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Abstract:
Drawing on fieldwork and political theory with Lacanian psychoanalytic influences, this article analyzes how fantasy and fetishes help sustain strategies shown to be no solution to border regulation concerns. More than a decade after the official launch of the border control paradigm of "prevention through deterrence," predicated on the assumption that ramping up walls, barriers, policing and the human costs of border crossing would deter, there has been scant evidence of deterrence and much evidence of diversion of migrants to more dangerous crossing points where death rates have soared. Attempts to mitigate the cost to life have also proved ineffective but persisted alongside the policy of diversion.

The article is based on research in a region where the reality of diversion and death instead of deterrence was lived but where people still pursue projects of barrier-building and death mitigation that they know to be ineffective. The article analyzes how fantasy fuels action despite knowledge and occludes a traumatic element around which the symbolic order of border law is structured: the foundation of "good life" with its bounty of rights, privileges and opportunity on the exclusion of basic life denuded of the entitlements that make the good life sweet. The article also examines how fetishes are used to cope with unrealized hopes and to diffuse the impact of the traumatic knowledge that good life is undergirded by the exclusion and even death of basic life.

Border Law, Border Security, Migration, Immigration, Fantasy, Fetishism, Fetishes, Lacan, Zizek, Minutemen, Secure Fence Act of 2006

Abstract:
This article argues that the turn in political dialogue to juxtaposing immigration with terrorism manufactures an illusory correlation and flawed decisional heuristic. Illusory correlations are distorted perceptions of correlations, including seeing correlations that do not exist or overestimating real correlations. Heuristics are cognitive rules of thumb that help make difficult judgments and decisions easier by substituting attributes that are hard to assess or measure with a simpler proxy.

The immigration-terrorism illusory correlation generates a distorting decisional heuristic - immigration control becomes about fighting terrorism and danger, rather than a complex balancing of humanity, need, self-interest, privilege and conscience. Regulation becomes simple but grossly distorted based on the heuristic. Everyone is for stamping out the terrorism-tinged by ramping up penalties, walls and controls though we may have different and more nuanced responses about how to balance the complex concerns of humanity, human need and conscience. Preventing terrorists from entering the United States is an important concern and compelling duty. We should not, however, forego fair and accurate consideration of the complex issues of immigration policy that the nation has grappled with long before the September 11 nightmare.

immigration reform, politics, legislation

Abstract:
This article is about a peril amid the promise of numbers in monitoring opaque domains of criminal justice. The concern is about how numbers can become an end or target in criminal justice, becoming the value rather than serving as a technology toward higher aims and principles. The article examines how statistics of people prosecuted and cases won, divorced from qualitative details and isolated from context, are officially deployed as a proxy for performance in criminal justice. In place of hard-to-achieve, complex and squishy public values, the production of numbers - with their comforting solidity and relatively easier attainability - is substituted.

The article examines how two strategies for coping with public doubt can lead to the substitution of numbers for substantive values. The first is the turn to trying to make performance visible by privileging objective quantified targets and measures and avoiding soft measures attentive to qualitative detail - though when it comes to public values like doing justice, where there is no discrete bottom-line, such as private-sector profits or widgets made, qualitative description is particularly necessary. The second strategy is denial and acting out over policy failure. The article argues for greater receptivity in policy and legislation to qualitative methods and worldviews, so that numbers and values can be situated in context.

criminal law, criminal procedure, prosecution, performance measurement

Abstract:
For over three decades, criminal justice officials have based key decisions about a defendant's fate and crime deterrence on a tool deplored for its indecipherability and potential incompleteness or inaccuracy - the rap sheet. The story of how rap sheet flaws came to be is also a tale of federal timidity in taking a necessary leadership role because of judicial rhetoric and rules about noninterference with traditional state functions like criminal law enforcement.

Taking the case of the rap sheet, this article argues that the doctrine of noninterference in traditional state spheres like law enforcement deterred and continues to deter leadership on a law enforcement problem requiring national coordination. The article analyzes how the ostensibly overruled doctrine mutated into a more potent form unmitigated by a countervailing rule permitting full fruition of federal design by allowing national leadership on problems requiring a coordinated solution.

The article finds obscured in the contortions of federalism doctrine glimmers of a countervailing rule to the state functions doctrine. The article excavates the roots of the rule and finds support for a countervailing federalism-based doctrine permitting fruition of federal leadership on law enforcement problems submerged in state spheres but requiring national coordination. The article shows how the countervailing doctrine could work in permitting Congressional policy innovations to redress rap sheet flaws and address the new need, wrought by the Supreme Court's decision in Shepard v. United States, for criminal justice information systems to contain scanned certified copies of court records made or used in adjudicating guilt.

criminal law, criminal procedure, constitutional law, federalism, rap sheet, criminal history databases

Abstract:
This Article examines the consequences for Internet governance of observing traditional, state-centric sovereignty in multilateral cyberspace regulation by analyzing the World Intellectual Property Organization's Copyright Treaty. Three layers of protection for state sovereignty in the Treaty interact to produce a possible nonenforcement default of its protections for digitally transmitted materials in contracting states that profit more from sidestepping than securing copyright protections.

This nonenforcement default operates like a "penalty default" because it gives copyright-profiting states incentive to further bargain to avoid the default. This penalty default is not consciously set, but results from observing state sovereignty in regulating a supranational common resource against the backdrop of a cleavage in state interests over regulation. States with high economic interest in copyrighted material might respond with out-of-treaty bargaining to induce other states to enact regulations avoiding the default. Copyright-profiting states and certain private actors also will have increased incentive to erect electronic security fences and deploy other technologies that chill information flow. The resulting deliberation-deficient and undemocratic process for achieving regulation and nontransparent restrictions on information access may act as a hidden penalty default against piracy-profiting states and all concerned about information access and cyberspace governance, if not ameliorated by a multilaterally agreed mandatory fair use rule and establishment of a strong central dispute settlement body to enforce the treaty's terms.

World Intellectual Property Organization (WIPO) Copyright Treaty, penalty default, sovereignty, fair use, central dispute settlement body, Internet governance, multilateral cyberspace regulation