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Long-Term Residence as Evidence of De Facto Membership

Shoba Sivaprasad Wadhia, Americans In Waiting: Finding Solutions for Long Term Residents, 46 Notre Dame J. Leg. 29 (2019).

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.” 1

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.

  1. Mae M. Ngai, Impossible Subjects: Illegal Aliens And The Making Of Modern America 59 (2004).
Cite as: Angela Banks, Long-Term Residence as Evidence of De Facto Membership, JOTWELL (May 21, 2020) (reviewing Shoba Sivaprasad Wadhia, Americans In Waiting: Finding Solutions for Long Term Residents, 46 Notre Dame J. Leg. 29 (2019)),

Wrongful Gains from Data Breaches

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.

Cite as: Caprice Roberts, Wrongful Gains from Data Breaches, JOTWELL (April 21, 2020) (reviewing Bernard Chao, Privacy Losses as Wrongful Gains, (forthcoming), available at SSRN),

Watch This Space: AI at the Border

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)),

The High Cost of Exclusionary Zoning

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.

Cite as: Eric Biber, The High Cost of Exclusionary Zoning, JOTWELL (February 26, 2020) (reviewing Robert C Ellickson, Zoning and the Cost of Housing: Evidence from Silicon Valley, Greater New Haven, and Greater Austin, available at SSRN),

Rethinking Uniformity in Statutory Interpretation

Ryan Doerfler, Can a Statute Have More Than One Meaning?, 94 N.Y.U. L. Rev. 213 (2019).

It is a persistent theme in statutory interpretation theory—one shared by textualists, purposivists, and intentionalists alike—that a statutory term must have the same meaning from case to case and from litigant to litigant. The word “knowingly” in the same statute cannot mean one thing as applied to Sally and another as to Jim. To hold otherwise, courts and scholars have agreed, would violate fundamental principles of fairness and stability and upend the rule of law. Yet in a provocative and compelling new article, Can a Statute Have More Than One Meaning?, Ryan Doerfler makes a convincing case for rethinking this conventional view and contemplating just such variability of meaning.

Like all of Doerfler’s work, the article is incredibly smart and forces one to think about statutory interpretation in a fresh and unorthodox manner. Building on the linguistic observation that speakers can and often do communicate different things to different audiences using the same words or written text, the article argues that there is no reason to assume that Congress does not do the same—and several reasons to assume that it does.

Doerfler begins by using examples of familiar real world speech and written text to make the point that, linguistically, it is quite common for speakers and authors to communicate different things to different audiences using the same words. In so doing, Doerfler draws from linguistic theory and concepts such as “indexicals”1 but manages to do so in a manner that is accessible to non-linguists. The article then turns to making the case that Congress regularly employs terms—e.g., gradable adjectives such as “dangerous,” “serious,” or “significant”—that acquire meaning only in context, and argues that it makes sense to suppose that Congress would want such context-sensitive language to be interpreted differently across importantly differing contexts.

Ultimately, the article suggests a handful of applications in which its insights about the fallacy of presuming that all statutory terms have one meaning in all situations could have important implications. First, Doerfler points out that Congress deliberately has chosen to give some statutory provisions, such as the Immigration and Nationality Act (INA), both civil and criminal consequences and suggests that such statutes perhaps should be interpreted differently depending on whether the application at issue is civil or criminal. Specifically, he notes that the procedural and interpretive norms that govern criminal cases are much more forgiving to defendants than are those that govern civil cases, and suggests that canons such as the rule of lenity2 should apply when the provision at issue is being interpreted in a criminal context but not applied to the same statute when it is being interpreted in a civil context. That is, criminal defendants should receive the benefit of the doubt in marginal applications where the statute’s scope is ambiguous, but in civil cases, courts could resolve the same statutory ambiguities using other traditional tools of construction or, where appropriate, by deferring to an administrative agency’s construction of the provision.

Second, Doerfler observes that Congress often gives multiple administrative agencies authority to administer the same statutory provision—and that different agencies sometimes interpret that shared provision differently. He argues that at least in certain circumstances, such as where each agency has mutually exclusive authority over separate sets of regulated persons, Congress should afford Chevron deference to each agency’s individual interpretation of the provision, even where those interpretations differ.

I find Doerfler’s argument particularly compelling in the administrative law context. It makes logical sense that Congress could intend that different agencies be able to interpret differently the provisions they jointly administer with respect to the individual entities they independently regulate. That is, it is at least plausible that Congress may wish to allow the Federal Trade Commission to interpret a statutory term differently as applied to the companies it regulates than the Federal Communications Commission does as applied to media companies or than the Securities and Exchange Commission does as applied to securities brokers. Doerfler also argues that that it may make sense for Congress to have intended—and for courts to uphold—differing agency interpretations of “generic” statutes such as the Administrative Procedure Act (APA) or the Freedom of Information Act (FOIA) as applied to the unique proceedings conducted by each agency. That is, to defer to the SEC’s interpretation of the APA’s adjudication provisions for SEC proceedings, the NLRB’s (National Labor Relations Board) interpretation of those same adjudication provisions for NLRB proceedings, and so on.

