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Exiting the American Dream
Get PDFExit planning among U.S. citizens is on the rise. A confluence of worrisome domestic conditions— including societal violence, the curtailment of individual rights, and creeping authoritarianism— has prompted U.S. citizens to contemplate and plan for a possible departure from the country. Among the more popular exit pathways, particularly for minorities in the United States who have experienced or fear identity-based mistreatment, are programs that allow descendants of citizens or other members of the diaspora to acquire status in their ancestral homelands. Decades or even centuries after their ancestors’ arrival, present-day U.S. citizens are considering a return journey, thereby disrupting long-standing narratives about immigrant integration and plural democracy in the United States.
In this Essay, I offer a firsthand account of exit planning and describe how I, a gay man of color and son of immigrants, successfully obtained status in India, the nation of my parents’ birth. Drawing upon the scholarly traditions of critical legal studies and social scientific autoethnography, I interweave academic research and storytelling to generate insights about the motivations that underlie exit migration and the actual process of applying for status overseas. The Essay also records reflections about what diasporic return signifies for the project of U.S. democracy, the possibility of internal or circular migration, the powerful role of private industry in enabling transnational moves, and the complex relationships that exit planners maintain with both the United States and their ancestral homelands
Democracy on the Brink, Down but not Defeated
Get PDFThis essay assesses the current state of governance and is premised on the notion that distrust, anger, and discontent in our legal system represent a threat to the whole of the regulatory state and voting, the preeminent engines of democracy. The decline in trust in government is attributable in meaningful part to the prevalence of lies and false narratives that, if believed, will undermine government at every level. While various recent actions of Congress and certain Supreme Court cases have the potential to further dilute confidence in governance, they are not the focal point of this essay. It is disinformation and highly vocal anti-government animus that have the most disturbing and erosive effect. The article concludes that the only remedy likely to succeed is one steeped in a commitment of government to flood social media and all other available means of communication with open, transparent, and accurate information – literally, a bombardment of truth in governing and politics
Immigraft
Get PDFPursuing the American dream is a costly endeavor. From the initial journey to the United States, to navigating the complicated immigration system, to labor exploitation, to scams targeting recent arrivals, immigrants pay heavily into the formal and informal sectors. As explored in this Essay, however, their pay-out does not stop there: the U.S. Department of Homeland Security (DHS) also charges and retains funds in unjustified ways, resulting in tens of millions of dollars transferred from the pockets of vulnerable immigrants and their families to the sprawling immigration bureaucracy. This Essay introduces the term immigraft to capture this phenomenon, defined as the unjust transfer of funds from individuals to the state in the context of efforts to obtain immigration benefits or relief from the state.
This Essay highlights four examples of immigraft in the U.S. immigration system, describing how sub-agencies of DHS have illegally and/or unjustly retained funds in the context of biometric services fees, humanitarian parole applications filed by Afghan nationals, immigration bond for noncitizens in removal proceedings, and administrative appeals filed due to obvious agency mistakes. This Essay concludes by exploring theoretical implications of immigraft, including the normalization of extraction of value from noncitizens and its corrosive effect on the relationship among citizens, noncitizens, and the state. By way of a path forward, this Essay also offers practical recommendations to address immigraft through executive action and congressional oversight
The Rhetoric of Abortion in Amicus Briefs
Get PDFThe amicus briefs filed in landmark abortion cases before the U.S. Supreme Court serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights, and harms over time. This article conducts an interdisciplinary legal-linguistic study of the amicus briefs that were filed in the milestone abortion cases of Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and Dobbs v. Jackson Women’s Health. As the first large-scale study of all amicus briefs submitted in these key cases, this article identifies the roles of amicus briefs, analyzes their rhetorical strategies, and describes how their authors engage with the Court. Using quantitative and qualitative methods, the study reveals how the discursive construction of the pregnant person, fetus, physician, and abortion as a right have evolved over fifty years and shows why these shifts matter. In so doing, this study offers historical perspectives into evolving arguments in abortion litigation, contemporaneous insights into the status of polarized abortion politics, and future implications for amicus activity and abortion advocacy
