Feedback to SSRN (Beta)
What type of feedback would you like to send?
Abstract: This article is a chapter of my forthcoming book Diversity in America: Keeping Government at a Safe Distance (Harvard U. P., early 2003). The book also contains chapters on a conceptualization/taxonomy of diversity ("The Diversity of Diversity"), an intellectual history of diversity-as-ideal (just published as "The Perceived Values of Diversity, Then and Now," 22 Cardozo L. Rev. 1915 (2001)), and chapters analyzing the law and policy governing immigration-related diversity, diversity in residential communities, and religious diversity. There are also introductory and concluding chapters. This article consists of ten sections: (1) an introduction; (2) the definitions, designs, and domains of affirmative action; (3) the importance of context in assessments of affirmative action; (4) the size of affirmative action preferences in different domains, especially higher education; (5) rationales and counter-rationales for ethno-racial preferences (restitution, merit, anti-caste, leadership cadre, market failure, institutional pragmatism, and diversity); (6) the politics of affirmative action (political history, public attitudes, and political survival); (7) the consequences of affirmative action (rate of black progress, distribution of benefits in and outside the favored group, and incidence and distribution of costs); (8) the re-segregation nightmare; (9) alternatives (better targeting within favored groups, disadvantage-based preferences, lottery, addressing root causes, time-limited programs, and voluntary programs); and (10) a conclusion. Prescriptively, I argue that whether or not the diversity rationale for legally-mandated ethno-racial preferences in higher education (and probably elsewhere) can pass constitutional muster (apart from the narrow opening under the Court's Paradise test), public law preferences are unjust and unwise, and are steadily becoming more so. Private preferences, however, are acceptable if the entities using them publicly disclose the nature and magnitude of those preferences and do not discriminate against blacks and other minorities entitled to the highest level of protection under the Constitution.
Abstract: The paper identifies three paradigmatic roles that public law can play in the kind of post-privatization political and policy environments in which emerging liberal democracies are now situated. These roles are (1) to create and institutionalize a strong but rebuttable presumption in favor of market solutions to social problems; (2) to maximize the effectiveness of regulation where it is used; and (3) to establish extra-regulatory institutions and processes that can help monitor, augment, and discipline the resulting hybrid system of markets and regulation. The paper discusses how American public law has implemented these roles.
Abstract: The paper identifies three paradigmatic roles that public law can play in the kind of post-privatization political and policy environments in which emerging liberal democracies are now situated. These roles are (1) to create and institutionalize a strong but rebuttable presumption in favor of market solutions to social problems; (2) to maximize the effectiveness of regulation where it is used; and (3) to establish extra-regulatory institutions and processes that can help monitor, augment, and discipline ther resulting hybrid system of markets and regulation. The paper discusses how American public law has implemented these roles.
Abstract: This paper explores the ways in which citizenships are defined and regulated in federations. After introducing the subject by describing the debate over the meaning of national and sub-national sovereignties in an age of globalism, the paper discusses the internal, centripetal forces that may impel nation-states to federalize power, devolving it downward to sub-national units and thereby altering the nature and significance of citizenship. It next develops the political, constitutional, sociological, and psychological meanings of citizenship and the policy instruments through which different polities may instantiate these meanings, including federalism. The paper then analyzes how federalism affects citizenship by focusing on four aspects of a federation that shape citizenship's meaning in that polity: (1) the polity's historical and political origins; (2) its social diversity; (3) its distribution of powers between the national and sub-national levels, and among the latter; and (4) the rights and duties it accords to citizens of each level. This analysis draws on the federal systems in Australia, Canada, Germany, Switzerland, the U.S., and, to a lesser extent, Belgium. The paper concludes by reporting on the recent, unexpected renaissance of America's dual sovereignty form of federalism.
Abstract: American legal scholars and social scientists have long been intrigued by New Zealand's accident compensation system, which essentially abolished common law tort almost 40 years ago. This paper, prepared for a conference sponsored by the Brookings Institution and Common Good, provides an up-to-date account of the New Zealand system, with a focus on its treatment of two types of claims - for medical injuries and emotional distress - that raise particularly vexing boundary problems for the system. It then discusses a number of lessons that U.S. policymakers and scholars can draw from the New Zealand experience.
