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Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This Essay describes several barriers facing immigrants and naturalized citizens that impede their political belonging. It critiques these barriers on the basis of immigrants and foreign-born voters having rights of semi-citizenship. By placing naturalization backlogs, voting restrictions, and reapportionment battles in the historical context of voter suppression, it provides a descriptive and normative account of the political misrepresentation of immigrants.

For over a year, the COVID-19 pandemic and concerns about systemic racial injustice have highlighted the conflicts and opportunities currently faced by environmental law. Scientists uniformly predict that environmental degradation, notably climate change, will cause a rise in diseases, disproportionate suffering among communities already facing discrimination, and significant economic losses. In this Article, members of the Environmental Law Collaborative examine the legal system’s responses to these crises, with the goal of framing opportunities to reimagine environmental law. The Article is excerpted from their book Environmental Law, Disrupted, to be published by ELI Press later this year.

There is no critical race approach to international law. There are Third World approaches, feminist approaches, economic approaches, and constitutional approaches, but notably absent in the catalogue is a distinct view of international law that takes its point of departure from the vantage of Critical Race Theory (CRT), or anything like it. Through a study of racial ideology in the history of international legal thought, this Article offers the beginnings of an explanation for how this lack of attention to race and racism came to be, and why it matters today.

In this Commentary written for the Frankel Lecture symposium on police killings of Black Americans, I explore the increasingly popular claim that racialized brutality is not a malfunction of policing but its function. Or, as Paul Butler counsels, “Don’t get it twisted—the criminal justice system ain’t broke. It’s working just the way it’s supposed to.” This claim contradicts the conventional narrative, which remains largely accepted, that the police exist to vindicate the community’s interest in solving, reducing, and preventing crime. A perusal of the history of organized policing in the United States, however, reveals that it was never mainly about interdicting crime. From its inception in the nineteenth century, organized policing served the social, political, and economic priorities of empowered groups, from supporting Southern agrarian capitalist interests by imposing de facto slavery on emancipated Blacks to bolstering Northern industrialization by oppressing immigrant laborers. Afterward, police forces grew in response not to spikes in garden-variety crimes but to political campaigns and cultural anxieties. And today, it remains contested whether current policing practices—especially street policing—function to alleviate, rather than exacerbate, crime problems. While policing’s crime-reduction success is questionable, one obvious, tremendous success has been its control of race, space, and place. Police draw blue lines around Black neighborhoods—just as banks drew their red lines—designating them as high-risk, pathological spaces. Police use aggressive stop and frisks, intense surveillance, and military-style home raids to keep the people in their spatial and social place. Brutality is the business of policing, reinforced in recruitment, training, and practice. I conclude that because racialized brutality is integral to policing, reformers should not primarily focus on incarcerating specific bad cops who draw headlines. The “bad apple” narrative casts racist violence as individual and deviant, rather than institutional and structural, and undermines the current promising, if glacial, movement toward dismantling policing as we know it.

Pandemics lead to emotions that can be good, bad, and unconscious. This Article offers an interdisciplinary analysis of how emotions during pandemics affect people’s responses to pandemics, public health, financial economics, law, and leadership. Pandemics are heart-breaking health crises. Crises produce emotions that impact decision-making. This Article analyzes how fear and anger over COVID-19 fueled anti-Asian and anti-Asian American hatred and racism. COVID-19 caused massive tragic economic, emotional, mental, physical, and psychological suffering. These difficulties are interconnected and lead to vicious cycles. Fear distorts people’s decision readiness, deliberation, information acquisition, risk perception, and thinking. Distortions affect people’s financial, health, and political decisions, causing additional fears. Emotions have direct health impacts and indirect behavioral impacts, which in turn have their own health impacts. People differ vastly in whether, how much, and when they experience anxiety, complacency, and panic during pandemics. A common path is to feel some anxiety initially, then panic, and finally become complacent. This Article advocates these responses to pandemics: (1) paying people directly monthly pandemic financial assistance, (2) encouraging people to practice mindfulness, (3) gently enforcing Non-Pharmaceutical Interventions, (4) fostering accurate information acquisition about pandemics, and (5) applying psychological game theory to better understand emotions that depend on beliefs about leadership.

"Copyright © S. James Anaya and Antony Anghie 2021. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited."

