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Book Review: Illegal People: How Globalization Creates Migration and Criminalizes Immigrants
No full textTwo predictable narratives dominate today\u27s immigration debate. One version of the story involves “illegal aliens” who enter the country without permission, take American jobs, drain public resources, and refuse to acculturate. The other description involves “undocumented immigrants” who bravely venture through the desert in search of a better life and work hard once here. In Illegal People: How Globalization Creates Migration and Criminalizes Immigrants, author David Bacon rejects the choice between “aliens” and “immigrants” in favor of a third trope: migrants-as-cogs.
Illegal People is a welcome addition to the growing body of literature on the human consequence of globalization
Forced Federalism: States as Laboratories of Immigration Reform
No full textEver since Justice Louis Brandeis characterized states as laboratories of democracy, judges and scholars have championed the ability of states to offer a diverse array of solutions to complex national problems. Today, proponents of enhanced immigration restrictions apply the same rationale to state immigration laws. This Article challenges the assertion that states can serve as valuable laboratories of immigration reform.States that enact their own immigration laws do not internalize costs or yield replicable results—two conditions needed for viable experimentation. When states internalize costs, other jurisdictions can effectively evaluate outcomes. Replication occurs when states take diverse approaches to common problems. Unfortunately, current state immigration laws do not meet these criteria because states operate in a system of “forced federalism”: a division of power between the two levels of government in which subnational jurisdictions attempt to force the federal government to accept state-defined immigration enforcement schemes. But as states thrust their chosen levels of immigration control on the federal government, their potential to innovate on immigration matters is quite restricted. Essentially, forced federalism limits states to a narrow set of enforcement decisions based on federally defined norms—far from the type of diverse testing associated with true innovation and replication.Today’s state immigration experiments also fail to internalize costs—another condition of successful subnational tests. Restrictionist states that encourage unauthorized immigrants to resettle in other jurisdictions export the economic damage they claim illegal immigration causes. In addition to economic spillovers, laboratory states export social costs to the nation by fundamentally altering the concept of a shared national identity. For example, when immigrants flee restrictionist states in order to avoid racial profiling or harassment, the national commitment to values such as egalitarianism and nondiscrimination is weakened. These harms are not confined to restrictionist states alone but are felt by the nation as a whole. Not all subjects are ripe for local experimentation and not all tests produce valid results. Despite the appealing image of states as laboratories, today’s immigration experiments will not advance the nation’s ongoing search for sounder immigration policies
Gig-Dependence: Finding the Real Independent Contractors of Platform Work
No full textPlatforms such as Uber and TaskRabbit avoid employment obligations by categorizing their workers as “independent contractors.” Declining to follow overtime, antidiscrimination, and other workplace mandates, these platforms claim to employ no one. Applied on a grand scale, the entire project of platform labor threatens to destabilize our contemporary understanding of employment law.
But not all platform workers possess the characteristics of genuine independent contractors, as courts first envisioned that category. Judges did not originally formulate the independent contractor distinction to define the boundaries of workplace protections; rather, the independent contractor classification was designed to limit the liability of masters for their servants’ torts. Courts in these early cases identified certain workers—independent contractors—who possessed the skill, autonomy, and financial strength to pay for their own tortious misconduct and, accordingly, stand alone in the marketplace.
