CFP: Legal History and Mass Migration

[We have the following call for papers.  DRE]

Legal Response to Mass Migration Between the 19th Century and the WWII 

Confronted with mass migration, since the mid-19th century Western legal culture was forced to face migrants not just as a sum of individuals, but as a phenomenon demanding new legal concepts and mechanisms appropriate to govern and regulate groups and collective subjects. European migrants moving towards colonies and the East led to a reconceptualization of traditional international law doctrines on state sovereignty in order to de-territorialize Western citizens who occurred to be in the Eastern countries, freeing them from the imperium of the local authority and entrusting them to their own consular courts. Whereas immigration into Western countries led to the adoption of protective legal strategies and exclusion mechanisms to bar the dangerous others, emigration of European citizens towards colonized regions and Eastern countries prompted the elaboration of exceptional safeguards and privileges for ‘civilizing’ migrants. The new challenges of mobility led jurists and legislators to reshape the peculiarity of ius migrandi through terminological as well as conceptual revisions (e.g. the notions of citizenship, sovereignty, territorial state, undesirable and dangerous alien), the elaboration of new disciplines such as international labor law and international migration law, and the creation of special administrative bodies or jurisdictions (e.g. immigration officers; board of inspectors; consular courts; inspectors of emigration; arbitral commissions for emigration).

The Legal History and Mass Migration project (PRIN 2017) invites proposals for papers relating to the theme of the juridical response to mass migration between the mid-19th century and WWII. Papers can be based on different methodologies and may refer to a broad variety of subjects, including, by way of example:

• application of methodologies such as global legal history, comparative legal history, critical analysis of law to the study of migration issues;

• relationship between local rules and international migration law;

• tensions between human rights’ recognition and border control policies;

• non-Western legal approaches to migration issues;

• construction of legal discourses, theories, justifications to support, contrast, govern, or limit mass migration;
  

• models of citizenship and integration or exclusion of alien immigrants in different countries;

• role of case law and/or resort to special tribunals with jurisdiction in migration issues as means of departing from ordinary rules and constitutional protections;
  

• institutional and informal mechanisms (such as ‘soft law’, role of unions or charitable institutions, nets of assistance of national citizens abroad etc.) adopted to deal with mass migration problems in different countries of both departure and destination;

• impact of mass migration on national and international labour law;

• racial paradigms and immigration laws;
  

• local/global economic impact of migration and its legal regulation;

• exploitation of criminal law concepts, discourses, practices to stir the public conviction about the social danger of mass migration

Proposals for papers are due by 30 March 2021 and should be submitted by e-mail at legalhistoryandmassmigration@gmail.com in Word format, following this order: (a) author(s); (b) affiliation; (c) e-mail address; (d) title of abstract; (e) body of abstract (apx 350 words).  Accepted papers will be presented at an international conference which will be held at the University of Naples in December 2021.  

Support for selected participants: funding for travel expenses and accommodation may be available. Please indicate with your paper proposal if you would like to be considered for a support, and if so, your expected expenses. All funding decisions will be made independently of paper acceptance.
Papers and pre-circulation: Please note that the conference panels will be structured around a short summary of speakers’ pre-circulated papers, followed by more extended discussion. It is our intention that accepted speakers will submit papers of no more than 4,000 words for circulation by Friday 22 October 2021.

For general inquiries, please email: info@legalhistoryandmassmigration.com

Conference Committee: Luigi Nuzzo (University of Salento), Michele Pifferi (University of Ferrara), Giuseppe Speciale (University of Catania), Cristina Vano (University of Naples Federico II).

Cox & Rodríguez, "The President and Immigration Law"

Oxford University Press has released The President and Immigration Law, by Adam B. Cox (New York University School of Law) and Cristina M. Rodríguez (Yale Law School). A description from the Press:

Who controls American immigration policy? The biggest immigration controversies of the last decade have all involved policies produced by the President — policies such as President Obama's decision to protect Dreamers from deportation and President Trump's proclamation banning immigrants from several majority-Muslim nations. While critics of these policies have been separated by a vast ideological chasm, their broadsides have embodied the same widely shared belief: that Congress, not the President, ought to dictate who may come to the United States and who will be forced to leave.