In the end, Doerfler largely convinces me that scholars and courts should at least consider whether certain statutory provisions should be interpreted differently as applied to different audiences and in different contexts. His article also raises the important follow-on question: Why do courts persist with the one-meaning rule in this and other contexts (e.g., the whole act rule3 despite evidence that such rules may not accurately reflect congressional intent or legislative drafting realities? It may simply be that irrespective of congressional practice or intent, courts view it as part of their role to impose coherence on the law externally. That is, they may view it as their job, when Congress gives a statute a vague meaning, to step in and give it a settled, fixed one—i.e., to pick the best reading themselves and hold Congress to that meaning going forward. In other words, courts may see themselves as the instruments, or even imposers, of stability and coherence in the law. If so, Doerfler’s article rightly pushes them to reconsider whether stability and coherence necessarily must equate with uniformity.

  1. See, e.g., Andy Egan, Billboards, Bombs, and Shotgun Weddings, 166 Synthese 251 (2009) (analyzing cases in which a single verbalization or written text communicates different content to different audiences); Stefano Predelli, I Am Not Here Now, 58 Analysis 107 (1998) (same); Alan Sidelle, The Answering Machine Paradox, 21 Canadian J. Phil. 525 (1991) (same).
  2. The rule of lenity is an interpretive canon that requires ambiguous criminal statutes to be interpreted in favor of the defendant. See, e.g., Norman J. Singer & J.D. Shambie Singer, 3 Statutes and Statutory Construction § 59:3 at 167-75 (Thomson Reuters/West 7th ed 2008); United States v. Santos, 128 S.Ct. 2020, 2025 (2008). It is based on a due process concern that only clearly stated laws can justify significant deprivations of liberty. See, e.g., McBoyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.) (“[I]t is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.”); see also William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. Pa. L. Rev. 1007, 1029 (1989) (“The rule of lenity rests upon the due process value that government should not punish people who have no reasonable notice that their activities are criminally culpable.”).
  3. The whole act rule presumes that each provision of a statute should be interpreted consistently with other provisions within the same statute, including an assumption that the same word should be given the same meaning throughout a single statute. William N. Eskridge, Jr., et. al, Cases and Materials on Legislation: Statutes and the Creation Of Public Policy 862-65 (2007). The whole act rule recently has come under serious empirical critique as a matter of legislative process reality. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 954-55 (2013). And yet, it endures and remains popular with courts. See, e.g., Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L. J. __ (forthcoming 2020) (Tables 1 & 2) (reporting frequency with which members of the Roberts Court invoked the whole act rule in cases decided between 2006 and 2018).
Cite as: Anita Krishnakumar, Rethinking Uniformity in Statutory Interpretation, JOTWELL (January 22, 2020) (reviewing Ryan Doerfler, Can a Statute Have More Than One Meaning?, 94 N.Y.U. L. Rev. 213 (2019)),

Creatively Searching for Fairness

Fatma Marouf, Invoking Common Law Defenses in Immigration Cases, 66 UCLA L. Rev. 142 (2019).

Immigration lawyers search for ways to squeeze fairness out of a system that bristles at the concept. Professor Marouf’s article, Invoking Common Law Defenses in Immigration Cases, is a wonderful contribution to this immigration law tradition of creatively searching for fairness in the system. The harshness of immigration law creates the need for Professor Marouf’s contribution. The value of her contribution stems not only from her creative approach, but because her efforts serve as a reminder that immigration law desperately needs reform to become fair.

Professor Marouf is driven to explore the applicability of common law defenses in immigration cases precisely because immigration law is not fair. If consequences were proportional, if more robust relief from removal were available, or if the grounds of removal were not so broad, there would be less of a need for creative approaches such as Professor Marouf’s. As Professor Marouf states in her article, “all possible defenses must be explored.”

Immigration law is harsh. The grounds for removal (deportation) are broad and often no statute of limitations applies. The law fails to incorporate proportionality. There is a one-size-fits-all punishment associated with a variety of immigration violations: removal. There is no graduated system of consequences. Also, equities play a very small role in immigration law. Even the existence of a close US citizen relative, such as a spouse or child, cannot, on its own, cancel removal. The law demands a showing of exceptional and extremely unusual hardship to the US citizen relative. Hardship caused by separation alone is not enough.

Additionally, immigration law’s progression has been stunted by a reluctance to recognize rights accepted in other contexts. For example, the Supreme Court has given Congress and the President wide constitutional latitude in immigration law based on the perception that immigration law is somehow different from other areas of law. The grounds for removal are broad, removal is the ubiquitous punishment, relief from removal is hard to obtain, and policy choices about immigration receive little judicial supervision.

