BookTalk

  • October 22, 2015
    BookTalk
    The New Immigration Federalism
    By: 
    Pratheepan Gulasekaram and S. Karthick Ramakrishnan

    by Pratheepan Gulasekaram and S. Karthick Ramakrishnan. Gulasekaram is an Associate Professor of Law at Santa Clara Law, and Ramakrishnan is a Professor of Public Policy and Political Science and Association Dean of the School of Public Policy at the University of California, Riverside.

    The years after 9/11 have witnessed a period of great ferment and transformation with respect to immigration and federalism. This era, characterized by an extended federal legislative gridlock on immigration, has been one of unprecedented levels of state and local policymaking on the subject. The past several years have witnessed a flurry of restrictionist policies, like Arizona’s SB 1070 and its copycats, employer verification statutes, and local agreements with the federal government to help enforce immigration laws. On the integrationist side, states and localities have implemented policies to resist their complicity in federal immigration enforcement, provide education benefits, and allow access to a variety of social services.

    What are the causes of this development, in terms of background factors and more proximate causes? And, what are the consequences of these new developments in immigration federalism, particularly with respect to our understanding of the role of states and localities in our constitutional order? Using empirical data and a multi-disciplinary approach, our book answers these central questions and provides several key insights for the future development of state and local policy and federal immigration reform.

    We first situate the current flurry of subfederal legislation in the larger historical context of immigration federalism in the United States, showing how Congress and the Supreme Court have played key roles in particular historical moments, to either permit or limit state involvement in regulating immigration. Indeed, we make the case that this contemporary period represents an emerging phase in the still-evolving “third era” of immigration federalism that began in 1965, an era that is distinct from the first century of immigration law that was state-centric, and the second century of immigration law where the federal government became dominant. In the past fifty years, Congress waded explicitly into defining what states can do with respect to regulating the welfare and livelihood of immigrants, and states attempted significant controls over the undocumented population. We end our historical overview with the period immediately preceding September 11, 2001, discussing in detail California’s Proposition 187 in 1994, the predecessor to the several state and local restrictive efforts that dominated headlines over the past ten years.

    Having provided this context, we then explain the various types of laws that states and localities have passed during this new period of immigration federalism. In Chapter 3, we provide a description and classification of key types of restrictionist laws at the state and local level that were dominant from 2004 through 2012, such as enforcement laws, employer sanctions provisions, and rental ordinances aimed at undocumented immigrants. We then examine the causes for this spike in restrictionist legislation, and ask why it was occurring in some places but not in others. Using original empirical analysis, we reject the conventional narrative about these restrictionist laws, which popularly held that a combination of demographic pressures from new patterns of unauthorized migration, combined with federal inaction, created irresistible pressure for states and localities to act. Our empirical analysis not only refutes this generally-accepted (but mistaken) explanation, but in doing so reveals the most salient factor explaining the proliferation of restrictionist laws across selected jurisdictions:  political partisanship.  Put simply, we show that demography is not destiny, but politics may be.

  • July 1, 2015
    BookTalk
    Under The Bus
    How Working Women Are Being Run Over
    By: 
    Caroline Fredrickson

    by Caroline Fredrickson, President, American Constitution Society for Law & Policy

    When she was 18, my great-grandmother Mathilda Olafsson left Sweden to escape poverty, sailing alone in steerage to Boston where she was lucky to find a job as a maid. Like countless immigrant women, Mathilda was subject to sexual harassment, underpayment, and abusively long hours. As she endured backbreaking labor and meals consisting of her employers’ scraps, she hoarded her meager earnings, working toward a better life.

    Growing up, I found Mathilda’s story ‒ so far in the past, so different from today ‒ inspirational. But sadly, even after the enactment of various labor laws and worker protections, many working women are still enduring the abuses that my great-grandmother suffered. The truth is, domestic workers and workers in other undervalued, female-dominated professions have little more legal protection than Mathilda and her peers had.

    Americans tend to think working conditions aren't so bad today; the U.S. has prohibited discrimination against women, mandated equal pay for equal work, and adopted family leave legislation. But few Americans know that the progressive laws designed to improve wages and working conditions left out large portions of the working population. That’s because during the New Deal, President Franklin Roosevelt struck bargains with “Dixiecrats,” trading the rights of African American and female workers for votes in support of a minimum wage, overtime, and the right to join a union.

    As a result, certain workers – including nannies, housekeepers, farmworkers, small business employees, part-time workers, independent contractors, and temporary workers – have almost zero protection under U.S. law. Not coincidentally, these workers are disproportionately female and people of color.

  • June 23, 2015
    BookTalk
    The Grasping Hand
    "Kelo v. City of New Lond" and the Limits of Eminent Domain
    By: 
    Ilya Somin

    by Ilya Somin, law professor at George Mason University and an adjunct scholar at the Cato Institute. He writes regularly for the popular Volokh Conspiracy Blog, affiliated with The Washington Post.

    Ten years ago today, in Kelo v. City of New London, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner for purposes of promoting “economic development.” Although the Fifth Amendment only permits the taking of private property for  “public use,” the Court ruled that  virtually any potential public benefit qualifies as such, even if the government fails to prove that the supposed benefit will ever actually materialize. My new book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, is the first work by a legal scholar about one of the Supreme Court’s most controversial modern decisions.

