Park on Self-Deportation in the United States

My Georgetown Law colleague K-Sue Park has posted Self-Deportation Nation, which appeared in the Harvard Law Review (132 (2019): 1878-1941:

“Self-deportation” is a concept to explain the removal strategy of making life so unbearable for a group that its members will leave a place. The term is strongly associated with recent state and municipal attempts to “attack every aspect of an illegal alien’s life,” including the ability to find employment and housing, drive a vehicle, make contracts, and attend school. However, self-deportation has a longer history, one that predates and made possible the establishment of the United States. As this Article shows, American colonists pursued this indirect approach to remove native peoples as a prerequisite for establishing and growing their settlements. The new nation then adopted this approach to Indian removal and debated using self-deportation to remove freed slaves; later, states and municipalities embraced self-deportation to keep blacks out of their jurisdictions and drive out the Chinese. After the creation of the individual deportation system, the logic of self-deportation began to work through the threat of direct deportation. This threat burgeoned with Congress’s expansion of the grounds of deportability during the twentieth century and affects the lives of an estimated 22 million unauthorized persons in the United States today.

This Article examines the mechanics of self-deportation and tracks the policy’s development through its application to groups unwanted as members of the American polity. The approach works through a delegation of power to public and private entities who create subordinating conditions for a targeted group. Governments have long used preemption as a tool to limit the power they cede to these entities. In the United States, this pattern of preemption establishes federal supremacy in the arena of removal: Cyclically, courts have struck down state and municipal attempts to adopt independent self-deportation regimes, and each time, the executive and legislative branches have responded by building up the direct deportation system. The history of self-deportation shows that the specific property interests driving this approach to removal shifted after abolition, from taking control of lands to controlling labor by placing conditions upon presence.

This Article identifies subordination as a primary mode of regulating migration in America, which direct deportations both supplement and fuel. It highlights the role that this approach to removal has played in producing the landscape of uneven racial distributions of power and property that is the present context in which it works. It shows that recognizing self-deportation and its relationship to the direct deportation system is critical for understanding the dynamics of immigration law and policy as a whole.

--Dan Ernst

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More Pictures of Maria-Alexandra of Romania, the Newest Addition to the Royal Family

 

Nicholas, Alina, and Maria of Romania.
Photograph (c) David Niviere/Abaca/Sipa USA/Sip

These photographs of Nicholas of Romania, his wife Alina-Maria, and their daughter Maria-Alexandra were taken at the Domain of the Manasia Estate on 22 November by David Nivière. Maria-Alexandra was born at Bucharest on 7 November. The little one is a granddaughter of Princess Helen of Romania, a great-granddaughter of King Michael of Romania, a great-great-great-granddaughter of Duke Roberto I of Parma, a great-great-great-great-granddaughter of King Miguel I of Portugal, and a great-great-great-great-great-granddaughter of Queen Victoria of the United Kingdom. 

Photograph (c) David Niviere/Abaca/Sipa USA/Sip

Photograph (c) David Niviere/Abaca/Sipa USA/Sip

Photograph (c) David Niviere/Abaca/Sipa USA/Sip

Photograph (c) David Niviere/Abaca/Sipa USA/Sip

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Berlin Sun

Berlin Sun

Modeling Fall 2020

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Bristow on the Jackson State shootings

 Nancy K. Bristow (University of Puget Sound) has published Steeped in the Blood of Racism: Black Power, Law and Order, and the 1970 Shootings at Jackson State College with Oxford University Press. From the publisher: 

Minutes after midnight on May 15, 1970, white members of the Jackson city police and the Mississippi Highway Patrol opened fire on young people in front of a women's dormitory at Jackson State College, a historically black college in Jackson, Mississippi, discharging "buckshot, rifle slugs, a submachine gun, carbines with military ammunition, and two 30.06 rifles loaded with armor-piercing bullets." Twenty-eight seconds later two young people lay dead, another 12 injured. Taking place just ten days after the killings at Kent State, the attack at Jackson State never garnered the same level of national attention and was chronically misunderstood as similar in cause. This book reclaims this story and situates it in the broader history of the struggle for African American freedom in the civil rights and black power eras.

The book explores the essential role of white supremacy in causing the shootings and shaping the aftermath. By 1970, even historically conservative campuses such as Jackson State, where an all-white Board of Trustees of Institutions of Higher Learning had long exercised its power to control student behavior, were beginning to feel the impact of the movements for African American freedom. Though most of the students at Jackson State remained focused not on activism but their educations, racial consciousness was taking hold. It was this campus police attacked. Acting on racial animus and with impunity, the shootings reflected both traditional patterns of repression and the new logic and rhetoric of "law and order," with its thinly veiled racial coding.

