025 Ezra RosserPoverty Law
Uma Outka,
Energy Law and the Low-Income Household, 54
Envtl. L. 720 __ (forthcoming 2025), available at
SSRN (Jul. 01, 2024).
Uma Outka’s article, Energy Law and the Low-Income Household (forthcoming in Environmental Law), convincingly argues that the affordability challenges related to energy facing poor households should not be treated as external to the field of energy law. As Professor Outka shows, it is tempting to treat the problems faced by low-income households—high energy cost burdens, poor insulation, and vulnerability to service cutoffs—as exogenous to energy law. By sidelining such concerns as matters of poverty law, those within the energy sector, as well as academics working within energy law, can ignore the precariousness of low-income households and neglect the need for innovation and support within the field. Professor Outka succeeds in contributing to the conversation in both the energy law and poverty law spaces by presenting an in-depth history of the principal government program, the Low-Income Home Energy Assistance Program (LIHEAP), supporting the needs of low-income households, and by carefully connecting the poverty and energy law fields.
The article begins with a rich history of the LIHEAP program and then expands slightly to include the Low-Income Weatherization Assistance Program (WAP). This history will be new to many in the poverty law field since energy policy, even programs that help low-income households, is beyond the scope of most work in the field. Yet, as Professor Outka notes, access to reliable energy is often crucial for basic survival in summer or in winter. Inability to pay can leave poor households extremely vulnerable to loss of service. Even when such households can pay their energy bills—Professor Outka highlights research showing that need for money to pay utilities is the number one reason low-income households turn to payday lending—high energy costs relative to income can threaten such households’ other basic needs. The history that Professor Outka includes is presented at just the right level of detail; readers come away understanding how the LIHEAP and WAP programs work as well as the politics shaping their creation and evolution.
One of the norms of legal scholarship that can be frustrating is that it is not enough to give a good history. Though a complete description of an area of study—and Professor Outka’s article has that, the footnotes offer a great leaping off point for anyone interested in delving deeper into the political currents of these programs—would be enough in many fields, in legal scholarship the expectation is that articles will be both positive and normative. Fortunately, Professor Outka’s article delivers here too, on top of her comprehensive coverage of programs that support low-income households, the prescription she advocates for, the incorporation of the energy needs of the poor into energy law.
Just as some law-and-economics scholars have strived to define the problems of poverty as outside the bounds of ordinary legal debate, as matters that should be dealt with solely through tax-and-transfer programs, so too it is common, according to Professor Outka, for energy law works to push aside affordability concerns by declaring them matters of “poverty law.” This all-too-easy out, Professor Outka argues, is neither fair nor appropriate for the energy field. The article ends with examples highlighting ways in which deliberately incorporating the concerns and needs of low-income households into energy policy can lead to better outcomes and make the benefits of energy more secure to all households.
Professor Outka’s primary goal is to bring the needs of low-income households, and the programs that serve them, out from the cold by showing how they are fundamental to the larger energy law field. The article succeeds in that goal, but it also does the inverse, showing poverty law scholars the importance of not neglecting these programs and of elevating the place that energy policy has in our understanding of the challenges facing low-income households.
Cite as: Ezra Rosser,
Bringing Everyone, Including the Poor, in Energy Law and Policy, JOTWELL
(May 7, 2025) (reviewing Uma Outka,
Energy Law and the Low-Income Household, 54
Envtl. L. 720 __ (forthcoming 2025), available at SSRN (Jul. 01, 2024)),
https://lex.jotwell.com/bringing-everyone-including-the-poor-in-energy-law-and-policy/.
Apr 17, 2025 Rachel RosenbloomImmigration
With the Trump Administration threatening to carry out a wave of mass deportations, understanding the history of federal attempts to secure state and local cooperation in immigration enforcement feels more urgent than ever. Immigration law scholars have devoted considerable attention in recent years to the federal government’s deepening cooperation with state, county, and local law enforcement agencies, part of a growing focus within immigration law scholarship on the intersection of immigration law and criminal law (or “crimmigration law”). In large part, the story that legal scholars have told centers on the past three decades, a period in which both immigration detention and federal-state cooperation have dramatically expanded.