Abstract: This essay, given as the Uri and Caroline Bauer Memorial Lecture at Cardozo Law School, is also a chapter in a forthcoming book, Schuck, Diversity in America: Law's Uneasy Roles. I trace the intellectual history of what I call diversity-as-ideal (as distinct from what I call diversity-as-fact) from Biblical texts to the present. I find that except for a few precursors like Mill, Whitman, and the cultural pluralists Horace Kallen and Randolph Bourne, diversity was until the late 1960s viewed as a condition to be managed and perhaps admired, but certainly not a social ideal to be promoted and celebrated, much less a public policy goal to be pursued through law. Even these relatively few diversity visionaries, moreover, did not celebrate it as a universal ideal that included blacks and other racial minorities. Here, as in many other areas, the 1960s marked a fundamental change in the American view of diversity-as-ideal, one whose normative foundations and policy implications remain contested.
Abstract: This paper first discusses how law affects migration flows by helping to construct the incentives that drive the decisions of potential migrants. It then turns to the more specific modalities, structures, and institutions through which law attempts to control and shape migration. Next, it explains why contemporary immigration law has failed in its stated enforcement mission, which also suggests that this ostensible failure, in fact, serves certain latent social functions. Finally, it explores the possibility that much illegal immigration is a victimless offense, and discusses some of the ways in which this reality may affect immigration enforcement and politics.
Abstract: This short "think piece" about Grutter, written for an online symposium convened by The Jurist, criticizes many features of the majority's analysis in Grutter: its dilution of strict scrutiny; its misconception of diversity-value in education; its linkage of educational diversity to its idea of "critical mass"; its opposition to, yet reinforcement of, adverse stereotypes; its constitutional test for distinguishing between valid and invalid ethno-racial preferences, and its misapplication of that test to the law school's plan; its treatment of race-neutral alternatives; and its likely effect on the future of preferences and on the politics surrounding them.
Abstract: This paper, prepared for the MidEast Legal Seminar Series, explores the relationship between equality and the rule of law, as manifested by the American experience. After offering a working definition of the rule of law, the paper explores how various forms of equality affect the rule of law, and vice-versa. It then discusses the relationship between equal access to law and social support for the rule of law. Finally, it considers how social groups learn about and protect their legal claims and other interests.
Abstract: The chapter begins by tracing the history of immigration to the United States. This brief summary emphasizes the immense demographic changes and social and political conflicts that immigration has engendered, the laws that have shaped it, and some of the many ways in which the 1965 immigration reform have transformed American society. The chapter then discusses the debate over multi-culturalism, English language policy in general, and bilingual education in particular. A final section analyzes the "diversity visas" program enacted in 1990. I propose a more diversity - and choice-friendly approach to bilingual education, as well as a scrapping of the "diversity visas" program.
Abstract: The positive and normative relationships between FDA regulation of pharmaceutical drugs and state tort law have gained much attention in recent years, with FDA aggressively asserting preemptive effect, some state courts resisting, and the U.S. Supreme Court relatively active on preemption issues, including several now pending before the Court. Prominent scholars of torts and regulation have analyzed these issues from a variety of rich perspectives.This paper weighs in on this debate, making several contributions.
First, it augments prior analyses of the comparative institutional competence, going beyond the common emphasis on relative expertise to stress the agency's far greater democratic accountability and policy learning capacity.
Second, having made the case for broad FDA preemption in the drug area, it proposes an exception to FDA preemption that is both broader and narrower than under existing law or the existing scholarship. The exception to preemption would be broader in that it would go beyond fraud on the agency to encompass all disclosure deficits on the part of drug manufacturers, whether fraudulent, negligent, or innocent. The exception to preemption would be narrower in that in order to survive a motion to dismiss, the tort plaintiff would have to meet a hyper-heightened pleading standard requiring greater specificity with respect to both the allegations of disclosure deficit and the supporting factual evidence than that required by the already heightened standard that the Federal Rules of Civil Procedure now imposes on federal court complaints alleging fraud.
The third proposed change concerns the status under state tort law of a regulatory compliance defense, which only Michigan has adopted as a complete defenser state law. Although modifying FDA preemption principles as I propose would block much design and warning defect litigation in state courts (at least prima facie) as a matter of federal law, there is much to be said for also effecting this change as a non-constitutional matter under state tort law by crafting a regulatory compliance defense consistent with my other proposed changes. The paper concludes with a brief discussion of whether FDA preemption, properly designed, would leave a compensation void with respect to those harmed by FDA-regulated drugs.
administrative law, regulation, tort law, preemption, constitutional law
Abstract: This chapter describes the extraordinary diversity of American society and some forces that are likely to increase it. I begin by offering and defending a working definition of diversity and diversity-value. As part of this definition, I introduce an important distinction between diversity-as-ideal and diversity-as-fact, noting that diversity-as-ideal is so new that Americans have not yet begun to think seriously about it. Second, I show that diversity's rhetorical power and prestige in the U.S. are at their zenith, and that this distinguishes the U.S. from almost all other societies. Third, I contrast the superficiality of current diversity-talk with the importance of more systematic attention to how we should manage diversity and particularly to law's role. I then map the rest of the book.