In the aftermath, the victims and their survivors struggled unsuccessfully to find justice. Despite multiple investigative commissions, two grand juries and a civil suit brought by students and the families of the dead, the law and order narrative proved too powerful. No officers were charged, no restitution was paid, and no apologies were offered. The shootings were soon largely forgotten except among the local African American community, the injured victimized once more by historical amnesia born of the unwillingness to acknowledge the essential role of race in causing the violence.

Praise for the book:

 "Steeped in the Blood of Racism is a luminous revelation. Nancy K. Bristow's groundbreaking book represents a remarkable and long overdue history of the Jackson State shootings and their critical importance to the way we understand the Black Power era and our own. A must read." - Peniel E. Joseph

"In this meticulous reconstruction of the May 15, 1970 shooting at Jackson State University in Mississippi, Nancy Bristow offers a compelling account of the events of that day and their subsequent erasure from American national memory. Mischaracterized as another 'Kent State' or dismissed through a dangerous law and order narrative, the shootings at Jackson State were instead part of a much longer history of white supremacist violence directed at the black community. Steeped in the Blood of Racism is an important book that demonstrates why this shooting has been so easily forgotten and why it is so important that it be remembered." - Renee Romano

"Finally we have an honest, deeply researched, searing account of the police killings of two Black students at Jackson State. Yes, Mississippi Goddamn! But sadly, the impunity of law enforcement for antiblack violence remains a nationwide crisis." - Martha Biondi

Further information is available here. You can also read the author's blogpost about the book on the OUP website here.

--Mitra Sharafi

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Lian's "Stereoscopic Law"

Alexander Lian has just published Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press):

In this unique book, Alexander Lian, a practicing commercial litigator, advances the thesis that the most famous article in American jurisprudence, Oliver Wendell Holmes's “The Path of the Law,” presents Holmes's leading ideas on legal education. Through meticulous analysis, Lian explores Holmes's fundamental ideas on law and its study. He puts “The Path of the Law” within the trajectory of Holmes's jurisprudence, from earliest scholarship to The Common Law to the occasional pieces Holmes wrote or delivered after joining the U.S. Supreme Court. Lian takes a close look at the reactions “The Path of the Law” has evoked, both positive and negative, and restates the essay's core teachings for today's legal educators. Lian convincingly shows that Holmes's “theory of legal study” broke down artificial barriers between theory and practice. For contemporary legal educators, Stereoscopic Law reformulates Holmes's fundamental message that the law must been seen and taught three-dimensionally.

Some endorsements:

The Path of the Law has attracted and puzzled scholars for a very long time. Just what is it about?  Alexander Lian has an answer: It is about legal education broadly understood. He demonstrates this proposition by carefully situating the piece in Holmes' many publications and in the thought of others of his time and acquaintance. The result is always interesting, somehow both analytically precise and neither hurried nor dense. Read the book slowly and enjoy it. Whether in the end one agrees with Lian's conclusion, one cannot fail to come away with a better understanding of Holmes, his times and the problems of becoming educated in law. 

John Henry Schlegel, Floyd H. and Hilda L. Hurst Faculty Scholar, University at Buffalo School of Law

In this carefully researched, engagingly written, and highly original book, Alexander Lian draws on the voluminous scholarship on Holmes and the experience of a practicing attorney, who is trained in American intellectual history, to formulate a compelling theoretical foundation for legal education and legal practice rooted in Holmes's writings. 

Bruce Kimball, co-author of The Intellectual Sword: Harvard Law School, the Second Century

Alexander Lian brings a key insight to our understanding of Holmes's famed Path of the Law article: Holmes presented it as a guide to law students in their study of law rather than as a commentary on the practice of law. Building on this insight, Lian offers an original, enlightening, and comprehensive reinterpretation of Holmes. Most important, we must not forget that Holmes approached his audience as a lawyer and judge, not as a legal academic. As such, Holmes presented the law in three dimensions, not as a flat or two-dimensional series of rules, but as a deeply historical enterprise. 

Stephen M. Feldman, Jerry H. Housel/Carl F. Arnold Distinguished Professor of Law, University of Wyoming

 Alexander Lian's new book about Oliver Wendell Holmes is a magnificent achievement. A major contribution to the Holmes literature, Stereoscopic Law looks at its subject in an original, revealing way: both with a wide angle and a zoom lens. With Holmes's famous lecture "The Path of the Law" as a springboard, Lian explores and probes Holmes's thinking as a matter of legal philosophy as well as Holmes's biographical and intellectual development. Stereoscopic Law, written accessibly and provocatively, is sure to push Holmes studies in a new, fruitful direction. It should be read and pondered by anyone interested in the history of ideas and the life of the mind. 

