Essential, Not Expendable: Protecting the Economic Citizenship of Agricultural Workers

Introduction When the COVID-19 pandemic reached the United States in early 2020, the importance of agricultural workers became undeniable. Fear of food shortages seized the nation, and many people saw the shelves of grocery stores empty for the first time. On March 19, 2020, the Cybersecurity and Infrastructure Security Agency identified workers in the food and agriculture sectors as “essential critical infrastructure workers.”[1] This designation allowed agricultural workers to continue earning desperately needed wages, but these workers did so without adequate protection from COVID-19. Also Continue reading →

Pursuing Citizenship During COVID-19

Introduction Citizenship is a subject of growing interest in scholarly and policy discussions that aim to go beyond repairing the exclusionary immigration laws of the last several years to building a more inclusionary society. The essays in this symposium issue represent some of the best and brightest voices on citizenship. Their voices hail from law, sociology, political science, and history. They include university scholars, immigration practitioners, and immigrants living their lives in American society. As I shared in the keynote address, it was a pleasure—indeed, Continue reading →

Text Is Not Enough

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects gay and lesbian individuals from employment discrimination. The three opinions in the case also provided a feast for Court watchers who study statutory interpretation. Commentators across the ideological spectrum have described the opinions as dueling examples of textualism. The conventional wisdom is thus that Bostock shows the triumph of textualism. The conventional wisdom is wrong. Instead, Bostock shows what those who have studied statutory interpretation Continue reading →

Robophobia

Robots—machines, algorithms, artificial intelligence—play an increasingly important role in society, often supplementing or even replacing human judgment. Scholars have rightly become concerned with the fairness, accuracy, and humanity of these systems. Indeed, anxiety about machine bias is at a fever pitch. While these concerns are important, they nearly all run in one direction: we worry about robot bias against humans; we rarely worry about human bias against robots. This is a mistake. Not because robots deserve, in some deontological sense, to be treated fairly—although that Continue reading →

Leveling Up to a Reasonable Woman’s Expectation of Privacy

Various privacy law doctrines involve a reasonable expectation of privacy or similar analyses that take into account social privacy norms. For the most part, however, neither courts nor scholars have explicitly grappled with whether courts descriptively do or normatively should consider gender in deciding what constitutes a reasonable expectation of privacy. This is despite the fact that, in various scenarios, a reasonable woman’s expectation of privacy might vary from a man’s in light of different lived experiences, biological differences, and existing societal gendered privacy norms. Continue reading →

One Step Forward, Two Steps Back: How Attorney General Review Undermines Our Immigration Adjudication System

Introduction On June 1, 2011, Mr. E.F.H.L., a native and citizen of Honduras, entered the United States without inspection and subsequently applied for asylum and withholding of removal based on his fear of persecution.[1] After considering only the written application and brief, the immigration judge (IJ) determined that Mr. E.F.H.L. did not demonstrate his prima facie eligibility for relief and thus refused to hold an evidentiary hearing, which would have enabled Mr. E.F.H.L. to present oral testimony and other evidence.[2] On appeal, the Board of Continue reading →

Ball Never Lies: How Guaranteed Contracts Provide NBA Players More Security than NFL Players to Advocate for Social Justice

Introduction In 2013, Colin Kaepernick led the San Francisco 49ers to the National Football League (NFL) Super Bowl.[1] That same year, LeBron James dominated the National Basketball Association (NBA) Finals to secure a second-straight title for the Miami Heat.[2] In 2016, Kaepernick took a knee during the national anthem to bring attention to systemic racism and police brutality.[3] Meanwhile, James delivered a speech at the 2016 Excellence in Sports Performance Yearly (ESPY) Awards where he stated “Black lives matter” in support of the movement of Continue reading →

Introduction to the Symposium: The Stakes for Critical Legal Theory

On September 17, 2020, Donald Trump spoke at the so-called “White House Conference on American History.”[1] The conference mission, Trump explained, was to “clear away the twisted web of lies” propagated by “the left.” As Trump saw it, the problem wasn’t only that “left-wing mobs have torn down statutes of our founders, desecrated our memorials, and carried out a campaign of violence and anarchy.”[2] The challenge for historians was deeper, since “the left has warped, distorted, and defiled the American story with deceptions, falsehoods, and Continue reading →

Reloading the Canon: Thoughts on Critical Legal Pedagogy

On the first day of the first-year contracts class that I teach, I preview for the students both the general contours of the “blackletter law”[1] that we will be learning throughout the course, and some of the perspectives that I will incorporate in developing our critical thinking and analysis of the law. My aim is to impress upon the students that their understanding of the blackletter law––the technical training that many law students think of as constituting the bulk of their educational mission––varies positively with Continue reading →

The Critique and Praxis of Rights

The critique of rights has played a crowning role in critical philosophy. From Hegel to Marx, to Foucault and beyond—Duncan Kennedy, Christoph Menke, the contributors to this Symposium—the critique of rights has always represented an essential and inescapable step in the critique of modern Western society.[1] The reason is plain: conceptions of natural rights, human rights, and civil rights have been central to the founding of modern political thought (from Hobbes, Locke, and Wollstonecraft forward), to the birth and flourishing of legal and political liberalism Continue reading →