A new book from historian Brianna Nofil, The Migrant’s Jail: An American History of Mass Incarceration, makes a persuasive case for understanding such cooperation along a much longer timeline. Centering on the county jail, the book tells “a national story about local institutions” (P. 14), one that offers new insights into the dynamics of immigration federalism and the symbiotic relationship between the criminal legal system and the ostensibly civil regime of immigration law.
The Migrant’s Jail begins its story in 1903 in the Franklin County Jail in upstate New York, a 6-cell facility condemned as unsafe for use as a jail but used, regardless of its dangerous conditions, for holding Chinese migrants apprehended on the U.S.-Canada border. Most scholarship on immigration enforcement in the Chinese Exclusion era has focused on the Pacific coast, but Nofil offers a striking statistic: three-quarters of the Chinese migrants detained at the turn of the twentieth century were apprehended east of Ohio. Local jails in small towns like Malone, New York, played a central role in the machinery of Chinese exclusion, Nofil argues, and in the process, brought federal dollars into local economies. The sheriff in Malone, for example, could make a year’s salary in a single month by engaging in the “business” of detaining migrants.
This revenue stream is just one of the themes in Nofil’s account that will resonate with observers of contemporary immigration detention. Others include the government’s practice of moving detainees from one location to another to manipulate which court they ended up in; the government’s use of prosecutorial discretion to manage budgetary constraints and to defuse criticism when sympathetic cases garnered media attention; and the difficulties that detainees faced in accessing legal representation in remote locations.
From this starting point, The Migrant’s Jail traces the shifting geographies and institutional structures of migrant incarceration across the span of the twentieth century. By the 1920s, county jails held increasing numbers of Canadian and European migrants, including women and children. Local communities showed few qualms about subjecting racialized others to substandard conditions, but the specter of white women and children in such facilities prompted calls for reform. These debates played a substantial role, Nofil shows, in the establishment of the federal Bureau of Prisons in 1930.
The county jail temporarily recedes to the periphery in the middle chapters of The Migrant’s Jail, as the book turns to the expansion of federal facilities in the 1930s and ‘40s, the unprecedented scale of the detention of Japanese nationals as “enemy aliens” during World War II, the detention of suspected subversives at federal facilities such as Ellis Island in the postwar years, and the supposed decline of immigration detention with the passage of the McCarren-Walter Act in 1952. Nofil argues, however, that detention was far from over, and that “the immigration service never fully broke its bond with local jails.” (P. 85.) At the same time that the government was shutting down Ellis Island and beginning to release many European migrants on bond, it was also launching “Operation Wetback,” a massive enforcement campaign against Mexican migrants in the Southwest that depended on hundreds of county jails as well as newly constructed federal facilities.
The expansion of federal facilities in the Southwest, Nofil argues, “signaled that the federal government was ready to make serious investments in a permanent system of migrant incarceration.” (P. 117.) The Migrant’s Jail traces both the growth of these investments and the continuing salience of the county jail through the latter half of the twentieth century and into the twenty-first. Against the backdrop of the expansion of federal facilities and the advent of private prisons, Nofil’s focus remains on local cooperation and the flexibility that it offered the federal government.
Across these various contexts, Nofil documents the ways in which jails have long functioned as a “space that produced and confirmed racial difference.” (P. 30.) Detention, Nofil argues, has been most politically popular when it has targeted “people deemed racially unassimilable or unfit for citizenship – people whom many Americans imagined might belong in jail.” (P. 10.) In seeking local cooperation, the federal government has relied not only on offering financial incentives but also on promoting the idea of “unauthorized migration as an existential, racialized threat that demanded the assistance and resources of localities.” (P. 6.)