Immigration lawyers try to blunt the force of an unfair system. For example, because there is so little statutory relief from removal, immigration attorneys may seek out prosecutorial discretion for a client. If the government does not begin removal proceedings, then the client can avoid the harsh statutory results. Adjudicating ad hoc requests for prosecutorial discretion is not transparent, however, and reliance on prosecutorial discretion will be fruitless during a presidential administration that refuses to be discretionary in its prosecution. In her article, Professor Marouf contributes to this ongoing effort to ease the harshness of immigration law by exploring how common law defenses might apply in immigration law. Specifically, she looks at necessity, self-defense, duress, lack of capacity (infancy and insanity), entrapment by estoppel, equitable estoppel and laches. Professor Marouf persuasively argues that these common law defenses have a role to play in civil immigration law. She asks why these defenses, which certainly are not novel in other areas of law, have not taken more root in immigration law.

According to Professor Marouf, there are two main scenarios where common law defenses should be considered in immigration cases. The first is where the Immigration and Nationality Act attaches immigration consequences to unlawful conduct without requiring that conduct to be adjudicated unlawful by any court. The statute calls on civil immigration adjudicators to judge the lawfulness of acts within the civil immigration proceeding. Professor Marouf argues that civil immigration adjudicators should consider common law defenses to determine whether the conduct was, in fact, unlawful. For example, some behavior bars a person from receiving asylum. If a common law defense applies, then a bar to asylum is not appropriate. The second category includes situations where the Immigration and Nationality Act provides for no mens rea requirement. One of Professor Marouf’s examples is the provision rendering an individual removable if he or she made a false claim to citizenship. Could infancy be raised as a defense?

Professor Marouf also argues that if and when common law defenses are incorporated in immigration law, it should be done in a transparent way. She argues that the agency appellate body, the Board of Immigration Appeals, should establish explicit standards “for establishing common law defenses in removal proceedings.” Here, Professor Marouf reminds us of another major problem facing immigration law, that immigration law can be very opaque. Finding (or forcing) fairness into the system often involves a case by case approach where lawyers rely on novel theories or obscure internal agency documents. As Professor Marouf points out, there has to be a better way.

I wonder, though, if Professor Marouf is looking to the best source to make her goals a reality. I question whether the Board of Immigration Appeals is the best place to look for an ally in transparently establishing the use of common law defenses in removal cases. The Board has never been independent (its adjudicators are mere employees of the Department of Justice), and its independence is even further squeezed in the Trump Administration. Also, President Trump’s Attorneys General have enthusiastically embraced their power to certify Board decisions to themselves to overrule Board precedent. Therefore, even if the Board of Immigration Appeals did establish the use of common law defenses in immigration cases, that precedent could be easily overruled by the attorney general.

Perhaps a two-pronged approach is best. Push for the Board to recognize common law defenses, but also work towards statutory reform. Congress must act. Reform of the Immigration and Nationality Act should include narrowing the grounds of removal, creating consequences other than removal, and allowing adjudicators to consider equities to cancel removal. With statutory reform, immigration attorneys will not need to spend as much time creatively searching for fairness.

Cite as: Jill Family, Creatively Searching for Fairness, JOTWELL (December 10, 2019) (reviewing Fatma Marouf, Invoking Common Law Defenses in Immigration Cases, 66 UCLA L. Rev. 142 (2019)),

Crowd-Sourcing Decolonization

Tendaye Achiume, Migration As Decolonization, 71 Stan. L. Rev. 1509 (2019).

At last—an article that squarely confronts the unquestioned authority of nation states to exclude economic migrants, and that moves the discussion beyond the red cape of open borders. Tendayi Achiume deconstructs the stone foundations of sovereignty in her ambitious and thought-provoking article, Migration as Decolonization.

Above the fever pitch of international debate surrounding global migration, one truth seems unassailable: that it is the prerogative of the sovereign state to exclude economic migrants. Faced with this unbreachable barrier, the battle around immigration moves elsewhere, pitched instead around how broadly to define the categories of those privileged to cross international borders—which citizens, residents, workers, humanitarian refuge-seekers, among others. Separated from the sound and fury of this debate is a silence around when purely economic migrants—“those who enter the territory of a foreign state in order to pursue better life outcomes”—have any legal claim to cross borders.

Achiume’s thesis is that the process of decolonization, which is ensnared in inequitable neocolonial relationships, must continue through the right of individual self-determination through economic migration. This right has boundaries. It belongs to individuals from nations subjected to the inequity-producing rules and institutions of colonization, who seek to better themselves within nations that hold “colonial advantage” over the country from which the individual originates. The journey to this conclusion takes three moves.

The first move is to reconceptualize traditional notions about sovereignty. Exclusion of economic migrants has long been sanctified as a sovereign power. Sovereign power to exclude makes sense when those excluded are political strangers. In the absence of some higher humanitarian reason to admit the stranger, there is no obligation under domestic or international law for a nation state to open the door. This framework narrows arguments for new legal pathways to admission for the political stranger other than expansion of established but exceptional criteria for admission, such as refugee status.