Abstract: This conference paper, focusing on the citizenship debate in the U.S., elaborates three distinctive models of citizenship, which I call nationalistic, human rights, and Marshallian (after sociologist T. H. Marshall's seminal essay). I analyze each model along three normative dimensions: justification, territoriality, and entitlements. The nationalistic model is justified by a theory of mutual democratic consent and emphasizes bounded territoriality as the main basis for membership. A liberal, highly individualistic polity like the U.S. takes a decidedly ambivalent view of entitlements. On the one hand, they are part of the quid pro quo, the social contract on which consensual membership rests, at least in contemporary society. Moreover, most Americans manifestly believe that even in a liberal polity - or perhaps especially in such a polity - certain minimum entitlements are in fact necessary to secure a dignified, participatory, independent life for their fellow citizens and for at least some of the non-citizens who reside and work among them. On the other hand, Americans also manifestly believe that additional entitlements, either in kind or amount, threaten these very same values, especially independence, and would at the margin reduce the motivation to work and to take responsibility for oneself and one's family. Although all developed societies exhibit this ambivalence, different ones strike the balance among the benefits, costs, and risks of entitlements quite differently, with the U.S. being an outlier in limiting publicly-funded welfare supports. The human rights model is justified by the imperative of securing individual and group rights that will assure humane and protective conditions for those who are unfortunate enough to reside in cruel or despotic states, and for those who are outside their country of nationality and at risk of unequal and inhumane treatment in their new locations. The human rights model's domain is emphatically transnational, not territorially bounded. On this account, one's birth in a particular state and to particular parents is adventitious; such a locational accident is arbitrary and should not determine one's access to rights that, as a matter of distributive justice, should be enjoyed universally, not only by national members. On entitlements, this model is keen to preserve, not diminish, the full panoply of civil and political rights that are already guaranteed (constitutionally or by statute) to nationals in the U.S., European states, and other liberal democracies. These rights constitute the baseline for entitlements; the model's goal is to extend them to all people who are located within the state and thus subject to its governmental authority The Marshallian model focuses not on the rights of non-citizens but rather on what he viewed as the incomplete set of rights accorded to those who are already full citizens. Its justification lies in its aspiration for social equality for all citizens, including their equal access to those resources that are essential for full and equal participation in community life. It has little to say about territoriality, perhaps because he assumes the autonomy of the nation-state, specifically his own, the United Kingdom. Unlike the other models, Marshall's fails to discuss the phenomenon so central today of large-scale immigration and the consequent claims against the state by non-citizens. On entitlements, the model focuses on full participation in the society, polity, and economy. Its proponents view the U.S. as a "welfare laggard" in this respect, a premise that I question by calling attention to six complicating factors: size, immigration, demography, privatization, globalization, and intra-EU dynamics. For each model, the paper poses what strikes me as the most urgent, and usually neglected, question to be raised about it, and I offer a very tentative and all-too-brief and simple, if not simplistic, answer to each question. For the nationalistic model, the question is about its continuing relevance in a rapidly globalizing world. For the human rights model, the question is whether it contains any real limits, internal to itself, on the obligations that it would impose on states in their dealings with people who are often (not always) perfect strangers in all but a universalistic, humanistic sense. The question for the Marshallian model is why it has gained much less public support in the United States than in most of the European states. The conclusion briefly speculates about the future of the Marshallian model in both the U.S. and Europe. It predicts that a distinctively liberal, individualistic, privatistic form of nationalist citizenship will continue to flourish, one that will bewilder Europeans even as they edge their way inexorably toward their own more communitarian version of it.
citizenship, social policy, United States
Abstract: This chapter is divided into two main sections. The first is a brief intellectual history of diversity-as-ideal, beginning with the Biblical texts and continuing up to the present. I emphasize the novelty of diversity-as-ideal, its cultural antecedents in America, and its efflorescence in the late 1960s when the civil rights movement and a new immigration system provided ideological and demographic energy to this nascent ideal. The second section identifies the values and dis-values of diversity by considering how a liberal, a communitarian, a utilitarian, and a social functionalist would understand and assess diversity.