The Migrant’s Jail also shows, however, that this racialized, carceral logic has not gone uncontested. Drawing on an impressive range of sources, Nofil paints a vivid picture not only of the suffering and isolation that migrants experienced in custody, but also of the many acts of resistance, both large and small, that took place. County jails were “sites of coercion and neglect” but also “sites where migrants lodged legal claims, plotted escapes, organized with aid groups, and fought for the right to stay in the United States.” (P. 2.) Residents of cities and towns across the country have spoken out against contracts with federal immigration authorities and against federal detention facilities being situated in their communities. Immigrants’ rights groups have organized to protect detainees and have pursued sophisticated litigation strategies.
In telling this story, The Migrant’s Jail argues for a reconceptualization of the relationship between immigration enforcement and the criminal legal system. Crimmigration law scholars have written extensively about the importation of criminal law norms into the ostensibly civil realm of immigration law. Nofil argues that ideas traveled in both directions: “[I] immigration enforcement did not merely borrow the infrastructure, legal precedents, and practices of late twentieth-century criminal punishment. Instead, in countless small towns, suburbs, and cities, migrant incarceration activity expanded the power and capacity of local, state, and federal governments to imprison.” (P. 4.) Throughout the book, Nofil documents the emergence of an “interconnected carceral state.”
The Migrant’s Jail also offers a new perspective on immigration federalism. It is widely recognized that the power to restrict immigration shifted from state and local authorities to the federal government in the wake of the Civil War, and some have viewed recent attempts by states to reclaim some of this power as an attempt to turn back the clock. Nofil argues, however, that the post-Civil War shift was not as clear cut as it has been made out to be and that the detention of migrants in county jails in the early twentieth century returned some of the power to local communities, in ways that worked both for and against the interests of migrants: “Reliance on localities enabled unprecedented, large-scale deportations in some moments and incapacitated the immigration service in others.” (P. 13.)
The Migrant’s Jail is a welcome addition to recent scholarship on the history of immigration detention by scholars such as Kelly Lytle Hernández, Kristina Shull, Elliott Young, Jessica Ordaz, Ana Raquel Minian, and Carl Lindskoog. This growing body of work offers crucial insights that should inform the work of crimmigration law scholars.
Mar 18, 2025 Aila HossNative Peoples Law
Nothing ruins my appetite for research and commentary on elections and politicians more than a presidential election. Civic duty and guilt keep me engaged, albeit begrudgingly. So, when my initial intrigue in picking up Professor Elizabeth Reese’s recent article, Tribal Representation, and Assimilative Colonialism, turned into captivation, I knew this piece was something I had to share.
Tribes have been exercising their authority as sovereign nations since time immemorial. Tribal sovereignty is an inherent authority that originates from a social contract between a government and its citizens. It predates the United States and colonial governments. Although colonization and genocide diminished Indigenous populations and impeded Tribal governments, Tribes persisted. Today, Tribes occupy a unique status in the United States. They maintain their nationhood while being part of the American family of governments—federal, state, local, and territorial.
The United States recognizes the sovereignty of 574 Tribal nations, each with distinct governing authority over their land and people. Tribes control over 100 million acres of land, a little over half as part of reservation and trust lands. Nearly 10 million people identify as American Indian or Alaska Native, although not all are Tribal citizens. Some Tribes have land bases and populations that are comparable to smaller states. American Indian and Alaska Native people are the most heavily regulated group under federal law.
And, yet, as Professor Reese astutely observes, there are no Indian states nor Tribal representation in the federal legislature. This article examines why this is the case. She also considers mechanisms for formal representation of Tribes within American democracy.
The article is elegant in its organization, with three discrete sections that build off one another. Section I outlines the long and racist history of the disenfranchisement of Native people in democratic processes. Native people were considered “uncivilized” and “savage.” Minority enfranchisement, it was said, would also threaten the political power of white majorities. Native people were not afforded U.S. citizenship until the passage of the Indian Citizenship Act of 1924.
Section I also chronicles the history of failed proposals for Native statehood. In the first treaty between the newly formed United States and a Tribal nation, the Treaty with the Delawares, 1778, a provision contemplated the Delaware Nation’s future membership in the confederation and representation in Congress. However, this never came to pass.