The article invites us to view the relationship between the nation state and the self-determining individual in a different framework, one that calls into question these accepted notions of the independent sovereign and the power to exclude. It turns to the history of colonization to shed light on the perseverance of legal and political institutions that maintain longstanding interconnections among colonized and colonizing nations and peoples.

This history highlights two related aspects of colonization. First, both law and migration were necessary elements in establishing what Achiume calls “colonial advantage,” defined as “the economic and political dominance of colonial powers at the expense of colonies” during colonization. (Pp. 1535-36.) Achiume posits that “reaping the full benefits of colonial expansion required specific transnational arrangements and distribution of labor and managerial personnel.” (P. 1538.)

The article describes how law served as the chassis for colonial advantage, based on layers of international and bilateral law among European nations, and agreements involving European private corporations legitimized by colonial law. Colonial migration was the means of exerting colonial power, riding on this legal and contractual chassis. This was no small stream of migrants. Between the 19th century and the first half of the 20th, the European colonial project enabled the emigration of approximately 62 million Europeans to colonies across the world. Achiume posits that these Europeans were the original economic migrants, that colonial migration was in fact a fundamental technology for the success of the enterprise. When Europeans “travelled out to the non-European world they traversed it and appropriated it relying on justifications that First World states now use to militarize their borders against today’s economic migrants.” (P. 1537.)

The result of the European colonial project, through law and migration, was to bring European and colonial peoples together as a transnational political community in a form that benefited Europeans politically and economically at the expense of the colonized subjects. These political communities did not evaporate upon independence. They continue to shape relationships between colonizing and formerly colonized communities. They are “politically interconnected in messy, complex ways determined significantly by historical imperial projects and their legacies.” (P. 1533.)

The shift to independence of colonized communities opened the way for former colonizing nations to exclude economic migrants from former colonies based on the justification that the two nations were now independent sovereigns. Social contract theory “locates the formation of political community in the putative mutual consent of individuals to live under common subjection to a shared government.” (P. 1547.) This meant that once those governments parted ways, the former colonial subjects were formally excluded from the political community and had no claim to physical inclusion.

Achiume contests this theory, outlining instead a de facto political community arising from the subjugation of colonized peoples:

[T]he posited political community (neocolonial empire), distinctively encompasses members whose induction into the community was decidedly coerced. This recalls the particular harm of colonialism…which is that it forged former colonizing and colonized peoples into a political association or community in which the latter were subordinate to the former, notwithstanding the full and equal personhood of Third World individuals. The failure of formal decolonization maintains the political association between Third and First World in a de facto political community of de facto co-sovereigns mutually instrumental to the prosperity of neocolonial empire, and mutually subjugated by the effective collective sovereigns of neocolonial empire: First World nation-states. (P. 1547.)

Decolonization did not erase colonial relationships founded on subjugation, as illustrated by the continuance after independence of property ownership established during colonial rule. International instruments and organizations affirmed the international and domestic legal structures that maintained those rules, creating quasi-sovereignty. As Achiume explains, “Modern international law—including the UN Charter itself—preserved colonial advantage for colonizing powers even as it professed the formal political independence of former colonies and the equality of all sovereign states, including these former colonies.” (P. 1543.) Legal doctrines that preserved this advantage included international rules that prevented and continue to prevent reparation or remediation of systems that sustained colonial-era exploitation of national resources in colonized nations, including “protecting the property rights of colonial minorities who had secured these rights through the colonial subordination and massacre of Africans.” (P. 1545.)

The sovereignty doctrine itself, the article posits, is chief among these sustaining neocolonial international legal doctrines. The result is quasi-sovereignty, pairing “Third World formal national political independence with Third World structural political and economic subordination to First World nation-states and the post-World War I international economic and financial institutions dominated by the latter.” This is an informal empire, one in which formerly colonized nations remain subordinate to First World nations.

Having redefined sovereignty, the article’s second move is to propose a way to continue the process of decolonization by stepping down from the level of nation states to examine the individual’s role. The article proposes that when nation states are interconnected in ways that create quasi-colonial relationships, law should recognize legitimate avenues for individuals to migrate from the quasi-colonized to the quasi-colonizing nation. Seen in the light of inequitable global interconnection arising from colonization, the goal of decolonization becomes—not independence—but more equitable interconnection.

The First World nation-state, by virtue of its beneficiary status within neocolonial empire and the effectiveness of its sovereignty (secured in part through Third World subordination), has no more right to exclude Third World persons from its institutions of equal political membership than it has over its de jure citizens, where the goods of neocolonial empire are at stake. (P. 1547.)