Abstract: In this chapter, I discuss two problems. First, how does the law decide which religious practices are so deviant and offensive to American society's secular values that they cannot be tolerated? Here, I argue that the law can narrow this conflict between secular and sacred norms by somewhat greater deference to unconventional religious practices. Second, under what conditions can government exploit religious diversity to more effectively pursue secular public goals. Here, I consider two issues - faith-based social service providers, and school choice plans allowing families to use public funds for religious schools - and propose criteria for such programs that can maximize their diversity-value while protecting other social commitments.
Abstract: This chapter reviews the fascinating history of legal efforts to increase economic and racial diversity in housing. One approach, exemplified by the New Jersey Supreme Court's landmark Mount Laurel decision, required municipalities to guarantee a certain number of affordable housing units through inclusionary zoning of residential developments. Another, exemplified by the endless Yonkers litigation, sought diversity as part of a civil rights remedy. A third is the Gautreaux litigation seeking to move public housing tenants to the suburbs. I use these and other policy disputes to examine the law's effectiveness in promoting diversity in an area dominated by powerful market pressures, a strong classicist ethos, and competing diversity claims.
Abstract: This relatively short paper, written for an online symposium honoring Owen Fiss's "Groups and the Equal Protection Clause," frontally challenges his "group disadvantage theory." While his theory exhibits some attractive features, the conceptions of groups and group competition that frame and infuse the theory were unconvincing when he wrote the article in 1976, and are even more unconvincing today in light of remarkable gains by blacks in almost every area of American life. The diversity, dynamism, and competition of group life, together with the individualistic culture in which are embedded, constitute the generative social context in which groups form their identities, achieve and compete for status, and form relationships with other groups in civil society, including the state. Fiss's failure to take adequate account of this context renders his theory mistaken in fundamental respects, and his failure to provide a coherent account of status and status harm leaves his theory radically incomplete. The paper is divided into two main sections - (1) the empirics of black progress and political influence, and (2) the anti-discrimination principle - and concludes with a brief discussion of several facts and dilemmas that any serious theory of group identity and group competition must confront: the decline of discrimination against blacks, the large and growing intra-group heterogeneity of blacks, and the emergence of other ethno-racial groups competing with blacks for public resources and recognition.
Abstract: The political economy of immigration is far more one-sided and expansionist than the public attitudes toward immigration, and this is even more true of immigration law scholarship. That is, almost all of the significant political interest groups in the United States with an interest in immigration policy, and almost all immigration law scholars, advocate very strongly in the direction of maintaining an expansive immigration policy - and the policy outcomes testify to their success. Finally, and perhaps needless to say, the principal lawyers' organizations in this field - the American Bar Association and the American Immigration Lawyers Association - also favor expansion. In contrast, the general public evidently favors - and has always favored, so far as one can tell from opinion surveys - either more restrictive immigration policies or at least no further expansion of immigration. As a shorthand, I call this discrepancy between restrictive or status quo public attitudes and expansive policy outcomes a "political disconnect." In this chapter, I describe this disconnect and the immigration-specific political economy that I believe largely explains it, concluding with some brief reflections on the phenomenon.