Two additional proposals concerned lands west of the Mississippi, an area later known as Indian Territory, where several Tribes would be relocated to following forced removal. Orchestrated by President Andrew Jackson in 1834, Congress introduced legislation establishing this land as a territory that would eventually be admitted as a state. The legislation was met with staunch opposition and failed. Another proposal involving converted Indian Territory into the State of Sequoyah. The Five Tribes with reservations in this area–Cherokee, Choctaw, Chickasaw, Seminole, and Muscogee–supported the proposal. Legislation in both the House and Senate failed.
Efforts to secure Tribal delegates to Congress have also been unsuccessful. The Treaty of New Echota, 1835, between the United States and the Cherokee Nation provides a Tribal delegate in the House of Representatives “whenever Congress shall make provision for the same.” Congress has not made such a provision despite calls from the Cherokee Nation to do so. Congressional legislation provided for Congressional delegates from the Five Tribes in Indian Territory. These, too, failed.
Professor Reese coins the term “assimilative colonialism” to describe this systemic exclusion of Tribal governments in US representative democracy. She defines it as “the practice of offering American political power–whether citizenship, the right to vote, or the possibility of statehood–only on terms of racial, cultural, or political erasure.”
In Section II, the article describes the status quo for Native participation in electoral politics today. Despite increased representation of Native people in government and Tribal successes in lobbying, Native people continue to be disenfranchised. Native and Tribal representation is particularly insufficient at the federal level, where Congress exercises plenary power, the ability to legislate over all matters concerning Tribes and Native people. Plenary power can and has been used to abrogate treaty rights, infringe on Tribal sovereignty, and limit Indigenous civil and human rights.
The status quo is insufficient to support Tribal and Indigenous interests in American political systems meaningfully, the article concludes. So, Section III considers “representative remedies” to better align Tribal representation in American democracy. It asks the reader to “open your imagination to alternatives to the status quo,” which would require significant structural changes to our political institutions. The article uses variations of the term “imagine” over ten times. I heeded the request in the context of the models considered in the article and some that were not.
I imagined what Tribal statehood could look like today and considered if such a model could exist without undermining Tribal nationhood. I imagined not only a Cherokee delegate in the House but hundreds of Tribal delegates, even voting ones! Even in the Senate! I couldn’t stop there. I brought back treatymaking. I imagined rewriting entire swaths of the Constitution, salivated at the thought of overruling problematic Indian law decisions from the Supreme Court, and drafted a dozen bills in my head.
My musings might not be what Professor Reese had in mind in her request for the reader to use their imagination. But her call for creativity in legal reform was refreshing. So much of legal scholarship, including my own, is anchored in pragmatism and incrementalism. Here’s to hoping Professor Reese’s excellent article encourages the legal academy to be more ambitious in future work.
Feb 17, 2025 Betsy FisherImmigration
When is a citizen stateless? This is not a children’s joke with a clever punchline; living with an entitlement to but without recognition as a citizen is the lived experience of untold numbers of people globally. It is also a matter of scholarly debate: are such individuals, entitled to nationality but unrecognized by their state, stateless? Or are they merely de facto stateless? Some have argued that such individuals are stateless, and that the term de facto statelessness is unhelpful. These scholars can point to the international definition of statelessness as someone ‘not considered as a national by any State under the operation of its law.’ The argument goes, if someone is entitled to nationality, but not considered as a national, they are stateless, full stop. Others point to the 1954 Convention’s failure to protect de facto stateless people as proof of its inadequacy to protect people without state protection.
Ghost Citizens joins this conversation, noting Prof. Jamie Chai Yun Liew’s view ‘that the legal fact of being conferred citizenship is important. As such, persons should be considered stateless until they are legally recognized as a citizen.’ But her monograph pushes further, arguing that we must also explore why the state determines who is a citizen to start with. Here, she joins the theoretical contributions arguing that genuine links to a state should establish a stateless person’s claim to citizenship.