There are lots of places this argument could go, including questions about what forms inclusion in the political membership of First World nations might take. The focus of the article, however, remains on migration as one of the main strategies that enabled colonization in the first place. If political equality is the goal of nation-state decolonization, that goal may have to be pursued through individual approaches when purely structural approaches have failed. “Whereas decolonization is typically considered a practice of political collectives—the nation-state in particular—this Article proposes that in light of how badly this arrangement continues to fail Third World peoples, individuals among them can take actions that we should understand as de-colonial.” (P. 1552.) When economic migration enhances individual self-determination within neocolonial empire, where it is responsive to the conditions of neocolonial subordination, it should be understood as attempted decolonization on the individual level.

This is migration as decolonization. The article reframes economic migration as acts of opposition by individuals in subordinate positions within neocolonial relationships, understanding them as acts that are responsive to historically rooted political inequality. This personal pursuit is therefore also a pursuit of political equality, and a matter of corrective distributive justice.

Migration as Decolonization begins geographically and historically with European colonization, but it ends with the application of its thesis to First World nations like the United States, itself a former colony. This is the article’s third move, and it divides the issue into three categories. The first, following directly from the nature of colonization, is that First World nations like Britain have no right to exclude citizens of their own former colonies when subjugating relationships persevere. Second, the move from postcolonial independence to neocolonial empire and interconnection opens the way to a much more expansive conception of who “can make the political equality demands that obviate right to exclude claims.” (P. 1561.) Thus, “Britain should be seen as neocolonially connected to, and in a relationship of domination over, Third World citizens of nation-states formerly colonized by its European counterparts, in ways that produce co-sovereign relations even among peoples the British did not formally colonize.” (P. 1561.) This is not limited to Britain; it applies to all former colonial powers.

This vision of co-sovereignty that extends beyond formal colonization leads to the third category, which addresses the prerogative to exclude claimed by First World nations like the United States with a far more mixed history of formal colonization, but that benefit from the creation and maintenance of a neocolonial empire. That neocolonial structure takes the form of a multilateral, joint enterprise among First World nation-states, and provides structural advantage to First World nations states collectively. The article argues that the creation and domination of these multilateral institutions and inequitable interconnections between nations require the same openness to inclusion of Third World quasi-citizens.

What I like (lots) about this piece, aside from its elegant prose, is that it wrenches into view a reality of inequality that has seemed so settled that we walk by it without glancing up. Achiume takes on the question of economic migration and stares it in the face. She loops her fingers through the lapels of international law and turns it—and us—to face the legacy of colonialism and its modern embodiment in the law of sovereignty. Standing on the shoulders of international legal scholars who have traced the outlines of neocolonialism, she proposes turning to individual self-determination to move the project forward. Some may disagree with the article’s proposal; good scholarship is not a popularity contest. Big ideas, though, lead to bigger conversations. This is a conversation worth having.

Cite as: Juliet Stumpf, Crowd-Sourcing Decolonization, JOTWELL (November 14, 2019) (reviewing Tendaye Achiume, Migration As Decolonization, 71 Stan. L. Rev. 1509 (2019)),

Reclaiming Place-Based Development Incentive

Michelle D. Layser, The Pro-Gentrification Origins of Place-Based Investment Tax Incentives and a Path Toward Community Oriented Reform, __ Wisc. L. Rev. __ (forthcoming 2019), available at SSRN.

Professor Michelle Layser’s forthcoming article is an attack on the current form of place-based tax incentive programs. Layser argues that while rhetorically such programs are said to help the poor, by design they support gentrification in ways that harm the poor. The article ends with a call to reform place-based incentive programs so that the poor in selected areas actually benefit.

The Pro-Gentrification Origins of Place-Based Investment Tax Incentives and a Path Toward Community Oriented Reform speaks to a number of academic audiences. For tax folks, the article contributes to the expanding universe of critical tax scholarship. For property and local government people, the article does a valuable job connecting tax incentives with both urban redevelopment and place. And for poverty law scholars, Layser takes down an entire program type that might otherwise be seen as a rare bright spot when it comes to how the nation responds to poverty.

Opportunity Zones were created by the Tax Cuts and Jobs Act of 2017, arguably the Trump administration’s signature legislative accomplishment. Ostensibly designed to encourage greater investment and siting of businesses in distressed areas, Opportunity Zones offer investors significant long-term tax advantages for siting businesses and investing in designated areas. The Opportunity Zones program is but the latest iteration of a series of place-based tax incentives such as enterprise zones, empowerment zones, and the New Markets Tax Credit Program. Like the programs that preceded it, Opportunity Zones enjoy bipartisan support: Democrats are happy to see money directed at poor communities and Republicans appreciate the business subsidies. Like the Earned Income Tax Credit (EITC), the other major antipoverty program that has been politically popular on both sides of the aisle over the last two decades, the Opportunity Zones program is a market affirming approach to dealing with poverty.