Today, when judges evaluate whether gig workers are “independent contractors,” they should look for the same hallmarks of commercial self-determination that originally prompted the independent contractor distinction. Fortunately, a few recent judicial decisions have embraced a simplified standard—the so-called “ABC test”—to assess whether contemporary workers are bona fide independent contractors. In contrast to more popular tests that have produced indeterminate results, the ABC standard begins with the presumption that workers who provide labor to firms are employees. If businesses want to overcome this presumption, they must prove three separate elements to show that their workers possess the marketplace strength of legitimate independent contractors. By using the ABC test to sort workers based on their economic autonomy, courts can more effectively distinguish between normal employees and the genuine independent contractors of platform work
Forced Federalism: States as Laboratories of Immigration Reform
Get PDFEver since Justice Louis Brandeis characterized states as laboratories of democracy, judges and scholars have championed the ability of states to offer a diverse array of solutions to complex national problems. Today, proponents of enhanced immigration restrictions apply the same rationale to state immigration laws. This Article challenges the assertion that states can serve as valuable laboratories of immigration reform.States that enact their own immigration laws do not internalize costs or yield replicable results—two conditions needed for viable experimentation. When states internalize costs, other jurisdictions can effectively evaluate outcomes. Replication occurs when states take diverse approaches to common problems. Unfortunately, current state immigration laws do not meet these criteria because states operate in a system of “forced federalism”: a division of power between the two levels of government in which subnational jurisdictions attempt to force the federal government to accept state-defined immigration enforcement schemes. But as states thrust their chosen levels of immigration control on the federal government, their potential to innovate on immigration matters is quite restricted. Essentially, forced federalism limits states to a narrow set of enforcement decisions based on federally defined norms—far from the type of diverse testing associated with true innovation and replication.Today’s state immigration experiments also fail to internalize costs—another condition of successful subnational tests. Restrictionist states that encourage unauthorized immigrants to resettle in other jurisdictions export the economic damage they claim illegal immigration causes. In addition to economic spillovers, laboratory states export social costs to the nation by fundamentally altering the concept of a shared national identity. For example, when immigrants flee restrictionist states in order to avoid racial profiling or harassment, the national commitment to values such as egalitarianism and nondiscrimination is weakened. These harms are not confined to restrictionist states alone but are felt by the nation as a whole. Not all subjects are ripe for local experimentation and not all tests produce valid results. Despite the appealing image of states as laboratories, today’s immigration experiments will not advance the nation’s ongoing search for sounder immigration policies
Redefining the Rights of Undocumented Workers
Get PDFShould a nation extend legal rights to those who enter the country illegally? The Supreme Court recently addressed this question when it held that unauthorized immigrants who are fired illegally for unionizing cannot recover monetary remedies. This has led to a significant decline in employment protections for unauthorized immigrants beyond the unionized sector. For example, some courts now question whether unauthorized immigrants can receive full remedies for sexual harassment, workplace discrimination, or on-the-job injuries.
Scholars have criticized these losses but have yet to formulate a coherent framework for evaluating the employment rights of unauthorized immigrants. This article does so by distilling and applying several core principles at issue when employment laws conflict with immigration laws. I begin by explaining how the text and purpose of selected immigration and employment statutes show that Congress never intended to restrict unauthorized immigrants’ employment rights. Remedial restrictions not only harm the workplace protections at issue, they fail to discourage illegal immigration. Thus, neither legislative intent nor national immigration goals justify limiting the workplace remedies available to unauthorized immigrants.
Although the future rights of unauthorized workers will turn partly on the issues of statutory purpose and immigration policy discussed in the early sections of the article, equally important are the consequences of diminished rights. Accordingly, the article concludes by explaining why restricting workplace protections based on status harms citizens as well as immigrants. Cunningham-Parmeter contends that employment protections are “rights of partial inclusion” that reflect a distinctive sphere - the workplace - where unauthorized immigrants should be placed on par with citizens in pursuing collective interests. In contrast to arguments that favor limiting resources to lawful residents, partial inclusion explains how employment protections can effectively preserve national identity while simultaneously enhancing unauthorized immigrants’ incentives for social investment. In doing so, partial inclusion furthers the community’s self-definition, while providing unauthorized immigrants with a sense of belonging in a world increasingly focused on their exclusion
Fear of Discovery: Immigrant Workers and the Fifth Amendment
No full textDo you have papers? Immigrant workers increasingly face this question in civil litigation. Citing the Supreme Court\u27s decision in Hoffman Plastic Compounds, Inc. v. NLRB, which stated that undocumented immigrants cannot recover monetary damages for labor law violations, employers argue that many employment protections no longer apply to this group of workers. Consistent with this argument, employers pose immigration-related questions during discovery, causing an already uneasy class of plaintiffs to cease suing employers in order to avoid answering questions about their immigration status. Professor Cunningham-Parmeter explains how status-based discovery not only inhibits immigrant employees from vindicating their workplace rights but also undermines the employment protections at issue. Without an effective method for controlling the flood of status-based inquiries born of Hoffman, immigrants will continue to opt-out of civil litigation, unwilling to assert even the strongest claims for workplace violations.