Abstract: In this chapter of "Suing the Firearms Industry" (T. Lytton, ed., U. of Michigan Press, 2004), I conduct a comparative institutional analysis of the regulatory competence of courts and legislatures/agencies in reducing the risks of gun-related violence. Needless to say, the gun control movement is reluctant to forswear litigation about gun risks in favor of legislative and administrative regulation. After all, they have already tried and failed in their political pursuit of the latter. Nor is it necessarily true that regulation and litigation are mutually exclusive. In this paper, I take the perspective of an Olympian designer of an optimal regime for controlling gun-related risks, one who compares the litigation option as it now exists to the regulatory option that would become viable were the gun control movement to achieve greater political success in the future. After discussing the logic of institutional comparison, I propose six analytic criteria for the comparison, each of which pertains to the institutions' propensity to develop and implement sound gun control policies. In order for an institution to make and implement policy effectively, it must (1) generate the technocratic information needed for gun-related policymaking; (2) generate the political information needed to frame an acceptable policy; (3) mobilize the array of different policy instruments necessary to establish and implement the policy; (4) promote social learning (short feedback loops) and flexible adaptation to new conditions; (5) generate predictable rules; and (6) secure and sustain the policy's legitimacy. After elaborating and applying these criteria to the problem of gun-related violence, the analysis finds that risk regulators are far better equipped than judges to address and manage the problem. In a brief conclusion, I argue that existing and proposed laws to keep guns out of the hands of those who should not have them - a "Brady-plus" approach - are unlikely to succeed. A more promising approach is technological in nature - making guns safer (although relatively few gun-related injuries are inflicted on or by careless, innocent users) and more easily traceable to those who fire them. An even more promising approach is the use of surveillance technology to enable the police to detect guns in public spaces and at safe distances while obviating the need for making dangerous, discriminatory, and intrusive stop-and-frisks of individuals without probable cause for suspicion. This would vastly increase the ability of police officers safely and effectively to disarm people who have no legal right to carry weapons. If it is to be deployed, however, it must safeguard individual privacy rights under the Fourth Amendment. My guess (and it is only a guess) is that the vast majority of Americans will view the use of a reliable surveillance technology limited to concealed guns in public spaces and subject to strict legal controls against unwarranted profiling and intrusion as constituting a reasonable search, one whose crime- and violence-reduction benefits would more than justify the small invasion of privacy entailed.
Abstract: This paper, written for a conference at the Radcliffe Institute, analyzes the state of immigrant incorporation in the U.S. in the post-9/11 era. After identifying the pivotal legal and political developments in immigration policy during the last decade, I discuss five elements of the incorporation phenomenon: (1) public attitudes toward immigration and (what is not always the same) toward immigrants, as well as the diversity that immigration brings to American life; (2) the role that affirmative action and other public benefits play in the incorporation of immigrants; (3) the role of federalism in structuring immigrant incorporation; (4) emergent notions of citizenship; and (5) the nature and extent of immigrant assimilation. The analysis includes some comparative references to recent developments in Canada and western Europe.
Abstract: Here, I sharpen the idea of diversity by analyzing it in three different dimensions: the different ways diversity can be defined, classified, and measured; the sources of diversity; and the kinds of rights that law can use to regulate it. First, I develop "taxonomies" of diversity by introducing a group of clarifying distinctions - for example, normative vs. descriptive diversity; individual vs. group diversity; demographic vs. substantive diversity; and official vs. unofficial diversity. Second, I discuss the various sources and causes of diversity: individual and group psychology; geophysical factors; historical factors; the market; constitutional structure; sub-constitutional structures and institutions; and ideology. Finally, expanding on Robert Post's analysis, I discuss how different forms of legal protection - individual rights, group rights, and devolution of authority - can and do structure diversity.
Abstract: This paper, written to set the intellectual stage for a conference on the subject, attempts to conceptualize and frame the subject of catastrophe. Part I elaborates definitions and paradigmatic features: magnitude, pervasiveness, uncertainty, preventability, irreversibility, and crisis. Part II develops some additional variables or distinctions relating to catastrophe: public recognition, community of concern, identifiable vs. statistical victims, telegenicity, winners and losers, and buffering institutions. Part III presents four frameworks used to explain catastrophe. After a brief discussion of the religious framework, I discuss science, law, and politics at greater length. For each, I analyze its distinctive values, incentives and techniques, and biases and orientations. Part IV analyzes three different frameworks for regulating catastrophe: legal-governmental institutions (planning, research, regulation, tort law, and social insurance), markets, and social norms. The final Part discusses the inter-penetration of science into law, and of law into science, using examples drawn from different fields.
Abstract: This is a review of two books on public policymaking performance and civil service reform at the federal level: A GOVERNMENT ILL EXECUTED: THE DECLINE OF THE FEDERAL SERVICE AND HOW TO REVERSE IT by Paul C. Light (Harvard U. Press 2008) and PROMOTING THE GENERAL WELFARE: NEW PERSPECTIVES ON GOVERNMENT PERFORMANCE, edited by Alan S. Gerber & Eric M. Patashnik (Brookings Institution Press, 2006).