Digital Bank Holidays
Get PDFThe March 2023 run on Silicon Valley Bank spurred renewed debate about how to structure deposit insurance to best eliminate future bank runs. This Article argues, however, that deposit insurance cannot be relied upon to eliminate all bank runs, especially if technological developments create potential new bank run triggers that deposit insurance may not be responsive to. We may be expecting too much of deposit insurance, and so it is worth considering other tools that might be useful in responding to future bank runs and broader banking panics. One such tool is the “bank holiday,” last deployed in the United States by FDR in 1933. This Article considers how a digital bank holiday could be implemented in this day and age. A digital bank holiday would be a drastic response that should only ever be used as a last resort—but in case such a drastic response becomes necessary, it is worth thinking through the legal and operational mechanics needed to deploy one. This Article embarks upon such an effort, and it also recommends planning for less drastic kinds of interventions that limit (without preventing) digital transactions, as another potential response to bank runs
Content Moderation on End-to-End Encrypted Systems: A Legal Analysis
Get PDFOnline messaging platforms like Signal and Google’s Messages increasingly use end-to-end encryption (E2EE), in which messages are encrypted on the sender’s device and decrypted on the recipient’s, so that no one else—not even the platform itself—can read them. Although E2EE protects privacy and advances human rights, the law enforcement community and others have criticized its growing use. In their view, E2EE prevents platforms and government authorities from responding to abuses and criminal activity, including child exploitation, malware, scams, and disinformation. At times, they have argued that E2EE is inherently incompatible with effective content moderation.
Computer science researchers have responded to this challenge with a suite of technologies that enable content moderation on E2EE platforms. These technologies—message franking, forward tracing, homomorphic encryption, and automated client-side scanning— preserve some of the essential privacy guarantees of E2EE while enabling the targets of abuse to detect and report it. These technical advances, however, raise legal questions. If E2EE messages are supposed to be private from a messaging platform, and the platform participates in detecting whether those messages are abusive, is that an “interception” of an “electronic communication” prohibited under the Wiretap Act?
This Article analyzes these new E2EE content moderation technologies in light of six major federal communication statutes: the Wiretap Act, the Stored Communications Act, the Pen Register Act, the Computer Fraud and Abuse Act, the Communications Assistance for Law Enforcement Act, and the PROTECT Our Children Act. While generally we find that these content moderation technologies would pass muster under these statutes, the answers are not as clearcut as one might hope. The advanced cryptographic techniques that these new content moderation strategies employ raise multiple unsettled questions of law under the communication privacy regimes considered. This legal uncertainty arises not because of the ambiguous ethical nature of the technologies themselves, but because the decades-old statutes failed to accommodate, or indeed contemplate, the innovations in cryptography that enable content moderation to coexist with encryption. To the extent that platforms are limited in their ability to moderate end-to-end encrypted content, then, those limits may arise not from the technology but from the law
The Barons and the Mob: Essays on Centralized Platforms and Decentralized Crowds
No full textThere are two unprecedented sources of power on the Internet today: centralized platforms and decentralized crowds. They feed off each other, but also struggle against each other. Their interdependence defines the modern Internet, and it defies easy classification into regulatory silos. The meme-stock investors who drove GameStop stock to absurd heights coordinated on Reddit, and poured into the market on Robinhood. Influencers make their living by making content go viral on Instagram and TikTok. Disinformation operations target Facebook groups; violent mobs coordinate on Telegram.
The essays in this collection explore the complex and interlinked dynamics of platforms and crowds. Scholars of sociology, technology, economics, and law discuss the nature of online crowds, their motivations and psychology, their influence on platforms, and platforms’ influence on them. The essays offer a primer on the essential social dynamics of online crowds, and a foundation for informed platform regulation that takes those dynamics into account.