As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard for their status or experience as indigenous peoples. In a recurring set of events, indigenous detainees have been presented translation and legal services in Spanish, when they actually speak only an indigenous language, in cases associated with the separation of children from their families and even the death of individuals unable to describe their health care situation to service providers.In this article, we argue that accounting for the experience of Indigenous Peoples is critical to advancing a human rights approach to migration, and addressing the legacies of conquest and colonization that undergird state policies on territorial sovereignty and border regulation. On the one hand, Indigenous Peoples like other migrants are often fleeing situations of economic, social, and political unrest in their countries. They seek personal and familial security, economic mobility, and political freedom. On the other hand, as “peoples” with political and cultural rights to self-determination and territory, indigenous peoples experience discrimination and violence not only in their individual capacities, but also with respect to their survival as collective entities. Moreover, Indigenous worldviews and relationships with traditional landscapes often predate, by hundreds or thousands of years, the contemporary boundaries of states. For example the Haudenosaunee people of North America recognize their homeland as “Turtle Island” a place not inherently defined by current borders between the U.S. and Canada. The Yaqui and Tohono O’dham peoples’ community and ceremonies stretch across the much contested Mexico-U.S. border, such that their lives and lands have become militarized zones. Family members, sacred sites, subsistence habitats, and migration patterns are similarly dispersed across current socio-political fault lines.Accordingly, the UN Declaration on the Rights of Indigenous Peoples recognizes that when indigenous peoples are “divided by international borders,” they “have the right to contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.” Other articles define the right to be from violence, to keep families intact, and to maintain an Indigenous identity without reference to national identity or citizenship status. But recognition and realization of these rights raises difficult questions – for example, if Indigenous cultural identity is tied to land and territory, do Indigenous Peoples retain their rights following relocation and displacement? As societies are more mobile, are concepts of individual identity and collective self-determination also mobile, do they go with indigenous peoples when they cross borders whether internal or external to nation-states? Whose obligation is it to effectuate such rights? Can the situation of Indigenous Peoples as migrants be meaningfully addressed through legal regimes of asylum and refugee law – or must they implicate international diplomacy and norms of state-indigenous relations. These are other questions are left largely untouched by federal law in the United States as well as the 2018 Global Compact on Migration. By focusing on the situation of Indigenous Peoples, this article pushes migration law, both in theory and practice, to consider more fully its colonial origins and impacts, and incorporate a broader concept of individual and collective human rights going forward.

Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes to reach wage theft. In this Article, I examine the drive to criminalize wage theft. In the literature on workers’ rights, “wage theft” has been accepted uncritically as a distinct problem. But the literature fails to grapple with what makes wage theft clearly distinguishable from other abusive practices endemic to capitalism. For scholars concerned about worker power and economic inequality, does classifying one class of conduct “wage theft” actually serve to legitimate the other injustices of the labor market? Further, the literature on wage theft has failed to reckon with the stakes of using criminal law and incarceration as the tools to remedy workplace violations. Absent from the discourse on wage theft is any engagement with one of the most vital contemporary movements to confront structural inequality: the fight to end mass incarceration. Despite insistence from proponents of wage theft criminalization that their focus is on society’s most marginalized, particularly poor people of color, these advocates have turned to a criminal system that is widely viewed as inimical to the interests of those same marginalized populations. Moreover, in calling for criminal prosecution, many commentators have embraced the same actors and institutions that have decimated poor communities and constructed a hyper-policed population. By resituating wage theft within the literature on mass incarceration, I examine the limitations of using criminalization to redress economic injustices. I frame pro-criminalization arguments within the growing literature and activist discourse on decarceration and abolition, examining why criminalization of wage theft is and might be particularly problematic.

Landownership and homeownership are significant contributors to the creation of wealth and thus, drivers of intergenerational economic mobility. However, many people who have inherited family land are unable to realize these opportunities because of the legal effect of their particular form of landownership, often called heirs' property. These landowners are more likely to lose their land through what is known as a partition sale—a property sale resulting from a dispute between co-owners, often ignited by an outside party with an investment interest in the land. This Partners Update article explores the repercussions of heirs' property ownership and examines legislative solutions recently enacted in three southeastern states: Florida, Mississippi, and Virginia.

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way unusual in this respect (i.e., similar observations certainly could be and have been made about the pandemic’s exposure of long-lasting problems associated with the health care/insurance system, the tethering of social benefits to employment, pervasive inequality, and many other features of U.S. political economy). Nevertheless, the current moment provides an opportunity to appreciate the ways in which some of the most problematic aspects of criminal law in times of crisis are basic features of the U.S. carceral state in times of “normalcy.” To this end, my argument proceeds in two Parts, each addressing one of the aspects or pathologies of U.S. criminal policy that the pandemic has exacerbated. In Part I, I address the absence of “sentencing realism” or, perhaps more accurately, the failure to consider the reality of jails and prisons when imposing sentences or pretrial detention. In Part II, I address the basic limitations of thinking of “the criminal system” as a single monolithic “system,” or, even, as “systematic” at all. What do commentators and lawmakers miss when they suggest or assume that criminal law and its administration are the same in a rural county in Colorado as in an urban county in New York? In each Part, I explain how the pandemic has made each phenomenon more easily identifiable, but also how each phenomenon defined the criminal system in pre-coronavirus days. Ultimately, I argue that the “crisis” frame provides an opportunity for reform, but we must not allow the crisis frame to obscure the ways in which the criminal system was in crisis well before the first COVID-19 tests came back positive.