    In the book I argue that Kelo was a grave error. In chapters 2 and 3, I discuss why economic development and “blight" condemnations that transfer property to private interests, are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. Though the ruling was consistent with previous precedents, the Supreme Court can and should have either overruled those badly flawed prior decisions or at least limited their scope (as Justice Sandra Day O’Connor advocated in her dissent).

    These types of condemnations victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Since the Supreme Court first ruled that a “public use” can be almost anything the government says it is, hundreds of thousands of people have lost homes or small businesses to  blight and economic development takings. Most were poor, racial or ethnic minorities, or lacking in political influence. Kelo itself exemplifies some of these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them, including Pfizer, an influential pharmaceutical firm that expected to benefit from the condemnations.  Moreover, the city's poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. The only “development” produced so far consists of some improvised shelters constructed for the cats, by neighborhood residents.
     
    The Supreme Court's unpopular ruling triggered an unprecedented political reaction. Polls showed that over 80 percent of Americans oppose the ruling, a sentiment that cut across partisan, ideological, and racial lines. This is one of the rare issues where Ralph Nader, Rush Limbaugh, and the NAACP, were all on the same side.

  • May 19, 2015
    BookTalk
    The Trouble with Lawyers
    By: 
    Deborah L. Rhode

    by Deborah L. Rhode, the Ernest W. McFarland Professor of Law, the director of the Center on the Legal Profession, and the director of the Program in Law and Social Entrepreneurship at Stanford University. Her upcoming book, The Trouble with Lawyers, will be published by Oxford University Press in June 2015.

    These are not the best of times for American lawyers. Less than a fifth of Americans rate the honesty and ethical standards of lawyers as very high or high, ranking them just above insurance salespeople. Competition and commercialization in the profession are on the rise, while civility and collegiality appear headed in the opposite direction. Paradoxically, the nation suffers from an oversupply of lawyers and an undersupply of legal services for people with low and moderate incomes.

    This is a timely moment for a comprehensive account of challenges facing the American bar. The Trouble with Lawyers explores trends in the legal market that have posed increasing problems for the profession and the public that relies on their services. The book's central argument is that recent changes in legal education and legal practice have highlighted longstanding problems in the structure of bar regulatory processes and the priorities of lawyers and law firms.

    Part of the problem is the relentless preoccupation with short-term profits that drives law firm decision making. The priority of profit is responsible for the escalation in billable hours over the last several decades, and the price is paid in quality of life. Most lawyers report that they do not have sufficient time for themselves and their families, and most are unable to devote even an hour a week to pro bono service. These trends have taken a toll in lawyers' workplace satisfaction. Law does not rank among the top twelve professions for satisfaction and a majority of lawyers would choose a different career if they had to make the decision again. Lawyers also have disproportionately high rates of depression, substance abuse, and related disorders. There is, in short, some room for improvement and the solution lies in making lawyers more informed about the sources of professional fulfillment and more proactive in shaping workplaces to meet their needs. 

  • May 18, 2015
    BookTalk
    Guns Across America
    Reconciling Gun Rules and Rights
    By: 
    Robert J. Spitzer

    by Robert J. Spitzer. He is the Distinguished Service Professor and Chair of the Political Science Department at SUNY Cortland. Spitzer is the author most recently of Guns Across America: Reconciling Gun Rules and Rights, published by Oxford University Press.

    The contemporary American gun debate has been cast as a battle between two opposing, mutually exclusive principles: gun laws and gun rights. The struggle between these two is invariably portrayed as a zero-sum game—that the gain of one is a loss for the other. Yet our own history tells a different story, one that contains at least two important lessons. The first is that, throughout most of American history, gun rights and gun laws existed hand in hand. The second is that, in many respects, guns were more heavily regulated in our country’s first 300 years than in the last thirty years.

    While gun ownership is as old as America, so are gun laws. Early gun laws covered every imaginable type of regulation, even including registration and outright gun bans. In fact, the first “gun grabbers” were not 1960’s Chablis-drinking liberals, but rum-guzzling pioneers of the 1600s. Early gun laws restricted gun ownership and possession to Native Americans, slaves, indentured servants, vagrants, non-Protestants, those who refused to swear an oath of loyalty to the government, felons, foreigners and numerous recreational restrictions. Early laws also regulated the manufacture, inspection, and sale of firearms, as well as gun storage and discharge restrictions. Others prohibited not only the firing of firearms in or near towns, but firing after dark, on Sundays, in public places, near roads and bridges or while under the influence of alcohol.

    Among the earliest and most prolific laws were those restricting or barring the carrying of concealed weapons (these restrictions typically applied to pistols as well as certain types of knives). As early as 1686, New Jersey barred the wearing of concealable weapons in public because, according to the law, “it induced great Fear and Quarrels.” In 1837, Georgia made it illegal “to sell. . .or to keep or have about their persons” pistols or other listed weapons. The restriction applied both to merchants and private citizens, and its stated purpose was “to guard and protect the citizens of this State against the unwarrantable and too prevalent use of deadly weapons.” By the end of the 18th century, four states had enacted gun carry restrictions. In the 19th century, 37 states did so and another four states followed suit in the early 20th century.