Abstract: This paper, an expanded version of the Ann F. Baum Lecture in Elderlaw at the University of Illinois School of Law, uses the Medicare funding crisis to explore a number of topics that we must carefully analyze if we are to figure out how to contain it. The paper has seven parts. First, I describe what I call “the golden age of aging” - the vastly improved social, physical, and economic conditions and prospects of the elderly population. Second, I explain how the public programs that have helped secure this golden age may be at future risk due primarily to the changing ratio of dependents (elderly and children) to the working population. Third, I explore the political economy of aging, in which the elderly possess large and growing advantages in protecting their interests politically, which include resisting the difficult reforms that are necessary to make age-related programs fiscally sustainable. Fourth, drawing on earlier work with Richard Zeckhauser (Targeting in Social Programs: Avoiding Bad Bets, Removing Bad Apples (Brookings, 2006)), I argue that policymakers must reduce their propensity to use scarce programmatic resources to make "bad bets," many of which involve excessive health care spending on the elderly at the expense of other, more cost-effective social needs, especially those of children. Fifth, I analyze some of the hard normative and policy choices that such a cost-effectiveness strategy would entail. Sixth, I explore the issue of inter-generational equity, arguing that the current generation of workers-taxpayers has more than satisfied any moral obligations it owes to current retirees. Finally, I conclude by recommending some of the policy approaches that flow from my analysis. These include informing patients more candidly about the cost-effectiveness of possible treatments and care modalities; encouraging pre-illness advance directives; guiding physicians' decisions on bad bets; increasing research on the cost-effectiveness of particular interventions; and changing certain reimbursement practices.
Abstract: Demography is neither self-defining nor pre-political. A society's demography is simply the ensemble of variables that demographers choose (or are instructed by their superiors) to select, define, identify, classify, measure, and publish. The choice of these variables - and the ways in which people may analyze, combine, manipulate, interpret, and otherwise use them - profoundly influences the society's self-understanding, its sense of its problems, human resources, trajectory, and achievements. Grounded in social choices that often are as political and instrumental as they are technical, demography helps to mold the society's beliefs about itself and the world. What does this have to do with the struggle for human rights? In this paper, much of which draws in my book Diversity in America (Harvard UP, 2003), I focus on what I take to be the most fundamental aspect of any society's approach to human rights: how it thinks about and manages its own diversity, with diversity being understood both in demographic and non-demographic terms. Part I distinguishes among a number of ways of understanding and defining diversity, with a view to underscoring the analytical significance of choosing demographic and non-demographic measures of diversity. Part II discusses two examples - multi-racial individuals and anti-profiling laws - to illustrate the inevitable politicization of certain demographic categories when used for politically sensitive purposes. Part III presents some distinctive and, in some cases, unique features of the American approach to diversity management. Most of these features, I shall argue, effectively advance the cause of minority mobility and integration, whereas some tend to undermine these goals.
Abstract: Probably no principle in immigration law is more firmly established, or of greater antiquity, than the plenary power of the federal government to regulate immigration. Also canonical is the corollary notion, analogous to the dormant power doctrine in Commerce Clause jurisprudence, that this federal power is indivisible and therefore that the states may not exercise any part of it without an express or implied delegation from Washington. Despite the plenary power doctrine's canonicity, it has been assailed over the years by many academics (including me) and defended, I think, by none. An interesting feature of these critiques of the plenary power doctrine is that its critics (with the notable exception of Peter Spiro) seem eager to embrace its corollary - the principle that federal authority over immigration preempts the states from playing any independent role in the development and administration of immigration law and policy. This conjunction of positions, which might otherwise seem illogical or at least awkward, is probably best explained by ideology and politics. As I have explained elsewhere, the immigration law professoriate occupies a position at the extreme left in the national debate over immigration. On the evidence from the post-1996 period, however, it is not at all clear that states unconstrained by the plenary power doctrine and its preemption corollary would treat legal immigrants more harshly than the federal government would - or than reasonable (i.e., non-xenophobic) voters might think wise or fair. Some states (or more likely, localities) might do so, but the the largest immigrant-receiving states are in fact consistently more generous to immigrants, even including undocumented ones, than are federal policymakers. But even if this solicitude were less robust than it is, a sensible immigration policy should allocate regulatory power over immigration and immigrants between the federal government and the states based on principles more general and politically acceptable than one that simply favors whichever power allocation one or another commentator thinks will gain immigrants the most social services and welfare benefits. Using a functional analysis, I argue that the legitimate goals of federal immigration policy might be better served if Congress authorized state authority in certain policy areas - employment-based admissions, integration with state and local criminal justice systems, and employer sanctions. I also argue, however, that state and local laws that penalize landlords and other vendors to undocumented immigrants of services are preempted by federal law.