Lawyers advocating for social change are now front and center in newspapers and social media. This article discusses how a new breed of progressive lawyers envision social justice law practice today. These “critical lawyers” are diverse in background, gender, ethnicity and race. They see law as a complex, contradictory tool rather than a necessary and sufficient route to justice. Their practices differ from the traditional non-profit public interest firms of the earlier generation that assumed justice would result if law and lawyers were accessible. To highlight the differences, the article discusses the law practices of Beyond Legal Aid, Law for Black Lives, and TIME’s UP. Beyond Legal Aid is redesigning legal services to produce community partnerships. Law for Black Lives provides legal services to ensure greater equity in criminal procedures. TIME’s UP is radically revising how women respond to sexual harassment at the workplace. These practices seek to democratize the use of law to advance social justice by developing community and client collaborations. The practices rely on revenue from many sources including client fees, small donations through on-line platforms, and volunteer expertise. They seek to develop structures that can provide sustainability, flexibility, and growth including nodes and network models that allows linkage across varied practice sites. Using technology, the central node can serve a network that can stretch across geographic locations and types of organizations. This new architecture requires support from a variety of sources including law schools and peer support groups all of which enable the sharing of ideas and innovations.

Laws and institutions in the United States have consistently marginalized people of color throughout the country's history. This research examines the United States' criminal justice system while considering how the country’s past of oppression has resulted in a racially biased system. Through analysis of policies, literature, and quantitative data, the primary goal of this research is not only to exhibit that racial discrepancies exist within the criminal justice system, but also to question how they persist in order to determine a solution. By utilizing both qualitative data collected through existing social theory as well as quantitative data showing varying perceptions of the American criminal justice system, the mixed method approach to this research strives to demonstrate that when it comes to justice for all, both the source of racial bias and thesolution can be found in observing a history of colonialism and the pervasiveness of white privilege.

Calls for increased diversity among arbitrators have surged with the growth of the employer movement, so-called mandatory arbitration, which requires employees to agree to arbitrate employment discrimination matters as a condition of employment. Despite good-faith efforts by neutral service providers, civil rights organizations, bar associations, and employer and employee groups to identify and address the need for more diverse arbitrators in mandatory arbitration, many commentators still lament that this diversity problem reflects negatively on access to justice. With the #MeToo movement’s focus in recent years on the lack of a public and transparent resolution for sexual harassment matters, as well as rap music mogul Jay-Z’s late 2018 effort to identify more black arbitrator candidates for his commercial arbitration matter, concerns about the lack of diversity among arbitrators have become even more prominent. However, the core of the problem remains: despite efforts to increase diversity in arbitrator pools, parties still have discretion to select the arbitrator. Businesses (and even, to some extent, employees) have no incentive to select an arbitrator solely because of the arbitrator’s diversity profile. Representatives for businesses and employees want to win. They believe that result is best achieved by selecting arbitrators they know. Risk aversion prevents those representatives from selecting unfamiliar black and other nonwhite, male arbitrators, despite ongoing diversity efforts to populate arbitrator pools with more of these individuals. This Article explores how this “win first” dynamic hinders attempts to address arbitrator diversity and suggests a different approach by neutral service providers that mimics the selection of federal judges. This new selection process will involve the creation of a pool of diverse arbitrators with outstanding qualifications. Then, instead of having the parties choose the actual arbitrator, a neutral service provider will select the arbitrator assigned to the parties in a random manner, similar to how federal courts assign judges to cases without party input.

Over the past decade, immigrants have faced numerous challenges in the United States, including a dramatic increase in deportations, the expansion and privatization of immigration detention, major changes to the asylum system combined with drastic cutbacks in refugee admissions, and a new wave of racism and xenophobia. This Article discusses these challenges and explores possible ways to address them in 2020 and beyond.

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This article is an invited response to an American University Law Review article titled “#LivingWhileBlack: Blackness as Nuisance” that has been widely discussed in the news media and in academic circles.

This Essay argues for a greater understanding of Sojourner Truth’s little-discussed role as a proto-agonist (a marginalized, long-suffering forerunner as opposed to a protagonist, a highly celebrated central character) in the process that led up to the passage of the Nineteenth Amendment. Though the Nineteenth Amendment failed to deliver on its promise of suffrage for black women immediately after its enactment, black women were stalwarts in the fight for the Amendment and for women’s rights more broadly, well before the ratification of the Amendment and for many years after its passage. Women’s rights in general, and black women’s rights in particular, were created and sustained by the work of antebellum activists like Sojourner Truth, a towering figure who was tied to nineteenth-century movements for abolition and women’s suffrage. Sojourner Truth’s advocacy on behalf of women was premised upon a womanist approach to speech and action that centered the experiences of black women in the business of equal rights both in terms of race and gender. Sojourner Truth’s work as a justice-seeking sage with a goal of advancing the legal, political, and economic rights of women in general and black women in particular is a source of inspiration and a model for making contemporary black women protagonists and co-agonists—co-centric figures—in the work that is still much needed at the centennial of the Nineteenth Amendment.