Daniel J. Kornstein, lawyer and author of The Second Greatest American

--Dan Ernst

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RECOLLECTIONS: The Memoirs of Victoria, Dowager Marchioness of Milford Haven Starts Selling on AMAZON today!

Our next book, RECOLLECTIONS by Victoria Marchioness of Milford Haven is selling now!

Clients can either purchase their copy at our website at http://eurohistory.com or they can purchase the book on AMAZON starting today!

To purchase at EUROHISTORY:

Purchase RECOLLECTIONS at Eurohistory.com

To Purchase on AMAZON:

Purchase RECOLLECTIONS on AMAZON

Expanded and annotated by Ilana D. Miller and Arturo E. Beéche the book contains the memoirs of one of the most intriguing and exceptional granddaughters of Queen Victoria: Victoria, Dowager Marchioness of Milford Haven. 

Born Princess Victoria of Hesse and by Rhine in 1863, she became one of her English grandmother's most frequent correspondents, as well as a surrogate mother to her younger siblings after the untimely death in 1878 of their mother, Grand Duchess Alice of Hesse. Married in 1884 to her father's first cousin, Prince Louis of Battenberg, Victoria soon became a witness to some of the most momentous historical episodes of her lifetime. Her thoughts (open, frank, no-nonsense, clear) are to be found inside the 280-page book containing her memoirs, her "recollections." The book has been handsomely illustrated with nearly 400 exquisite images sourced from various archives, family collections, as well as the incomparably vast EUROHISTORY Royal Photographic Archive.

You can also print the order form below and send to us:

EUROHISTORY

6300 Kensington Avenue

East Richmond Heights, CA 94805

USA

Phone: 510.236.1730

Email: books@eurohistory.com / eurohistory@comcast.net / aebeeche@mac.com

http://www.eurohistory.com

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Clio@Themis: The Relaunch

We are grateful to David Sugarman for word that Clio @ Themis, the on-line review of legal history, has a new website, which makes current and previously published articles more accessible. From the website:

Founded in 2009 at the initiative of several researchers from the Centre national de la recherche scientifique, joined by a number of University lecturers, Clio@Themis contributes to the development of debates and scientific exchanges with regard to the history of law. Its creation in France is based on enlargement and enrichment of the traditional perspectives of the legal history. Indeed, the history of law, through more and more varied types of research, concerns now all periods, from Antiquity to the beginning of the 21th century. This broadening of perspectives is not only in a chronological context, but also a geographical one: today, the subject of the history of law is necessarily European, comparative, and reacts to the phenomena of legal globalisation.

As a consequence, far from keeping legal history locked in a complacent study of the past, this journal aims to be an instrument for the critical understanding of the present. It does not intend to separate legal phenomena from social phenomena. In addition to questions about socio-economic factors in the production and reception of the law, it is increasingly important to consider reflections on judicial culture, the formation and circulation of ideas and judicial concepts, practices and representation.

History, Law, Society: these three ideas express, without any doctrinal constraint, our usage of historical method, our focus on legal subjects and our embrace of social science in the broadest sense.

–Dan Ernst

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Rogers's "Workers against the City"

Donald W. Rogers, a lecturer in the Department of History at Central Connecticut State University, has published Workers against the City: The Fight for Free Speech in Hague v. CIO (University of Illinois Press, 2020):

The 1939 U.S. Supreme Court decision Hague v. CIO constitutionalized the fundamental right of Americans, including labor organizers, to assemble and speak in public places. Donald W. Rogers eschews the prevailing view of the case as simply a morality play pitting Jersey City, New Jersey, political boss Frank Hague against the Committee for Industrial Organization (CIO) and allied civil libertarians. Instead, he utilizes untapped archives and evidence to review Hague's story from street and media battles to district court and Supreme Court deliberations, illuminating trial proceedings from both worker and city perspectives for the first time. His analysis reveals how transformative New Deal-era developments in municipal governance, union organizing, labor politics and constitutional law dominated the conflict, and how assembly and speech rights changed according to judges' reaction to this historical situation.

Clear-eyed and comprehensive, Workers against the City revises the view of a milestone case that continues to affect Americans' constitutional rights today.

Here is an endorsement:

"Skillfully blending the histories of American civil liberties, organized labor, and urban politics, Rogers shows us how a complex set of forces has shaped and limited the rights of modern Americans to assemble and speak their minds in public."--James J. Connolly, author of An Elusive Unity: Urban Democracy and Machine Politics in Industrializing America

–Dan Ernst

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Eating in Moderation Helps Me Maintain a Healthy Lifestyle

Living a healthy lifestyle is not about unsustainable restrictive diets but allowing for some moderation. 

