Law Commons^™

Nondomination And The Ambitions Of Employment Law, Aditi Bagchi

Faculty Scholarship

There is something missing in existing discussions of domination. While republican theory and critical legal theory each have contributed significantly to our understanding of domination, their focus on structural relationships and group subordination can leave out of focus the individual wrongs that make up domination, each of which is an unjustified exercise of power by one person over another. Private law (supported by private law theory) plays an important role in filling out our pictures of domination and the role of the state in limiting it. Private law allows us to recognize domination in wrongs by one person against another, …

In The Zone: Work At The Intersection Of Trade And Migration, Jennifer Gordon

Faculty Scholarship

Trade and immigration are generally described as separate dimensions of globalization. This Article challenges that story by focusing on settings where states and private actors are bringing the two together to achieve disparate economic and policy goals. In one set of cases analyzed here, governments in the Global South are seeking to increase trade through the use of migrant labor, attracting transnational firms to export manufacturing zones by importing lower-cost workers from other countries. In the other, policymakers in the Global North are seeking to decrease immigration through the use of trade by investing in export processing zones in migrant …

El Gran Ausente De Las Discusiones Laborales: La Migración, Jennifer Gordon

Faculty Scholarship

No abstract provided.

Bureaucratic Administration: Experimentation And Immigration Law, Joseph Landau

Faculty Scholarship

In debates about executive branch authority and policy innovation, scholars have focused on two overarching relationships—horizontal tension between the president and Congress and the vertical interplay of federal and state authority. However, these debates have overlooked the role of frontline bureaucratic officials in advancing the laws they administer. This Article looks to immigration law—in which lower-level federal officers exercise discretion delegated down throughout federal agencies—to identify how bottom-up agency influences can inform categorical, across-the-board executive branch policy. In this Article, I argue that decisions by frontline officers can and should be better harnessed to pair local laboratories of executive experimentation …

Due Process And The Non-Citizen: A Revolution Reconsidered, Joseph Landau

Faculty Scholarship

Mathews v. Eldridge is typically understood to be a ruling limiting due process protections in benefits determinations, but this case of judicial restraint in ordinary domestic law has activist features where non-citizens are concerned. The transplantation of Mathews into the critical areas of immigration and national security has produced a body of law that is slowly ushering in rights-affirming outcomes and weakening conventional doctrines of exceptionalism in immigration and national security. There are two chief reasons for this. First, ever since Mathews required an explicit judicial determination of private interests, courts have used an increasingly particularistic, case-by-case analysis in immigration …

Tensions In Rhetoric And Reality At The Intersection Of Work And Immigration, Jennifer Gordon

Faculty Scholarship

No abstract provided.

Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau

Faculty Scholarship

Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have …

The Constitutional Dimension Of Immigration Federalism, Clare Huntington

Faculty Scholarship

Although the federal government is traditionally understood to enjoy exclusive authority over immigration, states and localities are increasingly asserting a role in this field. This development has sparked vigorous debate on the propriety of such involvement, but the debate is predicated on a misunderstanding of the nature of federal exclusivity. Challenging the conventional wisdom that the Constitution precludes a meaningful role for state and local involvement in immigration.

This Article argues that the Constitution allows immigration authority to be shared among levels of government. After establishing the correctness of this view of immigration authority, this Article argues that the constitutionality …

Rethinking Work And Citizenship, Jennifer Gordon, Robin A. Lenhardt

Faculty Scholarship

This Article advances a new approach to understanding the relationship between work and citizenship that comes out of research on African American and Latino immigrant low-wage workers. Media accounts typically portray African Americans and Latino immigrants as engaged in a pitched battle for jobs. Conventional wisdom suggests that the source of tension between these groups is labor competition or the racial prejudice of employers. While these explanations offer useful insights, they do not fully explain the intensity and longevity of the conflict. Nor has relevant legal scholarship offered a sufficient theoretical lens through which this conflict can be viewed. In …

Transnational Labor Citizenship, Jennifer Gordon

Faculty Scholarship

Over one million new immigrants arrive in the United States each year. This spring, Americans saw several times that number pour into the streets, protesting proposed changes in U.S. immigration and guest work policies. As the signs they carried indicated, most migrants come to work, and it is in the workplace that the impact of large numbers of newcomers is most keenly felt. For those who see both the free movement of people and the preservation of decent working conditions as essential to social justice, this presents a seemingly unresolvable dilemma. In a situation of massive inequality among countries, to …

Construction Of Race And Class Buffers In The Structure Of Immigration Controls And Laws, The Symposium: Citizenship And Its Discontents: Centering The Immigrant In The Inter/National Imigination: Part Ii: Section Three: Rethinking Agency: Global Economic Restructuring And The Immigrant, Tanya K. Hernandez

Faculty Scholarship

In the midst of current anti-immigration sentiment, which is motivating dramatic changes in the United States immigration laws, there exists the myth that prior immigration laws were more equitable and humanitarian. Yet historical analysis reveals that immigration law has been put to uses far from idyllic, and has always been concerned with the racial makeup of the nation. Specifically, national preoccupation with the maintenance of a "White country" is reflected in immigration law. The continued national preference for White immigrants is explicitly featured in the visa profiling codes of U.S. embassies and consulates. This Essay employs a race-conscious lens to …