This belief is a myth. In The President and Immigration Law, Adam B. Cox and Cristina M. Rodríguez chronicle the untold story of how, over the course of two centuries, the President became our immigration policymaker-in-chief. Diving deep into the history of American immigration policy — from founding-era disputes over deporting sympathizers with France to contemporary debates about asylum-seekers at the Southern border — they show how migration crises, real or imagined, have empowered presidents. Far more importantly, they also uncover how the Executive's ordinary power to decide when to enforce the law, and against whom, has become an extraordinarily powerful vehicle for making immigration policy.

This pathbreaking account helps us understand how the United States has come to run an enormous shadow immigration system-one in which nearly half of all noncitizens in the country are living in violation of the law. It also provides a blueprint for reform, one that accepts rather than laments the role the President plays in shaping the national community, while also outlining strategies to curb the abuse of law enforcement authority in immigration and beyond.

More information is available here. A New Books Network interview with the authors is available here.

-- Karen Tani

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

Weekend Roundup

• 
  Julia Rose Kraut, the Judith S. Kaye Fellow for the Historical Society of the New York Courts, will speak on her book Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States in the Washington History Seminar of the National History Center of the American Historical Association on October 14 at 4:00 ET.  From the announcement: "Kraut also highlights lawyers, including Clarence Darrow and Carol Weiss King."  Register here.
  

• The US Customs and Border Patrol has asked the National Archives to "designate as temporary all records regarding CBP’s dealings with DHS’s Office for Civil Rights and Civil Liberties: a recipient of complaints of civil rights abuses from across the department."  More. 
  

• The Docket 3:3 is now online.
  

• The Federal Judicial Center has announced "Spotlight on Judicial History," a series of “brief essays, posted periodically, on a wide variety of interesting topics related to federal court history.  The first, by Jake Kobrick, is A Brief History of Circuit Riding.

• Lorianne Updike Toler, Information Society Project, Yale Law School, has posted The Publication of Constitutional Convention Records, a “ short history of the print and digital publication of all records of the Constitutional Convention, from 1787-2020.”
  

• The recording of the National History Center's congressional briefing, "Financial Responses to Economic Crisis," is here. 
  

• You had us at "Hughes": Avoiding Post-Election Chaos: Wilson vs. Hughes, 1916 by Matthew Waxman (Lawfare).  Also: a video on the history of housing discrimination in Arlington, VA.

• Update: Rutgers British Studies Center is hosting Empires of Law in Colonial South Asia this Monday at 12pm-1ET for a Q&A session (register here) with Tanya Agathocleous and our blogger Mitra Sharafi. The video talks are posted here.

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

David's "Kinship, Law and Politics"

Joseph E. David, Sapir Academic College, Israel, has published Kinship, Law and Politics: An Anatomy of Belonging in the Law in Context series of Cambridge University Press:

Why are we so concerned with belonging? In what ways does our belonging constitute our identity? Is belonging a universal concept or a culturally dependent value? How does belonging situate and motivate us? Joseph E. David grapples with these questions through a genealogical analysis of ideas and concepts of belonging. His book transports readers to crucial historical moments in which perceptions of belonging have been formed, transformed, or dismantled. The cases presented here focus on the pivotal role played by belonging in kinship, law, and political order, stretching across cultural and religious contexts from eleventh-century Mediterranean religious legal debates to twentieth-century statist liberalism in Western societies. With his thorough inquiry into diverse discourses of belonging, David pushes past the politics of belonging and forces us to acknowledge just how wide-ranging and fluid notions of belonging can be.

Some endorsements:

'Not since Charles Taylor have scholars seen such a profound inquiry into the sources of selfhood and the nature of belonging in community. Joseph David draws on a stunning range of ancient and modern, familiar and forgotten figures to probe the depths of human nature and our essential bonds of marriage and family, friendship and faith, property and state. This is interdisciplinary and interreligious scholarship of the highest caliber.'

