NewYorkUniversity
LawReview

Symposium Articles

2008

A Critical Guide to Vehicles in the Park

Frederick Schauer

The 1958 debate between Lon Fuller and H.L.A. Hart in the pages of the Harvard Law Review is one of the landmarks of modern jurisprudence. Much of the debate was about the relative merits of Hart’s version of legal positivism and Fuller’s brand of natural law theory, but the debate also contained the memorable controversy over the fictional rule prohibiting vehicles from the park. Hart used the example to maintain that rules have a core of clear applications surrounded by a penumbra of uncertainty, but Fuller offered a counterexample to insist that the language of a rule, by itself, could never determine any legal outcome. At one level, therefore, the debate was about the relative importance of language and purpose in applying a general rule to a particular issue. At a deeper level, however, the debate was about the formality of law and about the possibility of varying commitments to formality in different legal systems. By examining this debate, and by largely removing it from the surrounding controversy over positivism and natural law, we can gain valuable insights about legal rules, legal interpretation, and the nature of legal language.

Positivism and Legality: Hart’s Equivocal Response to Fuller

Jeremy Waldron

Lon Fuller, in his response to H.L.A. Hart’s 1958 Holmes Lecture and elsewhere, argued that principles of legality—formal principles requiring, for example, that laws be clear, general, and prospective—constitute the “internal morality of law.” This Article contends that Hart never offered a clear response. Fuller’s claim supposes that observance of the principles of legality is both fundamental to law and inherently moral. In different writings, Hart seems variously to affirm and to deny that legality is a necessary criterion for the existence of law. Likewise, he sometimes suggests and elsewhere scorns the idea that legality has moral significance. This Article proposes that Hart’s apparent inconsistency might actually reflect the complexity of the terms. Some degree of legality might be a prerequisite of law, while some failures of legality might not condemn it. Principles of legality might have contingent rather than inherent moral value, might have moral value that is severable from their legal value, or might have both positive and negative moral effect. The Article argues, furthermore, that even the conclusion Hart strains to avoid— that legality inevitably links morality and law—is compatible with Hart’s positivism and opens a promising field for positivist jurisprudence.

Practical Positivism Versus Practical Perfectionism: The Hart-Fuller Debate at Fifty

Benjamin C. Zipursky

This Article offers a new reading of Hart’s classic Positivism and the Separation of Law and Morals by rethinking the form of positivism Hart was putting forward. Hart’s separationism was not principally intended as a speculative proposition about the conceptual distinctness of law and morality but as a practical maxim about the need to distinguish what the law is from what the law ought to be. Hart believed that legal interpreters must display truthfulness or veracity about the law, being candid about what it actually says and how far it goes, rather than gilding the content of the law by ascribing to it what one wishes it said. “Practical positivism,” as Professor Zipursky calls it, was Hart’s antidote to the approaches of legal realism and natural law theory gaining ascendancy in American legal theory in the 1950s. Despite all of their differences, both realists and natural law theorists like Fuller treated the task of saying what the law is as inviting decision makers to make the law what it ought to be—“practical perfectionism,” in Zipursky’s terminology. Hart’s great lecture asserted, above all, that practical positivism was superior to practical perfectionism. Drawing upon a variety of contemporary examples, the Article suggests that the practical perfectionism that concerned Hart in 1958 is alive and well today among both conservatives and progressives—on the bench, at the bar, and in the legal academy. Conversely, originalists, textualists, and pragmatic conceptualists are among today’s descendants of practical positivists. The last half of the Article sketches a contemporary defense of practical positivism, adapting a Legal Coherentist framework to bolster Hart’s work against Ronald Dworkin’s criticisms.

2006

The Political Economy of Emigration and Immigration

Michael J. Trebilcock, Matthew Sudak

Trebilcock and Sudak consider the economic effects of both emigration and immigration and analyze optimal migration policies in source and destination countries with a view to evaluating their potential compatibility. Although emigration poses risks of fiscal loss and human capital depletion, the empirical basis for these fears is unclear given possible offsetting factors such as remittances, return migration, and skills transfer, initial incentives for education, and dynamic investment effects of citizens living abroad. Studies find mostly positive welfare gains from migration in immigration countries, with the possible exception of native workers with very low skills. In the labor market, immigration has not been shown generally to significantly depress wages or raise unemployment levels; it is generally a net fiscal benefit to source countries.