Abstract: Part I: Clearing the Ground Chapter 1: Introduction This chapter describes the extraordinary diversity of American society and some forces that are likely to increase it. I begin by offering and defending a working definition of diversity and diversity-value. As part of this definition, I introduce an important distinction between diversity-as-ideal and diversity-as-fact, noting that diversity-as-ideal is so new that Americans have not yet begun to think seriously about it. Second, I show that diversity's rhetorical power and prestige in the U.S. are at their zenith, and that this distinguishes the U.S. from almost all other societies. Third, I contrast the superficiality of current diversity-talk with the importance of more systematic attention to how we should manage diversity and particularly to law's role. I then map the rest of the book. Chapter 2: Diversity: Taxonomies, Sources, and Legal Structures Here, I sharpen the idea of diversity by analyzing it in three different dimensions: the different ways diversity can be defined, classified, and measured; the sources of diversity; and the kinds of rights that law can use to regulate it. First, I develop "taxonomies" of diversity by introducing a group of clarifying distinctions - for example, normative vs. descriptive diversity; individual vs. group diversity; demographic vs. substantive diversity; and official vs. unofficial diversity. Second, I discuss the various sources and causes of diversity: individual and group psychology; geophysical factors; historical factors; the market; constitutional structure; sub-constitutional structures and institutions; and ideology. Finally, expanding on Robert Post's analysis, I discuss how different forms of legal protection - individual rights, group rights, and devolution of authority - can and do structure diversity. Chapter 3: The Diversity Ideal: History and Values This chapter is divided into two main sections. The first is a brief intellectual history of diversity-as-ideal, beginning with the Biblical texts and continuing up to the present. I emphasize the novelty of diversity-as-ideal, its cultural antecedents in America, and its efflorescence in the late 1960s when the civil rights movement and a new immigration system provided ideological and demographic energy to this nascent ideal. The second section identifies the values and dis-values of diversity by considering how a liberal, a communitarian, a utilitarian, and a social functionalist would understand and assess diversity. Part II: Diversity in Public Policy Chapter 4: Importing Diversity: Immigration The chapter begins by tracing the history of immigration to the United States. This brief summary emphasizes the immense demographic changes and social and political conflicts that immigration has engendered, the laws that have shaped it, and some of the many ways in which the 1965 immigration reform have transformed American society. The chapter then discusses the debate over multi-culturalism, English language policy in general, and bilingual education in particular. A final section analyzes the "diversity visas" program enacted in 1990. I propose a more diversity- and choice-friendly approach to bilingual education, as well as a scrapping of the "diversity visas" program. Chapter 5: Defining Diversity: Affirmative Action After defining affirmative action, distinguishing it from non-discrimination, identifying different policy areas where preferences are used, and estimating the size of those preferences, I dissect the various rationales that have been offered for them. I focus on the diversity rationale, which is now the rhetorical and legal mainstay in the defense of affirmative action. I trace affirmative action's political and legal history, including public opinion trends, and then analyze the programs' actual consequences, including the rate of black progress and the size and distribution of affirmative action's benefits and costs. Finally, I consider a variety of alternatives to current preference programs and propose my own, which would bar all public law preferences while permitting private preferences that are fully disclosed and do not disadvantage minorities entitled to the highest level of constitutional protection. Chapter 6: Subsidizing and Mandating Diversity: Residential Neighborhoods This chapter reviews the fascinating history of legal efforts to increase economic and racial diversity in housing. One approach, exemplified by the New Jersey Supreme Court's landmark Mount Laurel decision, required municipalities to guarantee a certain number of affordable housing units through inclusionary zoning of residential developments. Another, exemplified by the endless Yonkers litigation, sought diversity as part of a civil rights remedy. A third is the Gautreaux litigation seeking to move public housing tenants to the suburbs. I use these and other policy disputes to examine the law's effectiveness in promoting diversity in an area dominated by powerful market pressures, a strong classist ethos, and competing diversity claims. Chapter 7: Protecting Diversity: Religion In this chapter, I discuss two problems. First, how does the law decide which religious practices are so deviant and offensive to American society's secular values that they cannot be tolerated? Here, I argue that the law can narrow this conflict between secular and sacred norms by somewhat greater deference to unconventional religious practices. Second, under what conditions can government exploit religious diversity to more effectively pursue secular public goals? Here, I consider two issues - faith-based social service providers, and school choice plans allowing families to use public funds for religious schools - and propose criteria for such programs that can maximize their diversity-value while protecting other social commitments. Chapter 8: Conclusion: Managing Diversity Drawing on Part II's detailed case studies and analyses, I distill their principal lessons. After summarizing the most important and generalizable factual findings about how diversity in America "works", I advance general principles and specific policies that should guide diversity management in the future. In particular, I distinguish between two public policy goals - protecting diversity and affirmatively promoting it - and argue that government and law can appropriately and effectively accomplish the former but should not seek to do the latter directly. Instead, I maintain, we should design public policies and institutions ways that promote informed individual and family choices that can yield more authentic, legitimate, sustainable, and socially valuable patterns of diversity.