Yet, Layser insightfully observes that place-based incentive programs fit awkwardly alongside the simultaneous move in other antipoverty areas towards people-based strategies. For example, even as housing programs switch from place-based public housing to less geographically restricted vouchers, place-based tax incentive programs are all about designated areas. There is of course a risk of over-extending this contrast, but part of what makes place-based incentive programs attractive is that they seem to respond to the fact that place and poverty are linked. Layser does a tremendous job laying out, in a concise yet rich way, the importance of place and the adverse effects of concentrated poverty.

The article’s main argument is that the gentrification facilitated by these place-based tax incentive programs is not a design flaw but a design feature. Gentrification is the goal. Twenty years ago, Audrey McFarlane published one of my favorite poverty articles, Race, Space, and Place: The Geography of Economic Development,1 and in it she questioned development as an unambiguous good for poor urban areas. Though we are now in the era of Opportunity Zones and not Empowerment Zones, reading these two great works side-by-side shows the extent to which these programs continue to reflect a faith that markets, development, and investment will cure all. Promised jobs may not materialize, neighboring communities may be harmed, and even development within the designated areas can be problematic, especially if low-income residents are unable to participate in the growth or are priced out.

Given the problems with place-based tax incentive programs that she lays out so well in the article, one might have expected Layser to argue that it is time to abandon this approach. After all, Layser describes these place-based programs as inefficient and inequitable, which is the ultimate way for a tax professor to call a program “very bad.” But Layser is ultimately an optimist of sorts. She explains that her hope is that the article “helps bridge the fields of tax law and poverty law by demonstrating the untapped potential of place-based investment tax incentives as anti-poverty tools.” To get from her damning critique of place-based tax incentives as a response to poverty to the possibility that such incentives could help poor communities requires some work.

The article ends with a call to use mental mapping exercises in poor communities as a tool when designing tax incentives in order to ensure the incentives are structured to ensure the right benefits flow to those communities. “Past experience with spatially oriented investment tax incentives provides powerful evidence that the interests of poor communities, private industry, and governments will not align absent deliberate efforts to empower community stakeholders,” Layser continues, “One way to empower community stakeholders is through citizen participation.” Layser’s work fits nicely alongside other academic attempts at reviving community participation and a positive story can be told about how participation can lead to better outcomes.2 Frankly, I was not convinced by this final section of the article. It seemed too optimistic about both the politics of the moment and the likelihood regulators and investors would get behind a multiplicity of locally-tailored tax incentives. I worry that, worse-case scenario, participation will be window dressing, taking the form of tokenism. Or, best-case scenario, it will provide an effective tool for redirecting tax incentives in such a way that community needs are prioritized and gentrification is protected against, in which case investors will flee. Layser is quite right to acknowledge that her proposal is likely to face opposition by politicians and businesses.

My pessimism regarding the feasibility and workability of Layser’s idea of community-oriented tax incentives does not detract from the strength of the article. Though the EITC will continue to enjoy first position perhaps when it comes to scholarship that explores the intersection of tax and poverty,3 it is wonderful to see so much work coming out that shows how these two fields are deeply intertwined in other ways as well.4 I am not qualified to say how great a contribution this article makes to the tax literature, but it definitely makes a valuable contribution to the poverty literature. Having heard Professor Layser speak about the work before, I had high expectations and this article meets them. I encourage others to find a time and place to read this important work.

  1. 36 San Diego L. Rev. 295 (1999).
  2. See, e.g., Wendy A. Bach, Mobilization and Poverty Law: Searching for Participatory Democracy Amid the Ashes of the War on Poverty, 20 Va. J. Soc. Pol’y & L. 96 (2012).
  3. See, e.g., Sara Sternberg Greene, The Broken Safety Net: A Study of Earned Income Tax Credit Recipients and a Proposal for Repair, 88 N.Y.U. L. Rev. 515 (2013); Francine J. Lipman, Access to Tax InJustice, 40 Pepp. L. Rev. 1173 (2013).
  4. See, e.g., Ari Glogower, Taxing Inequality, 93 N.Y.U. L. Rev. 1421 (2018); Susanna Camic Tahk, The Tax War on Poverty, 56 Ariz. L. Rev. 791 (2014).
Cite as: Ezra Rosser, Reclaiming Place-Based Development Incentive, JOTWELL (October 22, 2019) (reviewing Michelle D. Layser, The Pro-Gentrification Origins of Place-Based Investment Tax Incentives and a Path Toward Community Oriented Reform, __ Wisc. L. Rev. __ (forthcoming 2019), available at SSRN),

Incapacity Push-Back

Sean M. Scott, Contractual Incapacity and the Americans with Disabilities Act, 123 Dickinson L. Rev. __ (forthcoming 2019), available at SSRN.

What happens when a set of longstanding common law assumptions meets an assertive and vigorous civil rights act? Professor Sean Scott examines this question in terms of contractual incapacity and the Americans with Disabilities Act (ADA) in her aptly titled Contractual Incapacity and the Americans with Disabilities Act. She confronts the standard application of the doctrine of contractual incapacity in view of the ADA’s wide-ranging aim of upsetting traditional notions of disability and impairment.

