New SSRN Immigration Articles
Here are some recent immigration articles from the Social Science Research Network (www.ssrn.com):
(This paper is a working draft, which will be published in final form by the University of Chicago Legal Forum, Vol. 2009.) The article examines international and domestic legal challenges filed by traditional labor unions, in coalition with others, against the government of the Unites States of America. The article argues that these lawsuits can help protect the civil rights of low-wage workers by creating a coherent legal theory defending the civil rights of low-wage workers and by creating an identifiable change agent to work on that defense. The lawsuits include those challenging governmental action with respect to immigrant workers, airport security screeners, social security no-match letters and Immigration and Customs Enforcement (ICE) workplace raids. The article examines how the exclusion of low-wage workers from current constitutional and statutory protections has resulted in the lack of a coherent legal theory protecting their civil rights. It also discusses the lack of a national, collectively-based, institutional change agent devoted to protecting low-wage workers. Citing social movement theory, and applying it to lawyering for social change and labor union theory, the article argues that both are necessary to be effective. The article describes international lawsuits filed under the North American Agreement on Labor Cooperation and the International Labor Organization and describes how they are establishing a coherent legal theory based on a list of fundamental labor rights for North American workers and the concept of labor rights as human rights. On the domestic side, the article examines various constitutional claims brought against the government on behalf of low-wage workers and argues that the Thirteenth Amendment should be considered a useful umbrella for unifying these claims. Finally, the article describes how this type of advocacy is transforming the role of traditional labor unions.
“Constructing America: Mythmaking in U.S. Immigration Courts” Yale Law Journal, Vol. 119, 2009 MARGOT MENDELSON [BLOGGER’S NOTE: Margot knows her immigration law. A student note in the Yale L.J. on immigration is rare indeed.].
This Note argues that immigration courts have served and continue to serve as important sites for the perpetuation of national identity myths. By focusing on a subset of cases called “cancellation of removal,” the author examines the functional criteria by which immigrants are granted exemption from deportation. Despite ostensibly neutral statutory standards, immigration courts give legal sanction and shape to nostalgic, idealized images of American identity. The author connects this modern trend to the historical role of immigration law in constructing and amplifying identity narratives, which has been obscured in scholarship by an overemphasis on the civil rights achievements of mid-20th century immigration reforms.
“Fitting Punishment” JULIET P. STUMPF, Lewis & Clark Law School [BLOGGER’S NOTE: I read EVERYTHING by this Crimmigration expert.]
Poportionality is conspicuously absent from the legal framework for immigration sanctions. Immigration law relies on one sanction – deportation – as the ubiquitous penalty for any immigration violation. Neither the gravity of the violation nor the harm that results bears on whether deportation is the consequence for an immigration violation. Immigration law stands alone in the legal landscape in this respect. Criminal punishment incorporates proportionality when imposing sentences that are graduated based on the gravity of the offense; contract and tort law provide for damages that are graduated based on the harm to others or to society. This Article represents the first and fundamental step in a larger project of articulating a proposed remedial scheme that would align immigration law with the broader landscape of legal sanctions. It traces for the first time the history of immigration sanctions and offers a historical perspective on alternatives to the recent arrival of deportation as the central immigration sanction. It then proposes a new approach to remedying violations of immigration law, constructing a system of graduated sanctions grounded in criminal law and aligning immigration remedies with the tenets of U.S. immigration law.
KJ