Abstract: This is a review of Philip Schrag, A Well Founded Fear: The Congressional Battle to Save Political Asylum in America (Routledge), which depicts the efforts of the book's author to protect U.S. asylum laws from being gutted by congressional Republicans in 1995. The book describes Professor Schrag's creation of a group, the Committee to Preserve Asylum, and its success, along with its allies, in winning concessions on a series of important issues. This book is as reader friendly an account of a bewilderingly labrynthine legislative process as we are ever likely to get. It underscores the importance of competing media images; opponents of asylum focused on abuses; its defenders brought forth stories of horrible persecution. One of the most important qualities of the book is what it teaches about congressional politics generally, not just in the context of asylum. In an extremely perceptive final chapter, Schrag proposes 16 "hypotheses" that can be tested by other case studies. Drawing on his case study, he emphasizes how open, fluid and participatory politics can be; the effectiveness of lobbying unaccompanied by campaign contributions, the immense energy and time required to shape legislation over a two year period and the emotional roller coaster this entails; the ability of even poorly funded groups to influence policy agendas, the value of the administration's support even when it does not control Congress, the tactical significance of issue packaging, the centrality of procedure, both in Congress and in the laws that it enacts, the importance of timing, contingency and sheer "dumb luck" and the value of personal meetings with members and staff.
Abstract: This is a chapter in a forthcoming book, "Tools of Government: A Public Management Handbook for the Era of Third-Party Government, edited by Lester M. Salamon (New York: Oxford U.P.). It was written to dovetail with other chapters on direct government, contracting, tax expenditures, regulation, insurance, information, grants, loan guarantees, etc. Aimed primarily at non-lawyer public administrators and public policy analysts and students, the chapter takes a very schmatic view of tort liability, emphasizing its use as one of a number of risk management devices available to policymakers. It begins with a vignette illustrating the possible policy uses of tort liability, defines its basic features, notes some trends and patterns of tort liability, discusses the conditions in which its use is most appropriate and the relevant political factors bearing on this. It then considers tort liability's basic mechanics, "design options," management challenges, suggestions for overcoming these challenges, and the like.
Abstract: This short entry, written for the International Encyclopedia for Social and Behavioral Sciences, begins by mapping the topic of legal liability with some basic distinctions between potential and current liability; criminal, civil, and administrative liability; areas of substantive law; and common law and civil law systems of liability. The remainder of the entry focuses on tort liability, with particular emphasis on the U.S. liability system. It discusses in some detail six major elements of this system: (1) goals; (2) substantive rules; (3) procedural rules; (4) remedies; (5) choice of law; and (6) institutions, particularly the jury. A seventh element, which defines tort liability by exclusion, consists of enclaves in which tort law has been limited or eliminated: immunities and.no-fault compensation schemes. A conclusion speculates on the future of tort liability, with particular attention to changes in social attitudes toward risk-bearing, and to the relationship between tort liability and social insurance.
Abstract: This paper, which is the final chapter of a book of essays on the subject, explores the limits of law by drawing on a wide range of theoretical and empirical materials in order to compare legal rules to informal social norms and markets, its main competitors in the shaping of social behavior. The paper first presents three major critiques of law: libertarian, functionalist, and illegitimacy. Next, it explores important features of law, norms, and markets by exploring their interrelationships and then broadly comparing them to one another in light of five vital criteria for policy design: (1) incentives; (2) information; (3) flexibility; (4) transaction costs; and (5) legitimacy. Finally, it develops five general principles, together with specific applications, regarding how law, norms, and markets might best be used to promote whatever policies the polity may adopt. These principles emphasize (1) the importance of comparing alternatives; (2) implementation analysis; (3) process efficiency; (4) sociological, spatial, and temporal responsiveness; and (5) law minimization.
© 2009 Social Science Electronic Publishing, Inc. All Rights Reserved. Terms of Use Privacy Policy This page was served by apollo 4 in 0.328 seconds.