In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like critiques of unions in general, not just police unions. To the extent that public-sector unionism remains a social good because of concerns for economic inequality and worker power, wholeheartedly embracing these critiques seems like a risky proposition. This Essay examines the strange case of police unions and asks how they are (and are not) representative of U.S. unionism. More pointedly, this Article asks what increasingly common critiques of police unions should mean for policing reform and the future of public-sector unionism. In an effort to construct a more nuanced picture of police unions’ functions, I situate the role of police unions within two disparate scholarly debates: (1) the literature on policing reform; and (2) the literature on public sector unions. How are police unions different from other public-sector unions, and how might critiques and defenses of police unions apply to other public-sector unions? Ultimately, I argue that the challenge in articulating a theory of what makes police unions different highlights both the problem with police and the problem with the way scholars think about unions. If police unions are objectionable because of their views and the conduct of police, this concern speaks to a problem with police—full stop. The problems with the unions are only issues by extension. If the unions are objectionable because of their commitment to their members’ interests over those of the public at large, though, the critiques are properly understood as undercutting public-sector unions generally.

The United Nations General Assembly has proclaimed 2022-2032 as the International Decade of Indigenous Languages. Building on lessons of the International Year of Indigenous Languages of 2019, the Decade will "draw attention to the critical loss of indigenous languages and the urgent need to preserve, revitalize and promote indigenous languages." These actions are necessary, in part, because existing laws and policies have proven inadequate to redress the legacy of state suppression of indigenous languages or ensure nondiscrimination in contemporary usage. In light of the International Year and Decade, this Article explores the rights of indigenous peoples to "use, revitalize, and transmit their languages,"as recognized in the UN Declaration on the Rights of Indigenous Peoples and other human rights instruments. The Article considers how a better understanding of the human rights dimensions of the problem-and especially a more thoughtful approach to the "implementation" of human rights in both law and society-could help to advance remedial and ongoing measures toward the realization of indigenous peoples language rights going forward.

This Symposium Guest Editor’s Note is an adapted version of the Introduction to The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (UC Press 2020). The book examines how American feminists, in the quest to secure women’s protection from domestic violence and rape, often acted as soldiers in the war on crime by emphasizing white female victimhood, expanding the power of police and prosecutors, touting incarceration, and diverting resources toward law enforcement and away from marginalized communities Today, despite deep concerns over racist policing and mass incarceration, many feminists continue to assert that gender crime law is not tough enough. This punitive impulse, I argue, is dangerous and counterproductive, and should be abandoned. History reveals that feminists' carceral approach often exacerbated social inequalities by expanding and underwriting the repressive criminal system, that harmed defendants, victims, and their families and communities. This essay begins with the feminist defense attorney dilemma I felt as a law student, when I trained to represent marginalized people against state prosecutorial power but did so with a dread of defending horrific rapists and batterers. Later, as a public defender, I represented clients like Jamal, an accused abuser whose story is related in detail, and I saw firsthand the costs of the tough-on-crime machine that carceral feminism built. The essay then moves to the present day, with a discussion of the #MeToo movement and campus rape reform. I counsel contemporary feminists that their noble fight against sexual misconduct can easily collapse into simple crime-control politics and urge them to articulate their complex beliefs about gender and violence without relying on penal discourses and institutions that are steeped in hypermasculinity and gratuitous violence.

This Article explores the workings of Public Purpose Finance, and its role within the U.S. political economy. “Public Purpose Finance” (PPF) refers to the broad range of institutions through which the government extends credit to private borrowers in sectors like housing, education, agriculture and small business. At a total of $10 trillion, PPF roughly equals the entire U.S. corporate bond market, and is around one half of the U.S. Gross national debt (2018 figures). The Article begins by surveying and quantifying the scope of PPF. It then demonstrates that PPF enjoys a considerable degree of insulation from the federal budgetary process. The heart of the Article is an attempt to explain the political logic behind the off-budget treatment that PPF enjoys. In a nutshell, while ordinary budget spending is ultimately funded through taxes levied across the tax base, government lending is funded through loan repayment by the borrowers themselves (A model formalizing these claims is available in the Appendix). This off-budget treatment makes PPF a powerful tool for upward mobility, but it also creates a democratic deficit, and has long been a driver of racial inequality. A key theme of the Article is the need to maintain the off-budget treatment, while developing alternative modes of political participation. Government lending, like the budget, should become a key tool for society to formulate its economic agenda.