Ghost Citizens focuses on the legal system and experiences of stateless people in Malaysia, but the volume understands that its lessons apply more broadly. Liew mentions that many of the book’s lessons would apply in other postcolonial states, and she also sees resonances from Canada, where she practices law. Indeed, the experiences of stateless people that she recounts strongly resemble the experiences of stateless people in the United States, which shares a fractured system with limited protections for stateless people and an emphasis on officials’ discretion.
Liew’s many talents as a lawyer, academic, storyteller, and interviewer are on display in this slim but rich and interdisciplinary book. Rooting the book in her family’s own experiences with statelessness, Liew engages with political and sociolegal theory; analyzes Malaysia’s legal system; and presents the personal experiences of stateless people, lawyers, and NGO representatives based on her ethnographic research.
The strength of this book lies both in its exploration of sociolegal theory as well as its meticulous evidence drawn from legal and ethnographic research with stateless individuals and advocates in Malaysia. Ghost Citizens offers a well-developed case study and provides a model framework for documenting and learning from stateless individuals and advocates. The volume expands the literature about the intersectionality of statelessness with gender discrimination, racial discrimination, and birth registration. It also further develops scholarship on statelessness in situ, offering an important caution against assuming the foreignness of stateless individuals and appropriateness of stateless determination procedures in all situations.
Finally, Liew’s concept of a ‘ghost citizen’ is an important theoretical contribution to the ongoing scholarly conversation on concepts of belonging and the right to nationality. Liew convincingly argues that we ought not to overly trust states, which are the primary obstacles for many stateless people in obtaining recognition as nationals, and that we should seek to move beyond state recognition of citizenship.
While attracted to Ayelet Shachar’s notion of jus nexi, Liew argues that theories of citizenship ought not to be separated from the experiences of stateless people. From her research and discussions with stateless people, she demonstrates that we should value any means by which states will recognize citizenship. She briefly introduces the concept of kinship as a possible basis to expand the concept of jus nexi, though this concept could use further development in future work.
Yet, this brings about a catch-22: Ghost Citizens argues that stateless people in situ ought to be able to gain citizenship based on their deep, social ties rather than through the state – but citizenship without state recognition is, simply stated, statelessness. State recognition as a citizen is essential to a stateless person not because states ought as a normative matter have the prerogative to decide who is a citizen, but because the state also decides who can access government services that make citizenship valuable. States are becoming more, not less, involved in determining who can access necessities like identification, healthcare, and education — and who can avoid criminalization and arbitrary detention.
Ghost Citizen, with its engaging style and insights, leaves one hoping that Liew will further develop the concept of kinship and the tension between social ties and the importance of state recognition in nationality. But Liew need not resolve this paradox; her call for citizenship based on genuine and effective links in no way conflicts with other strategies such as advocating with the state for recognition of individual’s claims to citizenship and pressing for broader inclusion of and access to services for noncitizens.
Jan 20, 2025 Tom SimmonsElder Law
Sharona Hoffman & Cassandra Burke Robertson,
Patient Autonomy, Public Safety, and Drivers with Cognitive Decline, 15
UC Irvine L. Rev. __ (forthcoming, 2025), available at
SSRN (2024).
Sadly, age and cognitive decline often go hand in hand. Approximately one in ten Americans over the age of 65 have dementia. As much as half of individuals with dementia still drive. The statistics on how many additional accidents occur as a result are somewhat murky. Some studies reveal twofold increases in risk of car crashes. But one study actually revealed lower risks among drivers with dementia possibly because that set of persons reduces their driving frequency so much relative to the non-dementia set that the occurrence of accidents drops despite the greater risks associated with cognitive impairments (and also because not everyone with dementia is incapable of driving safely). Still, no one doubts that the risks of driving with dementia are real, yet the law has had very little to say about the matter.
In Patient Autonomy, Public Safety, and Drivers with Cognitive Decline, Professors Hoffman and Robertson assess the predicament of drivers with cognitive impairments. Even individuals with only mild dementia are about ten times more likely to fail an on-the-road driving test than comparators without dementia. Currently, however, only one state requires road re-testing for all drivers above a certain age (75 and above, in Illinois). Simply renewing a driver’s license in-person is too anemic. Across-the-board mandatory road re-testing is too costly. A more thoughtful solution has thus far been elusory, but Hoffman and Robertson articulate and defend a multifaceted framework of enhanced protocols which is both compelling and thought-provoking.
