The Citizenship of Others

The liberal notion of citizenship provides equality to all citizens, without regard to ascriptive or other differentiating characteristics. In this sense, citizenship promises to be dispositive of the treatment of all individuals who enjoy it; citizenship is uniform, unalloyed, and indivisible. These are the attributes of citizenship within a liberal national system, governing the relationships between citizens and the state, and among citizens within the state. But must these characteristics extend into the international realm, or may states choose to look beyond the mantle of citizenship when evaluating the citizens of others? And if states do choose to differentiate, and thereby discriminate, among the citizens of others, what obligations do those citizens\u27 states bear? This Article considers two instances in which the formal equality of citizenship is jeopardized by discrimination on the basis of national origin (the place of one\u27s birth) and ancestry (the place of one\u27s ancestors\u27 birth)

A Rage Shared by Law: Post-September 11 Racial Violence as Crimes of Passions

September 11 will long be associated with unthinkable violence. The sheer magnitude of the terrorist attacks, the visual imagery of the collapsing towers of the World Trade Center, and the extensive media attention given to the victims have defined the violence of September 11 in unitary terms. But in the aftermath of the terrorist attacks, another form of violence spread across the country: in the days and weeks after September 11, over one thousand bias incidents against Arabs, Muslims, and South Asians were reported. These incidents, including the murders of as many as nineteen people, assaults of scores of others, vandalism of homes, businesses and places of worship, and verbal harassment of countless individuals, form part of the subterranean history of September 11. While the violence of September 11 itself is largely thought to have been incomprehensible, post-September 11 hate violence is remarkable precisely because it is something we can understand. Although condemned as individual acts of criminality, the phenomenon of hate violence toward Arabs, Muslims, and South Asians is one that appeared to need little explanation; it was accepted as a regrettable, but expected, response to the terrorist attacks. As early as September 12, 2001, major newspapers reported predictions of the violence against these communities

Resisting Guantanamo: Rights at the Brink of Dehumanization

When the Supreme Court issued its decision in Boumediene v. Bush in June 2008-the latest of several cases regarding the rights of terrorist suspects held at Guantanamo Bay-it was hailed by progressive commentators and human rights advocates as a landmark in rights jurisprudence. Holding that the Guantdnamo prisoners possess a constitutional right to challenge the legality of their detention through the writ of habeas corpus, Justice Kennedy reached for appropriately lofty language, stating, The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled, and in our system, they are reconciled within the framework of the law. Indeed, the extension of a constitutional provision to noncitizen wartime prisoners held outside the United States was breathtaking. This was especially so in the face of six years of government insistence that the prisoners at Guantdnamo had no rights whatsoever, and could be held indefinitely, even for life, without charge or meaningful opportunity to contest their treatment or detention. The decision was a rebuke to the Executive\u27s claims of outsized authority, and, the Court told us, a reassertion of the supremacy of law. It was a rights moment. Or so it seemed

The Ethics of Narrative

My project today is to examine the scope of that most central of lawyerly duties, the duty of zealous representation, and its relation to narrative. Specifically, I want to explore the tension that arises between the progressive lawyer\u27s political commitment to antisubordination on the one hand, and the particular demands of an individual client\u27s case on the other. The question presented is: Do the ethical rules permit, or even require, lawyers to strategically deploy racist, sexist or homophobic narratives that will advance their clients\u27 interests? I begin the consideration of this thorny question by examining a specific teaching tool used in our law school and a series of complexities generated by it, and then propose a modest amendment to the ethical rules that would permit lawyers to better balance their commitments to progressive values and to their clients

Beyond Earned Citizenship

For more than a decade, a single rubric for legalization of the 11 million undocumented people in the United States has dominated every major proposal for comprehensive immigration reform, and continues to do so today: earned citizenship. Introduced as a rhetorical move intended to distinguish such proposals from amnesty, the earned citizenship frame has shaped the substantive provisions of the legislation by conditioning legalization on the performance of economic, cultural, and civic metrics. In order to regularize status, earned citizenship would require undocumented individuals to demonstrate their ongoing societal contributions at multiple intervals over a probationary period of many years, and they would remain subject to deportation for failure to do so. Such a behavioral approach expresses a particular moral basis for legalization and a normative vision of citizenship, and it aspires to place millions of people on a path to citizenship. And yet, despite the centrality of earned citizenship in contemporary immigration debates and the magnitude of its ambition, there has been virtually no scholarly treatment of its substance, ideology, or normative claims. While the election of Donald Trump has rendered progressive immigration reform improbable in the next several years, this is all the more reason to examine the failed logic and structure of recent reform proposals. This Article explores the origins and illuminates the deep structure of earned citizenship, and it critically evaluates its virtues and shortcomings as matters of politics, morality, policy, and law. Although laudable for its inclusionary promise, earned citizenship suffers from serious and previously unaddressed theoretical and conceptual flaws that reinscribe the moral claims of restrictionists, illuminate and imperil our larger understandings of citizenship, and invite consideration of alternative frameworks for legalization. The rightward electoral shift has closed a window for progressive reform for now, but when it is next pried open, a different moral and legal framework for legalization may be required

The Citizenship of Others

The liberal notion of citizenship provides equality to all citizens, without regard to ascriptive or other differentiating characteristics. In this sense, citizenship promises to be dispositive of the treatment of all individuals who enjoy it; citizenship is uniform, unalloyed, and indivisible. These are the attributes of citizenship within a liberal national system, governing the relationships between citizens and the state, and among citizens within the state. But must these characteristics extend into the international realm, or may states choose to look beyond the mantle of citizenship when evaluating the citizens of others? And if states do choose to differentiate, and thereby discriminate, among the citizens of others, what obligations do those citizens\u27 states bear? This Article considers two instances in which the formal equality of citizenship is jeopardized by discrimination on the basis of national origin (the place of one\u27s birth) and ancestry (the place of one\u27s ancestors\u27 birth)

The Ethics of Narrative

My project today is to examine the scope of that most central of lawyerly duties, the duty of zealous representation, and its relation to narrative. Specifically, I want to explore the tension that arises between the progressive lawyer\u27s political commitment to antisubordination on the one hand, and the particular demands of an individual client\u27s case on the other. The question presented is: Do the ethical rules permit, or even require, lawyers to strategically deploy racist, sexist or homophobic narratives that will advance their clients\u27 interests? I begin the consideration of this thorny question by examining a specific teaching tool used in our law school and a series of complexities generated by it, and then propose a modest amendment to the ethical rules that would permit lawyers to better balance their commitments to progressive values and to their clients