Tuesday, October 28, 2008

New Immigration Articles from SSRN

The Social Science Research Network (www.ssrn.com) has posted three articles that touch on immiugration that are worth a read:

"An Assessment of Latcrit Theory Ten Years After" Indiana Law Journal, KEITH AOKI (UC Davis) & KEVIN R. JOHNSON (UC Davis).  Abstract:  This article is published in a symposium issue on Latina/os and the Law. This essay assesses LatCrit theory a decade after Latina/o Critical Legal Studies ("LatCrit") began publishing symposia that attempted to gather and organize a diverse group of scholars working on diverse scholarly projects using a diverse set of methodologies. This essay recognizes both LatCrit's achievements and shortcomings. LatCrit has articulated an anti-essentialist and anti-subordination agenda, creating an important social network for young scholars of color at the annual LatCrit Conference. However, LatCrit theory, as represented by the annual publication of papers solicited at the Conference, has been uneven and this essay considers reasons why this is and what might be done to address this unevenness. LatCrit theorists, through an organized institutional structure, have instrumentally built a community of scholars and fostered a collective commitment to issues of social justice. Moreover, to its credit, LatCrit theory in little over a decade has produced a considerable body of scholarship analyzing race and racism, as well as other forms of subordination, in the United States and globally. It has, for example, made important contributions to the analysis of the Black/white paradigm of civil rights, which historically has marginalized Latina/o civil rights concerns. LatCrit theory has also shed fresh new insights on deep, enduring, and complex issues of Latina/o identity, as well as criminal justice, immigration enforcement, and the building of mulitiracial coalitions for social justice. From its outset, LatCrit has stood firmly committed to anti-essentialism - the acknowledgment of the great diversity in the Latina/o community - and anti-subordination. These two foundational principles are now so embedded in the critical literature that they are difficult to seriously dispute today. However, one vitally important-and unquestionably fundamental-question inevitably nags at virtually any scholar in evaluating critical Latina/o theory at this time in its history: beyond some original insights at the movement's inception, what has LatCrit come to affirmatively stand for today as a scholarly movement? Given the current state of LatCrit scholarship, one would be hard pressed to answer this question with any degree of certainty. A review of LatCrit's sprawling body of work reveals that the unifying themes and common threads are difficult to identify with specificity. In 2006, LatCrit theory published a symposium issue commemorating its tenth annual conference, an important milestone. In this essay, we hope to use this historical moment as an opportune time to assess both LatCrit theory's scholarly achievements as well as its future trajectory. In so doing, we bring to print issues that have been discussed extensively inside and outside of LatCrit circles for many years. These sensitive issues, however, have largely escaped commentary in LatCrit scholarship-effectively sacrificed to the goal of inclusion and to the concerted efforts to construct a lasting scholarly community. In our estimation, the prolonged silence about the unevenness of LatCrit scholarship jeopardizes the intellectual component of the burgeoning movement.