Cunningham-Parmeter argues that immigrants can largely combat the intimidating effects of status-based discovery by properly invoking their privilege against self-incrimination. He contends that the policies in support of extending the privilege to the civil context play a prominent role in immigrant-initiated litigation. Civil libertarian values traditionally associated with the privilege such as fairness, privacy, and the prevention of cruelty are threatened when courts grant defendants unfettered access to status-based discovery. After outlining the policies and principles of the privilege, Cunningham-Parmeter explains the process and potential consequences of invocation, including the adverse inferences a court may draw from the witness\u27s silence. Cunningham-Parmeter outlines factors counseling against adverse inferences such as the unreliability of silence and the irrelevance of immigration status to most employment claims. Even if courts infer that silent plaintiffs are undocumented immigrants, Cunningham-Parmeter argues the outcome would improve the current amorphous state of affairs; following Hoffman courts have failed to clearly delineate the employment rights and remedies available to unauthorized immigrants. The inference analysis forces courts to declare whether immigration status matters to the claims at issue. Thus, the privilege serves both protective and explanatory functions by guarding the witness\u27s status-based information, while requiring a determination of immigrant-based employment rights in the post-Hoffman era
The Sexual Harassment Loophole
Get PDFEmployers rarely pay for sexual harassment. The #MeToo movement has not changed this legal reality. Title VII of the Civil Rights Act of 1964—the nation’s primary workplace antidiscrimination law—contains a harassment loophole. Harassment is the only kind of Title VII violation that allows employers to avoid liability if they offer training and reporting opportunities to workers. In contrast, employers must automatically pay for all other Title VII claims such as discriminatory firings, even when firms have trained their employees not to discriminate. This Article makes the case for closing the loophole by aligning harassment liability with other Title VII offenses and holding employers automatically responsible for all proven incidents of workplace harassment.
When the Supreme Court created the harassment loophole years ago, it assumed that employers would enact workplace measures to effectively deter harassment. Unfortunately, the #MeToo movement has convincingly demonstrated that the problem of workplace harassment remains widespread despite decades of harassment training. Even though firms express a rhetorical commitment to antiharassment values, many employers engage only in cosmetic compliance and fail to take meaningful steps to actually curb harassment. Closing the harassment loophole would not only represent a tangible legal solution to the ongoing problem of harassment, it would also advance the goals of compensation, deterrence, and cost-spreading that lie at the core of Title VII. Just as companies must pay for all other Title VII violations—regardless of formal policies that prohibit misconduct—courts should hold firms strictly accountable for sexual harassment
Forced Federalism: States as Laboratories of Immigration Reform
No full textThis Article questions the experimental value of state immigration laws. Analyzing the Supreme Court’s major decisions in this area, including Chamber of Commerce v. Whiting, the Article explains why state immigration laws fail to satisfy two necessary conditions of effective experimentation: internalization and replication. When states internalize costs, other jurisdictions can effectively evaluate outcomes. Replication occurs when states take diverse approaches to common problems. Unfortunately, state immigration laws do not meet these criteria because states operate in a system of “forced federalism”: a division of power between the two levels of government in which subnational jurisdictions attempt to force the federal government to accept state-defined immigration enforcement schemes. But as states thrust their chosen levels of immigration control on the federal government, their potential to innovate on immigration matters is quite restricted. Essentially, forced federalism limits states to a narrow set of enforcement decisions based on federally defined norms — far from the type of diverse testing associated with true innovation.
Today’s state immigration laws also fail to internalize costs — another condition of successful subnational tests. Restrictionist states that encourage unauthorized immigrants to resettle in other jurisdictions export the economic damage they claim illegal immigration causes. In addition to economic spillovers, laboratory states export social costs to the nation by fundamentally altering the concept of a shared national identity. For example, when immigrants flee restrictionist states in order to avoid racial profiling or harassment, the national commitment to values such as egalitarianism and nondiscrimination is weakened. These harms are not confined to restrictionist states but are felt by the nation as a whole.
Not all subjects are ripe for local experimentation and not all tests produce valid results. Despite the appealing image of states as laboratories, today’s immigration experiments will not advance the nation’s ongoing search for sounder immigration policies
(Un)Equal Protection: Why Gender Equality Depends on Discrimination
Get PDFMost accounts of the Supreme Court’s equal protection jurisprudence describe the Court’s firm opposition to sex discrimination. But while the Court famously invalidated several sex-based laws at the end of the twentieth century, it also issued many other, less-celebrated decisions that sanctioned sex-specific classifications in some circumstances. Examining these long-ignored cases that approved of sex discrimination, this Article explains how the Court’s rulings in this area have often rejected the principle of formal equality in favor of broader antisubordination concerns. Outlining a new model of equal protection that authorizes certain forms of sex discrimination, (Un)Equal Protection advocates for one particular discriminatory policy that could dramatically promote gender equality in the decades to come. Fatherhood bonuses— laws that give families additional parental leave when fathers stay at home with their newborns—have the potential to drastically reorder gendered divisions of labor and expand women’s workplace opportunities. Countries that have experimented with fatherhood bonuses have seen women with children spend more time in paid work, advance in their careers, and earn higher wages. Applying these international models to the American context, this Article explains why fatherhood bonuses would fit comfortably within our constitutional framework, which authorizes discriminatory policies when such policies support women’s public participation. (Un)Equal Protection concludes by proposing a model for fatherhood bonuses in the United States that would encourage more men to perform care work, thereby advancing the goal of gender equality for both sexes
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