Immigration Article of the Day: The Law of Rescue by Shalini Bhargava Ray

The Law of Rescue by Shalini Bhargava Ray, 108 California Law Review (forthcoming)

Abstract

Areas as diverse as immigration law, criminal law, torts, contracts, maritime law, and public international law all regulate acts of rescue. In some instances, the law mandates rescue; in some, it prohibits it. In other instances, the law permits but does not require rescue. Modern legal scholarship has focused principally on mandatory and permissive forms of rescue. With humanitarian actors facing prosecution for saving migrants’ lives in the Arizona desert and elsewhere, however, scholarly treatment of the phenomenon of prohibited rescue is increasingly urgent. Why does the law prohibit some forms of rescue while mandating or permitting other forms? Analyzing disparate regimes of rescue, this Article argues that the law of rescue generally privileges property rights and commercial interests over dignity interests. As a result, vast areas of morally-driven rescue work, while socially-beneficial, remain vulnerable to prosecution. Given the persistent clash of rescuers’ moral sentiments and the government’s interpretation of prevailing law, this Article further argues that the law should create and nurture mediating institutions, such as bureaucratic discretion, religious exemptions, and NGO licensing schemes. Subtle shifts in judicial interpretation can also protect rescuers. While this Article acknowledges substantial grounds for skepticism about the efficacy of specific equitable tools, this Article concludes that such tools offer the best hope for cultivating a place for dignity in the law of rescue.

KJ