Perfecting Political Diaspora

Peter J. Spiro

This Article addresses the political rights of nonresident citizens. It first describes the trend towards extending to, and facilitating the exercise of, the franchise by external citizens. An increasing number of states permit nonresidents to vote, in many cases without requiring return to the homeland. The trend requires a changed conception of citizenship and nationhood, as political membership decouples from territorial location. The Article addresses objections to nonresident voting rights, including those based on assumptions that nonresidents will be irresponsible and uninformed voters, that they will form unpredictable and destabilizing voting blocs, and that nonresident voting will impose unsustainable logistical costs. None of these objections carry enough weight, empirically or normatively, to deny the franchise to nonresident citizens; voting rights are validated by the increasing degree to which nonresidents can access information and maintain significant interests in their home states. Nevertheless, the Article argues, voting rights need not be extended on a one-person, one-vote basis. In certain circumstances—in particular, cases in which the home state sets a low bar for nonresident citizenship
and where the nonresident citizen population is large relative to the resident population—it may be justifiable to accord lower proportional voting power to nonresidents, at least where their interests are discretely represented in national legislatures. In other words, once the concepts of nationhood and full citizenship are no longer bounded by geography, it may be normatively acceptable to derogate from the creed of formal equality among citizens and within the nation. The increasingly prominent practice of nonresident voting, the Article concludes, thus presents a formidable challenge to political liberalism.

The Race for Talent: Highly Skilled Migrants and Competitive Immigration Regimes

Ayelet Shachar

The United States has long been the ultimate “IQ magnet” for highly skilled migrants. But this trend has changed dramatically in recent years. Today, the United States is no longer the sole—nor the most sophisticated—national player engaged in recruiting the “best and brightest” worldwide. Other attractive immigration destinations, such as Canada, Australia, and the United Kingdom, have created selective immigration programs designed to attract these highly skilled migrants. Professor Shachar analyzes this growing competition among nations, referring to it
as the “race for talent.” Whereas standard accounts of immigration policymaking focus on domestic politics and global economic pressures, Professor Shachar highlights the significance of interjurisdictional competition. This new perspective explains how and why immigration policymakers in leading destination countries try to emulate—or, if possible, exceed—the skilled-stream recruitment efforts of their international counterparts. These targeted migration programs increasingly serve as a tool to retain or gain an advantage in the new global economy. Indeed, countries are willing to go so far as to offer a “talent for citizenship” exchange in order to gain the net positive effects associated with skilled migration. Such programs are clearly successful, as evidenced by the increase in the inflow of highly skilled migrants to those countries. Simultaneously, emigrants’ home nations have engaged in efforts to reap a share of the welfare-enhancing contributions generated by their highly skilled emigrants, including redefinition of the nation’s membership boundaries. This consequence of the race for talent raises significant questions about the relations between citizenship and justice, as well as mobility and distribution, on a global scale. For the United States, which has traditionally enjoyed an unparalleled advantage in recruiting global talent, these new global challenges come at a difficult time. They compound long-standing problems in America’s immigration system, which have only become more pronounced in the post-9/11 era.

Kim Barry’s Fruitful Provocation

Peter H. Schuck

If the raison d’etre of the scholar is to provoke thought and contribute to the growth and refinement of our understanding of important phenomena, Kim Barry has succeeded. It is the fate of those who die young to be forever bathed in, but also obscured by, the luster of their promise. Our loving hopes for them often overshadow what they wanted for themselves and would have done with their talents. In Barry’s case, however, this possible confusion is dispelled by the fact, fully revealed by this Symposium, that her ambition to be a notable legal scholar has already been realized. Her actual achievement, not merely her youthful ambition, has fulfilled the great promise that her New York University mentors, many friends, and devoted family saw in her. For one who, at the time of her death, had just taken her first step in what would surely have been a long and rewarding scholarly journey, this represents an immense personal triumph. This triumph is illuminated and celebrated in these pages, which I think of as an extended thank-you note acknowledging our debt to her.