To combine these two antagonistic ideas—contractual incapacity and the ADA—Professor Scott first outlines the texts and ambitions of each. Next, she introduces these two unwilling dance partners to one another and demonstrates that particular aspects of the idea of contractual incapacity do in fact undermine both the ADA and the goals of the disability rights movement. She concludes with nudging. She gives the law a small push, suggesting that our legal imaginations might reconsider contractual incapacity against the demands of disability rights activists. It’s a powerful nudge, one which has implications for various populations, from developmentally disabled persons to elderly individuals with dementia.

The contractual incapacity doctrine boasts deep roots, traceable to Roman law and the Visigothic code. The basic idea is that a person lacking the cognitive wherewithal to understand a contract cannot be said to have entered into a contract at all. Incapacity is a defense. When the court finds that one party to a contract lacked capacity, the contract can be void or voidable. Given its ripe age, we might not be surprised to perceive in the doctrine some residue of outmoded and stereotypical tropes.

For example, Professor Scott explains, in contractual incapacity cases, “disability drift” commonly occurs, where “the presence of a physical disability is taken as evidence of a mental one….” (P. 25.) Historically, individuals who were deaf were presumptively “idiots” and therefore unable to contract. Even newer decisions can take disheveled hair or disordered mascara as evidence of mental incapacity. Other cases present individuals with mental disabilities as objects of pity with modifiers such as “tragic,” “lonely,” or “pathetic.” (P. 24.) Another cluster of decisions demonstrates the way judges can view disability as pathology; as something wrong. A pathological/medical vision of disability ignores the roles which societal restrictions and responses to the individual’s disability play. This kind of response can be exacerbated when an individual deviates from societal norms.

Despite the ADA’s attempt to deconstruct the notion of disability by lifting social barriers, the contemporary contractual incapacity doctrine continues to disregard the notion of disability as social construct. The notion that it is the impairment itself coupled with society’s response to it that results in a disability undergirds the ADA. Take away the social construction of the impairment and the affected individual’s barriers recede or even disappear. But focus on the impairment and pathology and there is no space for consideration of the societal aspect of a disability. This then represents a direct collision between the ADA and contractual incapacity as it is currently applied.

Professor Scott also discerns another point of conflict between the ADA and contractual incapacity in the “regarded as” definition of a disability. The ADA actually contains three alternative definitions of “disability.” The first is an actual disability (a substantially limiting mental or physical impairment). The second is a record of having an actual disability. The third is simply being “regarded as” having a disability. The ADA’s “regarded as” definition participates in the disability-as-social-construct notion. Both the statutory definition and this notion are concerned with the disabling effects of stereotypical and outmoded social constructs of disability; disability as pathology, an object of pity, or drift.

The ADA also implicitly rejects uninformed lay diagnoses. Great harm follows assumptions such as the assumption that someone with a stutter cannot possibly understand a complex contract. “Better to leave cognitive diagnoses to medical experts,” the “regarded as” prong seems to say to the American people.

Contractual incapacity cases, meanwhile, are only too quick to rely on lay testimony. Lay testimony routinely invokes questionable evidence such as a party’s idiosyncratic behavior, uncleanliness, or speech irregularities. Moreover, the question of whether one party to the contract “should have known” of the other party’s mental disabilities once again invites a parade of judgmental and archaic observations frequently having little to do with an individual’s actual cognitive limitations.

Here, then, Professor Scott identifies a secondary collision between contractual incapacity and the ADA, within the “regarded as” definition of disability. Professor Scott then proposes a rather radical solution. She rejects the protectionist attitudes of courts’ applications of contractual incapacity. Instead, parties in a breach of contract action would only be permitted to raise incapacity as a defense to enforcement when they had been adjudicated as mentally incompetent (e.g., in a plenary guardianship proceeding). This would drastically limit the incapacity defense to only a handful of cases. The doctrines of undue influence and unconscionability might fill the gaps.

Of course, one consequence of enacting Professor Scott’s proposal would be that a number of individuals with disabilities would be bound to contracts they lacked any capacity to understand. This is no small cost. Professor Scott concedes that she does not intend “to offer a definite solution to a definite problem.” (P. 76.) Rather, her proposal is intended to nudge our thinking and our imaginations in the direction of autonomy and equality for individuals with mental impairments.

Cite as: Tom Simmons, Incapacity Push-Back, JOTWELL (October 11, 2019) (reviewing Sean M. Scott, Contractual Incapacity and the Americans with Disabilities Act, 123 Dickinson L. Rev. __ (forthcoming 2019), available at SSRN),

Poverty, Privacy, and Living Out of Reach

Michele Gilman &  Rebecca Green, The Surveillance Gap: The Harms of Extreme Privacy and Data Marginalization, 42 N.Y.U. Rev. L. & Soc. Change 253 (2018).

