Interesting SSRN Immigration Articles

Here are new immigration articles posted to the Social Science Research Network (www.ssrn.com):

“States of Confusion: The Rise of State and Local Power over Immigration” North Carolina Law Review, Vol. 86, Issue 6, 2008 Lewis & Clark Law School Legal Studies Research Paper No. 2008-22 JULIET P. STUMPF, Lewis & Clark Law School

Federal immigration law has evolved from a stepchild of foreign policy to a national legislative and regulatory scheme that intersects with the triumvirate of state power: criminal law, employment law, and welfare. Shifting the locus of immigration law out of the category of foreign affairs and into these domestic spheres casts immigration law into a world infused already with state and local regulation. This Article explores the way in which re-imagining immigration law as a domestic affair is bound to expand subnational control over immigration. Once immigration law is re-imagined as interwoven with these domestic areas of law, state and local governments will seek to regulate it concurrently with the federal government. Domesticating immigration law will as inevitably impact the judges and legislators who pass upon the lawfulness of that subnational involvement. When courts perceive the subnational rule as a regulation of foreign policy, the space permitted for local regulation narrows. When, however, courts view the subnational government as acting within its traditional spheres of power, the local rule stands a much greater chance of surviving. The domestication of immigration law is especially apparent in state and local efforts to address the criminalization of immigration law, or “crimmigration law.” The rise of crimmigration law has transformed immigration law from something the federal government is uniquely positioned to control – foreign policy – to something states are experts in – law enforcement. This Article employs history, law and policy to critique the growing trend toward subnational reliance on criminal law to control immigration. It advocates a searching evaluation of the costs of subnational laws that single out noncitizens for criminal sanctions.

“The Extraterritorial Constitution after Boumediene v. Bush” Southern California Law Review, Forthcoming Harvard Public Law Working Paper No. 08-39 GERALD NEUMAN, Harvard University – Harvard Law School

The U.S. Supreme Court’s recent decision in Boumediene v. Bush elaborates a “functional approach” to the selective application of constitutional limitations to U.S. government action outside U.S. sovereign territory. This functional approach provides the best fit, both descriptively and normatively, to the Court’s modern case law. The decision repudiates the stance of the plurality in United States v. Verdugo-Urquidez (1990), which sought to deny all constitutional rights to foreign nationals involuntarily subjected to U.S. action abroad. Important ambiguities remain in the articulation of the functional approach. One major question is whether and when foreign nationals who are not in U.S. custody (unlike the Boumediene petitioners) are also potentially eligible for constitutional protection. Another concerns how coarsely or finely the categories of foreign locations are drawn when the functional analysis is applied. The confirmation of the functional approach has significant consequences for U.S. citizens who travel abroad, and for foreign nationals who travel here, as well as for foreign nationals who remain abroad. Although the Supreme Court did not rely on international law in its Boumediene decision, international human rights law may prove more helpful in the future in determining whether limitations such as the First Amendment or the Takings Clause can practicably be given effect in foreign countries.

“Ask Don’t Tell: Ethical Issues Surrounding Undocumented Workers’ Status in Employment Litigation” U Denver Legal Studies Research Paper No. 08-22 Stanford Law Review, Forthcoming CHRISTINE N. CIMINI, University of Denver Sturm College of Law

The presence of an estimated 11.5 million undocumented immigrants in the United States, of which an estimated 7.2 million are working, has become a flashpoint in the emerging national debate about immigration. Given these statistics, it is not surprising that many undocumented workers suffer injuries in the workplace that are typically legally cognizable. Even though undocumented workers are entitled to a number of legal remedies related to their employment, seeking legal relief often raises heightened concerns about the disclosure of their status. This article explores lawyers’ increasingly complex ethical obligations with regard to a client’s immigration status in the context of employment litigation. The complexity regarding the nature and scope of a lawyer’s obligation is due, in large part, to two recent developments. The first is the United States Supreme Court’s 2002 decision in Hoffman Plastic Compounds v. National Labor Relations Board, in which the Court addressed the scope of lawful relief due to an injured undocumented worker and ultimately left open the question of relevancy of immigration status in general civil litigation. The second factor creating this complexity relates to existing legislation that criminalizes various acts by undocumented immigrants as well as the ongoing legislative debates regarding immigration reform which have included proposals to criminalize the mere status of undocumented immigrants. This article addresses both of these developments in the context of lawyers’ ethical obligations and analyzes several questions. First, in light of ethical prohibitions on lawyers assisting in conduct that is criminal or fraudulent, are there any ethical limitations upon a lawyer’s ability to represent undocumented workers in employment litigation? Second, once representing an undocumented worker, how do lawyers balance their duty of confidentiality against disclosure obligations? And, finally, despite this article’s conclusion that the ethical rules do not mandate disclosure of a client’s immigration status, this article explores the strategy of disclosure and whether the decision to disclose belongs to the lawyer or the client. In light of the potentially catastrophic consequences of an improperly made disclosure, lawyers need to be mindful of the special ethical obligations that arise when representing undocumented workers in employment related civil litigation. The article proposes a framework and analysis to guide lawyers through these difficult ethical quandaries.

“The Other Immigration Crisis” VIVEK WADHWA, Duke University – Pratt School of Engineering

The United States is bringing the world’s smartest people to its shores, training them, and then making them leave.

KJ