Transnational Politics and the Democratic Nation-State: Normative Challenges of Expatriate Voting and Nationality Retention of Emigrants

Ruth Rubio-Marín

In this piece, Ruth Rubio-Marín discusses how emigrant citizenship (understood as emigrants’ efforts to remain included in their national communities and the efforts by emigration states to encourage this) relates to the prevailing notion of the nationstate. She argues that emigrant citizenship challenges some of the traditional elements of the nation-state construct, such as the mutually exclusive and territorially bounded notion of political belonging, while, on the whole, reasserting the relevance of national membership. The piece then turns to the normative force of the concept of emigrant citizenship, focusing on two of the claims that are more commonly
articulated by expatriates: absentee voting and a right to retain their nationality of origin even if they naturalize in the country of residence. Rubio-Marín argues that emigrants have a right to retain their nationality of origin, and with it, a sense of national identity, their ties with the country of origin, and the option to return, even if they naturalize abroad. Yet she finds that they do not have a similar right to absentee voting. Instead, absentee voting should only be seen as an option that, under certain circumstances, sending countries may legitimately embrace. This holds true, she claims, regardless of expatriates’ contributions to the national economies through remittances or other forms of capital inflow.

Rethinking Emigrant Citizenship

David Fitzgerald

The relationship between states and absent citizens is an object of increasing interest in law, history, and the social sciences. On a world-historical scale, what appears unprecedented is the legitimate prevalence of dual nationality, and in many source countries, the government’s active promotion of dual nationality and dual cultural nationalism. While interest in extraterritorial citizenship fades over time and the course of generations, there are important exceptions for a core of activists whose trans-state political participation actually increases over time spent outside the home country and for migrants in contexts where the relative fortunes of sending and receiving countries reverse over longer time frames. An increasingly common way of framing a sending “nation” is to include members living outside the state’s territory in a way that reinforces the domestic and even international capacity of the sending country’s government. This Article argues that most legal means by which emigrants are incorporated maximize individual liberty, but their extraterritorial political participation comes at the cost of allowing members to make policies to which they are not directly subject and to tilt citizenship towards claiming rights rather than fulfilling obligations.

Homeward Bound

Anupam Chander

In Home and Away: The Construction of Citizenship in an Emigration Context, Kim Barry argues that more attention must be paid to the emigrant and to the policies of emigration states. Taking up her suggestion, this Article closely describes the array of devices that emigration states have used to nurture bonds with their expatriates. The taxonomy offered here subdivides these bonding mechanisms into political, economic, and cultural devices. Governments seeking to cement political ties have offered dual citizenship, voting from abroad, direct representation of expatriates, special visas for the diaspora, and government-issued diaspora membership documents. States have sought to capitalize on the economic strength of their overseas members by soliciting their support for sovereign “diaspora bonds,” development programs, and direct investment. They have also sought to attract returnees, who will often bring with them significant financial and human capital, and to ease return by negotiating for returnees’ pensions to be transferred to them from the nation in which they worked. Finally, nations have sought to reshape their own collective image to include the diaspora, achieving this through explicit state recognition of the diaspora, establishment of agencies to serve the diaspora, legal protections for their overseas citizens, and special outreach to youth and retirees living abroad. The second half of the Article turns to the question of whether there are any instances when host states’ laws would prevent emigration states from pursuing these sorts of bonding mechanisms with their overseas citizens. Working with U.S. law as a test case, it appears that constitutional safeguards for civil liberties limit the U.S. government’s ability to regulate emigration states’ efforts to maintain ties with their diaspora members residing in the United States. However, these limits are relaxed when U.S. foreign policy concerns, particularly ones relating to national security, are at stake. Further, U.S. laws of general applicability,such as securities laws, and U.S. courts’ unwillingness to enforce foreign revenue laws may make it more difficult for emigration states to pursue certain bonding mechanisms. Despite these limits, though, the domestic laws of immigration states like the United States should provide sufficient space for emigration states to bond with their diasporas. The Article concludes with a tribute to Kim Barry and the power of her voice.