If in general we are to understand that, in our new age of surveillance and pervasive use of data, privacy is dead, something else is happening in poor communities. In Poverty Law scholarship, privacy is framed more accurately as violently absent. Hypersurveillance, hyperregulation, criminalization, stigma, and structural racism have created a world in which, in Khiara Bridges’s words, “state intervention, coercion, and regulation”1 are the norm. Poverty Law scholars also know privacy as something that is, in its idealized liberal form, profoundly inadequate. As Dorothy Roberts argues, “merely ensuring the individuals ‘right to be let alone’—may be inadequate to protect the dignity and autonomy of the poor and oppressed.”2 Indeed a better notion of privacy “includes not only the negative proscription against government coercion, but also the affirmative duty of government to protecting the individual’s personhood from degradation and to facilitate the processes of choice and self-determination.”3

In The Surveillance Gap, Michele Gilman and Rebecca Green quite literally take all these realities and flip them over–revealing both the inevitable retreat that comes from intervention, coercion, and regulation, and the resulting lack of access to legal and institutional supports that might just support self-determination. But the flipping is just a piece of the contribution. After all, for those in the field, none of the facts are all that surprising. What is different here is what all this means for how we theorize privacy and how we create and support resistance.

Gilman and Green identify four groups who they describe as living at privacy’s extremes, groups that are “being seen or tracked too little or too much.” (P. 255.) The four are undocumented immigrants, day laborers, homeless people, and people with felony conviction histories. The “too much” piece of the tracking of these groups is well-known and well-told, both in the article and in the literature referenced above. Certainly the details vary, but all four groups are subject to hypersurveillance and punishment. And, being rational actors all, members of these groups resist through withdrawal. They meet pervasive attempts to track, control, and punish with often-successful attempts to evade detection and to retreat into some semblance of safety and privacy.

If all the surveillance and punishment are Gilman and Green’s “too much,” the “too little” are the real harms that result from that retreat. In one chilling example, “the 1.1 million undocumented children in the United States can suffer from health deficits, because parents are scared to take them to doctors, and educational delays, because parents are scared of enrolling them in school.” (P. 264.) So those who are most marginalized and stigmatized end up not being able to access what meager support might be out there. These harms not only lessen access to traditional social supports, but they also go to the center of our democracy. In short, it is tremendously difficult to participate in any meaningful way when you are deliberately retreating into the shadows.

Gilman and Green aptly describe both the causes and the conditions of living in what they term the surveillance gap. Initially, at least, all this is very depressing. If retreat is the logical and human response to surveillance and punishment, and is in fact a viable form of resistance, the retreat may create a little bit of safety or a semblance of autonomy, but it does not do much to, in Roberts’ framing, “facilitate the processes of choice and self-determination.”4

Gilman and Green acknowledge these enormous theoretical and practical problems, and along the way they provide a comprehensive summary of a wide range of privacy theories, but they do more than that. They conclude with a promising path forward. In short, if living in the surveillance gap means you trade access to support and participation for a minimal and degraded form of safety, then the only solution is to remake the terms of the bargain. Communities need a way both to emerge on different and safer terms, and to demand support separate from stigma. And of course, for that you need power.

For examples of this reframing and emergence Gilman and Green highlight several organizing campaigns. For example, Workers Centers allow day laborers to emerge collectively and make demands on their own terms. Homeless folks in Seattle fought the terms of a surveillance system (HMIS) purportedly designed to help provide services. The organized community wanted the support but they also wanted a different bargain–a choice to access services without an assumption of pathology and without succumbing to surveillance. As Gilman and Green describe, “after lengthy mediations the city adopted an ‘opt-in’ version of HMIS that did not require individuals to receive services or require shelters to participate as a funding condition.” (P. 304.)

In these and other examples, we see communities creating “strategies that give people the autonomy to assert or shed privacy.” These strategies are “essential to their individual dignity and to fulfilling our communal democratic promise.” (P. 305.) As Gilman and Green argue, these examples “show that grassroots organizing, driven by the objectives and insights of affected groups, can be powerful in enhancing autonomy.” (P. 305.) None of this is easy and certainly there is strong resistance to these organizing campaigns, but it is nevertheless a glimmer of a path away from the harms of the surveillance gap.

This article reads like the beginning of work by these scholars on reconceptualizing both privacy theory and remedies to the surveillance gap. I, for one, am going to be paying attention as they take us down that road.

  1. Khiara Bridges, The Poverty of Privacy Rights (2017), at P. 205.
  2. Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies; Women of Color, Equality and the Right of Privacy, 104 Harv. L. Rev. 1419, 1478 (1991).
  3. Id. at 1479.
  4. Id.
Cite as: Wendy Anne Bach, Poverty, Privacy, and Living Out of Reach, JOTWELL (September 11, 2019) (reviewing Michele Gilman &  Rebecca Green, The Surveillance Gap: The Harms of Extreme Privacy and Data Marginalization, 42 N.Y.U. Rev. L. & Soc. Change 253 (2018)),