Contributors: Jessica L. Beyer Finn Brunton Gabriella Coleman Evelyn Douek Charles Duan James Grimmelmann Nikolas Guggenberger Bing He Srijan Kumar Alice Marwick Paul Ohm Rebecca Tushnethttps://digitalcommons.wcl.american.edu/facsch_bks/1290/thumbnail.jp
The Slow Drip of Decarceration: Reversing the Flood of Mass Incarceration and Its Racist Impact
Get PDFFor the last four decades, the flood of African Americans pouring into our jails and prisons can be likened to a watershed where someone turned on a faucet full force and opened the floodgates to all the prison doors. Despite the multitudinous efforts to secure the release of people unwittingly swept up in this flood, most spending decades behind bars, their releases have been mediocre and only a few have slowly dripped towards freedom. Racism seeps into every facet of American life and nowhere is it more prevalent than in our criminal legal system and the crisis of mass incarceration. Mass incarceration and egregiously long sentences cause irreparable harm, and racial disparities exist in every stage of the criminal legal process, from policing, pretrial, prosecution, sentencing, and incarceration, through the extensive supervision period and collateral consequences that follow. African American families have been ripped apart by these nefarious wars that target African American communities and strip us of valuable resources, remove heads of households, interrupt college plans, destroy marriages, and expose children to cycles of incarceration from a young age. Traumatic and oppressive criminal legal encounters are often passed down akin to how generational wealth is passed down in other communities. Mass incarceration steals dreams and encages future aspirations.
This article examines the efforts to liberate people from overincarceration, many of whom have been detained long after rehabilitation has been achieved and well beyond the point when punishment has been satisfied. A healthy criminal legal system punishes people no longer than absolutely necessary and leaves room for transformation and rehabilitation. The U.S. criminal legal system, on the other hand, spreads the net so wide that the innocent are unwillingly snatched up and people are found to be detained well beyond the expiration of their sentence. Fundamentally, our system creates and exacerbates the very harm that its proponents allegedly seek to prevent. Substantial research has been devoted to racial disparities in the sentencing process, but little attention has been focused on the racial inequities that exist in liberating people from those unjust sentences.
This article will explore the numerous endeavors to correct the harmful impact of mass incarceration by filing petitions for clemency, parole, juvenile lifer release, and compassionate release. In each practice area, we examine the law or statute creating such relief options, review the current landscape, and analyze denials from the courts or government officials involved in the decision-making process. While other avenues for post-conviction relief are available constitutionally, statutorily, and via litigation, this article is limited to these four practice areas. Emancipating men and women from the watershed flow of incarceration and bringing them home has been a valiant but slow drip effort, especially as compared to the powerful tides that swept them up into the criminal legal system in the first place. This article proposes that the courts and other decision-makers act with a sense of urgency to decarcerate in order to uproot racist policies and practices
Navigating the Battlefield of Hunger During Armed Conflicts: Obligations, Obstacles and Solutions
Get PDFDespite sufficient global food supplies, food insecurity remains a persistent problem in many countries. In recent years, conflict has emerged as one of the key drivers of acute food insecurity, affecting hundreds of millions of people worldwide. The situation has worsened since 2022, as the impacts of the Russia-Ukraine war are felt worldwide. This Article investigates food security challenges arising from armed conflicts and proposes potential solutions to tackle these challenges. It first examines the right to food as enshrined in both international and national laws. These legal frameworks set out the rules that govern the responsibilities of States and conflicting parties as well as relief actions during armed conflicts. Through the case studies of Sudan, Somalia, Congo, Ethiopia, and Ukraine, this Article identifies two key impediments to upholding the right to food in conflict-affected areas: a state’s failure to perform its obligations and inadequate international humanitarian aid. In response, the Article proposes two solutions to mitigate conflict-induced food insecurity: strengthening accountability and justice for serious violations of international law and improving the efficiency as well as the effectiveness of international food aid programs. A long road remains ahead, but with commitment, the world can collaborate to support the realization of the right to food during armed conflicts