The solution to roads filled with too many drivers with dementia, they explain, may lie in imposing responsibility among stakeholders and encouraging interventions by medical providers. Previous proposed solutions have relied too heavily on a single point of responsibility (whether it be the DMV, the primary treating physician, or family members). Interestingly, the tort system has already provided some degree of relief in the form of potential liability for family members and doctors who fail to intervene. While caretaker liability scares might move the needle a bit, a more comprehensive framework is more likely to significantly curtail crashes caused by cognitively compromised drivers.
Interestingly, the authors also explicate the precise nature of how cognitive impairments affect one’s driving abilities. “This is because driving requires a multitude of cognitive abilities” (P. 6.) First, there is working memory capacity, which involves the retention and manipulation of short-term events. Second, there is time-sharing ability which permits one to perform several tasks simultaneously, rapidly switching attention from one to another. Spatial skills allow a driver to monitor objects such as pedestrians and obstacles and locate them in relation to the driver by using forward vision, side vision, and – in the case of driving, in particular – those pesky rear-facing mirrors. Finally, a driver must blend all these cognitive operations together while abiding by a small constellation of rules of the road and adhering to the goal that will enable her to ultimately arrive at her destination. Toss in verbal commands from a smart phone and distracting conversations from a passenger and even experienced non-impaired drivers must fully engage different areas of their brains to avoid mishaps on the highway.
It shouldn’t be surprising, then, that a number of popular cognitive tests fail to evaluate the particular skills required for driving or their multifaceted combinations. One helpful cognitive test, for example, involves drawing the hands of a clock to reflect a particular time of the day. Others assess verbal cues and word recall. Just because a cognitive test proves to be a helpful diagnostic tool does not mean that it has anything to say about the individual’s ability to drive a car. The precise contours of any given individual’s cognitive decline must be assessed across multiple dimensions. Some of the more appropriate tests, the authors emphasize, are time-consuming and impractical. Still, primary care physicians are at the front-line of the problem and are better equipped to at least refer a patient for further driving assessments, if they could be properly incentivized to do so.
The problem of drivers with dementia is further exacerbated by the cultural/regulatory landscape of our extremely car-centric way of life, especially in low population density areas of the country with few options for mass transit. The authors convincingly demonstrate how the law not only fails to ameliorate the public safety hazard of drivers with cognitive impairments, but actually works to enhance Americans’ dependence on automobile transportation. Citing Gregory Shill and Jesse Singer, they explain how “the legal system isn’t merely responding to personal preference for automobile travel or allocating responsibility for traffic harms caused by individuals – instead, our law and policy create the very context in which those preferences and harms arise” (P. 20.)
Hoffman and Robertson’s full set of recommended protocols – which would involve doctors as well as law enforcement officers, insurance companies, families, and DMVs – cannot be fairly summarized in a jot. For that, a careful study of their readable, lively article is highly recommended.
Cite as: Tom Simmons,
Miss Daisy – Driving?, JOTWELL
(January 20, 2025) (reviewing Sharona Hoffman & Cassandra Burke Robertson,
Patient Autonomy, Public Safety, and Drivers with Cognitive Decline, 15
UC Irvine L. Rev. __ (forthcoming, 2025), available at SSRN (2024)),
https://lex.jotwell.com/miss-daisy-driving/.
Dec 2, 2024 Eric BiberEnvironmental Law
- Heather Payne, Reliance and Reliability, UC Irvine L. Rev. (forthcoming), available at SSRN (January 30, 2024).
- Joshua Macey, Shelley Welton, & Hannah Wiseman, Grid Reliability in the Electric Era 41 Yale J. on Reg. 163 (2024).