It's just not realistic to eliminate a favorite food forever from your diet. Nothing feels good or normal about that.

I consider my occasional splurges as part of my healthy eating and not even cheats. Because eating them in moderation is an enjoyable experience. It's called living a balanced healthy life.

I don't believe having a fresh-baked brownie now and then is cheating on my fitness program. I follow a 80/20 rule consuming a wide variety of good carbs, lean proteins, and healthy fats 80% of the time. I allow for 20% indulgence like a glass of wine or dark chocolate. These small treats won't derail my efforts as many of us are taught to believe. It's what you do consistently that defines what your body looks like.

I do feel indulgences need to be quality. I don't waste time on packaged process junk foods but will splurge on home-baked goods made with real ingredients. I also enjoy a good burger, gourmet pizza, and frozen yogurt with toppings. When I treat myself, I still want to be in control of the quality of the food. I also don't believe in having a free ticket to binge on thousands of calories on splurge day. That is defeating the purpose of a splurge meal or day. If I want a burger and fries, I enjoy the meal and move on.

I don't plan a treat day either but listen to my cravings. I work hard, eat clean 80 to 90 percent of the time and know eating a slice of apple pie Ala mode is not going to break my fitness bank. I will savor every bite of that indulgence without guilt. 

Food Considerations

Having treat meals is always a personal choice but sometimes there are physiological and psychological issues to consider. In these scenarios, eating certain foods can sometimes require expert advice before including them in your nutrition plan. The following list includes a few examples:

• Those suffering from emotional eating disorders may need to seek the guidance of a registered dietitian specializing in disordered eating.

• Some people have an unhealthy relationship with food and are triggered to use food for comfort or soothing emotional upset. Seeking the guidance of a qualified therapist or dietitian may be helpful in these circumstances.  

• Other people may have diagnosed medical conditions like Chron's Disease, Diabetes, or Celiac Disease where food intake may require being under the care of a physician. 

Healthy Balance

I eat in moderation for balance in my healthy lifestyle. Thinking we can sustain on boiled fish and broccoli is not realistic. I enjoy some sort of sweet treat or fun meal a couple of times weekly and still maintain a healthy body. It really comes down to how you apply to eat in moderation. It's not a reward for being deprived all week or for completing a hard workout.

Living a healthy lifestyle shouldn't feel like a burden or deprivation. If that's the case, a review of your current nutrition plan is advisable. An unsustainable nutrition plan will cause many of us to return to unhealthy eating habits. Life is too short not to eat healthily and it's also too short not to enjoy some splurges along the way.

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Giovanopoulou on Pragmatic Liberalism and US Foreign Policy

Afroditi Giovanopoulou, a doctoral candidate, Columbia University, has posted Pragmatic Legalism: Revisiting America's Order after World War II, which is forthcoming in the Harvard International Law Journal 62 (2021):

How should we think about the role of law in the making of American foreign policy? Scholarly accounts typically emphasize that the United States led the way for the establishment of a legalized international order at the end of World War II, centered around the norms of international human rights and those of the law of war. More recently, historians have argued that, in fact, a much more skeptical attitude towards international law prevailed in the postwar period. This was in large part due to the reigning influence of international relations realism in the postwar foreign policy establishment. This article argues that postwar foreign policy was defined neither by an unyielding fidelity to a norms-based international order nor enduring realist dismissal of this project. Rather, what defined the postwar period was an eclectic, variegated and situational approach to law and regulation: a mode of “pragmatic” legalism. Pragmatic legalism consciously developed as a reaction to the legal sensibilities of prewar foreign policy makers, who promoted the codification of international norms and the judicial resolution of international disputes. It also developed as a result of larger transformations in American legal thought, notably the rise of sociological jurisprudence and legal realism. Uncovering the history of pragmatic legalism produces significant consequences for how we understand the past and present of American foreign policy. It suggests that there was not a singular law-centric mode that prevailed among American foreign policy makers over the course of the twentieth century, as has been frequently assumed. The vocabulary of pragmatic legalism also shows the breadth of alternative possibilities for lawyers anxious for ways forward today. Today, a legal approach reminiscent of the tradition of international relations realism is vying to displace the previously moralizing language of American foreign policy. Neither of these two competing modes- moralizing internationalism or skeptical disengagement- is the inevitable future of American foreign policy, or American legal internationalism more broadly.

--Dan Ernst

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