John Witte, Jr. - Director of the Center for the Study of Law and Religion, Emory University

'Joseph David’s book is an immensely erudite and deep exploration of the meaning of belonging and identity. David’s brilliant examination of the belonging and identity in their different layers and in diverse historical settings, is of fundamental importance to the understanding of the complexity of the concept and the vital role it plays in contemporary political and cultural life.'

Moshe Halbertal - New York University

--Dan Ernst

McIntyre and Milne on "Alien" Power in Australia

 Joe McIntyre and Sue Milne, University of South Australia School of Law, have posted The Alien and the Constitution: The Legal History of the ‘Alien’ Power of the Australian Commonwealth:

The identity of a body politic is inevitably intertwined with that of the excluded other. The quintessential political ‘other’ is the ‘alien’. The express constitutional power to regulate ‘naturalisation and aliens’ in s51(xix) has come to be seen as the hook upon which to hang the Commonwealth’s power to regulate Australian nationality and citizenship. Given the Australian colonies were obsessed with exclusions, and the Commonwealth’s roll-out of the White Australia policy as one of its first legislative priorities on immigration, this connexion between alienage and immigration (and thus eventually citizenship) appears inevitable. It is, however, historically wrong. This article argues that the scope and purpose of the ‘aliens power’ has been miscast, and that as a matter of history its true analogue was the races power, not immigration. The power was designed to regulate the domestic disabilities of aliens (and the removal of those disabilities through naturalisation), just as the races power regulates the disabilities of particular classes of persons. Moreover, and contrary to subsequent jurisprudence, the meaning of ‘alien’ at Federation was clear and unambiguous. This article unpicks the history records to understand this purpose and meaning at Federation in a way that challenges our contemporary understanding of Australian identity.

--Dan Ernst

CFP: Unauthorized European Migrations to the United States

 We have the following Call for Papers:

Unauthorized European Migrations to the United States

        We solicit proposals for papers that explore unauthorized European migrations to the United States. We anticipate a university press will publish the papers as a volume edited by Danielle Battisti, Associate Professor of History at the University of Nebraska at Omaha and S. Deborah Kang, Associate Professor of History at the University of Texas at Dallas. Prior to the publication of the volume, the editors and organizers will convene at the University of Nebraska for workshops and a conference pertaining to the volume.        

         The conference and volume will afford scholars from the United States and the world to explore the origins, nature, and significance of irregular European migration flows to the United States from the nineteenth century to the present. In so doing, we aim to expand our current understanding of the history of illegality in the United States. The volume intends to examine how and why thousands of European migrants adopted illicit migration strategies to circumvent restrictionist immigration laws; excavate the roles of race and racism in the production and representation of European illegality; explore the impacts of illegality on the shaping of migrant politics, social worlds, and domestic lives; illuminate the development of US laws, policies, and institutions pertaining to the policing of undocumented immigration; and describe the impacts of these migrations on European sending states, among other topics.

         We welcome scholarly papers based on archival research as well as conceptual pieces that think critically about theory and terminology. Papers might focus on a specific European migrant group or examine unauthorized European migrations to the United States in a comparative context.  Those comparisons might consider European migrants in relation to other migrant groups; or may situate unauthorized European migration in a transnational or international context.  Interdisciplinary perspectives are welcomed.

         We seek submissions from scholars in the United States and abroad and of any rank or affiliation. By November 15, 2020, please send project proposals of 500-800 words and a one-page CV to Danielle Battisti (dbattisti@unomaha.edu) and S. Deborah Kang (sdkang2020@utdallas.edu). The proposal ought to describe the research project and its connection to the themes of the volume and the conference. If selected, authors should be prepared to submit full papers (approximately 8000 words with notations) for review by September 1, 2021.    

Please circulate to your networks and colleagues. 

-- Karen Tani