Electricity is at the center of decarbonization and climate change policy. With the rise of renewable energy, we have made the most progress in decarbonizing the electricity sector. The primary approach for decarbonizing transportation and buildings is to electrify vehicles, space and water heating, appliances, and cooking. But the race to move more and more of our activities to a clean electric grid also means that the electric grid is all the more important to our day-to-day lives. A power outage today can thus have much more of an impact – not just darkness, but also interruption of communications (by shutting down internet access), the ability to cook and stay warm, and the ability to move to a place with electricity service.
Yet, climate change is increasing the challenges of maintaining a reliable electric grid. Climate change raises the probability and severity of extreme weather events – such as heat waves – that can stress electric grids and heighten the risks of power outages. Moreover, more intermittent renewable energy on the grid itself can pose challenges to grid reliability. Consumers who are concerned about the reliability of the grid may be wary of increasing their reliance on electricity for home appliances and heating. Reliability is therefore a central issue for decarbonization. It is thus heartening to see two recent pieces of legal scholarship that highlight the issue, beginning the process of thinking about how to make progress on reliability as we move towards decarbonization. There are both federal and state-level angles to thinking about reliability, and both are important. Macey, Welton, and Wiseman focus on the federal aspects in their article, while Payne focuses on the state aspects in her article.
Both pieces highlight how current incentives in federal and state law do not encourage incumbent utilities to effectively address reliability issues. The dominant player at the federal level in addressing reliability is the North American Electric Reliability Corporation (NERC) – a non-profit that under federal law has broad powers to set standards for the reliability of the electric grid. However, as the authors note, NERC is primarily controlled by the incumbent electricity utilities, who have most of the voting power in NERC decision-making. The authors make a strong, circumstantial argument that utility dominance of NERC has meant that the NERC standards have not adequately addressed how to ensure the reliability of the electric grid given the increase in renewable energy or the increased likelihood of extreme weather events, and that NERC has disproportionately focused on relying on traditional baseline electricity power plants, such as coal and natural gas, to advance reliability.
At the state level, Payne describes how state public utility commissions and the incumbent utilities they regulate play a key role in determining whether utilities provide adequately reliable service to their customers. Payne makes a persuasive case that state regulators and utilities have been using outdated measures of reliability – measures that focus on average performance, and ignore the extreme outages that can result in some customers living without electricity for extended periods of time. As Payne notes, these extended losses may be particularly damaging to customers, and may disproportionately affect those with fewer resources.
Payne also explains how the traditional rate-making process by many state public utility commissions encourages utilities to invest in large-scale capital projects, like hardening transmission and distribution infrastructure, because the utilities can pass those costs (and associated profits) on to ratepayers. While Payne notes that these investments can provide reliability benefits, she argues that utilities are not incentivized to consider other, potentially cheaper, and more effective options for reliability, such as supporting microgrids and customer energy storage.
These two pieces provide valuable contributions to the scholarly literature by highlighting the importance of reliability in energy and climate change policy, and also by identifying important ways in which our current system is falling short in addressing the problem. As always, identifying solutions is in many ways more difficult than diagnosis, but both pieces at least help us start thinking about possible solutions.
Macey, Welton, and Wiseman propose exploring reforms at NERC that would reduce utility power, or the possibility of greater control over reliability by a publicly accountable government agency, the Federal Energy Regulatory Commission. Payne suggests using different metrics to measure reliability that would provide greater weight for extreme events and long-term outages and raise the possibility of utility liability to customers for damages from outages. All of these suggestions are helpful, though the authors also note significant political feasibility constraints for these options. There is more work to do in the area of reliability, including the role of increased baseload generation from sources such as nuclear and geothermal, but these pieces are an excellent start to a necessary conversation.
Eric Biber,
The Importance of Reliability in an Age of Electrification (December 5, 2024) (reviewing Heather Payne,
Reliance and Reliability,
UC Irvine L. Rev. (forthcoming), available at
SSRN (January 30, 2024); Joshua Macey, Shelley Welton, & Hannah Wiseman,
Grid Reliability in the Electric Era, 41 Yale J. on Reg. 163 (2024)), https://lex.jotwell.com/the-importance-of-reliability-in-an-age-of-electrification/.