"Three Models of Citizenship" PETER H. SCHUCK (Yale University) Abstract:  This conference paper, focusing on the citizenship debate in the U.S., elaborates three distinctive models of citizenship, which I call nationalistic, human rights, and Marshallian (after sociologist T. H. Marshall's seminal essay). I analyze each model along three normative dimensions: justification, territoriality, and entitlements. The nationalistic model is justified by a theory of mutual democratic consent and emphasizes bounded territoriality as the main basis for membership. A liberal, highly individualistic polity like the U.S. takes a decidedly ambivalent view of entitlements. On the one hand, they are part of the quid pro quo, the social contract on which consensual membership rests, at least in contemporary society. Moreover, most Americans manifestly believe that even in a liberal polity - or perhaps especially in such a polity - certain minimum entitlements are in fact necessary to secure a dignified, participatory, independent life for their fellow citizens and for at least some of the non-citizens who reside and work among them. On the other hand, Americans also manifestly believe that additional entitlements, either in kind or amount, threaten these very same values, especially independence, and would at the margin reduce the motivation to work and to take responsibility for oneself and one's family. Although all developed societies exhibit this ambivalence, different ones strike the balance among the benefits, costs, and risks of entitlements quite differently, with the U.S. being an outlier in limiting publicly-funded welfare supports. The human rights model is justified by the imperative of securing individual and group rights that will assure humane and protective conditions for those who are unfortunate enough to reside in cruel or despotic states, and for those who are outside their country of nationality and at risk of unequal and inhumane treatment in their new locations. The human rights model's domain is emphatically transnational, not territorially bounded. On this account, one's birth in a particular state and to particular parents is adventitious; such a locational accident is arbitrary and should not determine one's access to rights that, as a matter of distributive justice, should be enjoyed universally, not only by national members. On entitlements, this model is keen to preserve, not diminish, the full panoply of civil and political rights that are already guaranteed (constitutionally or by statute) to nationals in the U.S., European states, and other liberal democracies. These rights constitute the baseline for entitlements; the model's goal is to extend them to all people who are located within the state and thus subject to its governmental authority The Marshallian model focuses not on the rights of non-citizens but rather on what he viewed as the incomplete set of rights accorded to those who are already full citizens. Its justification lies in its aspiration for social equality for all citizens, including their equal access to those resources that are essential for full and equal participation in community life. It has little to say about territoriality, perhaps because he assumes the autonomy of the nation-state, specifically his own, the United Kingdom. Unlike the other models, Marshall's fails to discuss the phenomenon so central today of large-scale immigration and the consequent claims against the state by non-citizens. On entitlements, the model focuses on full participation in the society, polity, and economy. Its proponents view the U.S. as a "welfare laggard" in this respect, a premise that I question by calling attention to six complicating factors: size, immigration, demography, privatization, globalization, and intra-EU dynamics. For each model, the paper poses what strikes me as the most urgent, and usually neglected, question to be raised about it, and I offer a very tentative and all-too-brief and simple, if not simplistic, answer to each question. For the nationalistic model, the question is about its continuing relevance in a rapidly globalizing world. For the human rights model, the question is whether it contains any real limits, internal to itself, on the obligations that it would impose on states in their dealings with people who are often (not always) perfect strangers in all but a universalistic, humanistic sense. The question for the Marshallian model is why it has gained much less public support in the United States than in most of the European states. The conclusion briefly speculates about the future of the Marshallian model in both the U.S. and Europe. It predicts that a distinctively liberal, individualistic, privatistic form of nationalist citizenship will continue to flourish, one that will bewilder Europeans even as they edge their way inexorably toward their own more communitarian version of it.

"The Canadian Indian Free Passage Right: The Last Stronghold of Explicit Race Restriction in United States Immigration Law" North Dakota Law Review PAUL SPRUHAN (Navajo Nation Supreme Court)  Abstract:  The paper discusses the little-known provision of the Immigration and Nationality Act that allows Canadian Indians of 50% or more of the "blood of the American Indian race" to cross the United States-Canada border free of visa and other immigration requirements. Through archival documents, the paper traces the origins of the right through the 1794 Jay Treaty between the United States and Great Britain to a statute passed by Congress in 1928. The paper discusses the interpretation of the 1928 statute by the Immigration and Naturalization Service, which first applied a political definition of the term "Indian" based on Canadian law, then shifted to a racial definition based on American naturalization law. Finally, the paper discusses the 1952 amendment to the statute, which added the blood quantum requirement, and reveals the reasons why a racial definition was added at the same time American immigration law generally moved beyond racial distinctions to control entry to the United States. Based on this discussion, the paper analyzes the implications of the provision for current concerns in federal Indian law and immigration law over racial classifications. Noting that Congress' authority over Indian law and immigration law both depend on historically unfettered "plenary power," the paper suggests that the Canadian Indian statute might be used to distinguish other statutes defining American Indians by blood quantum and to challenge the Supreme Court's exemption of racial immigration provisions from equal protection review.

KJ

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