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Under the UNHCR definition of a refugee, set out in the 1967 Protocol Relating to the Status of Refugees, people fleeing their homes because of natural disasters or other environmental problems do not qualify for refugee status and the protection that come from such status. In a recent paper, "Who Are Refugees?", I defended the essentials of the UNHCR definition on the grounds that refugee status and protection is best reserved for people who can only be helped by granting them (...) refuge in a safe state for an indefinite period of time, and argued that this does not include most people fleeing from natural disasters. This claim is most strongly challenged by possibility of displacement from climate change. In this paper I will explore to what degree the logic of the refugee convention, as set out in my earlier paper, can and should be extended to those fleeing the results of climate change, and will argue that the logic of the refugee convention tells in favor of extending refugee protection to a portion of those who must flee their homes because of climate-change related environmental problems. (shrink)

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Although there is now a large and sophisticated literature on ethical or moral matters relating to family immigration and immigration enforcement, the intersection of these topics has not been greatly explored. This is unfortunate, as particular and difficult normative issues arise in relation to immigration enforcement when applied to children and to families where some members are unauthorized migrants and others are citizens or authorized migrants (“mixed-status” families). This chapter addresses this deficit, explaining some of these special difficulties and providing (...) suggestions as to how they may be addressed. (the file below is a final pre-publication version. Please cite to the published version.). (shrink)

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In this paper I provide a philosophical analysis of family-based immigration. This type of immigration is of great importance, yet has received relatively little attention from philosophers and others doing normative work on immigration. As family-based immigration poses significant challenges for those seeking a comprehensive normative account of the limits of discretion that states should have in setting their own immigration policies, it is a topic that must be dealt with if we are to have a comprehensive account. In what (...) follows I use the idea of freedom of association to show what is distinctive about family-based immigration and why it ought to have a privileged place in our discussion of the topic. I further show why this style of argument neither allows states to limit nearly all immigration nor requires them to have almost no limits on immigration. I conclude by showing that all states must allow some degree of family-based immigration, and that this is a duty owed not to ‘outsiders’ seeking to enter, but rather to current citizens. (shrink)

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Family ties play a particular and distinctive role in immigration policy. Essentially every country allows ‘family-based immigration’ of some sorts, and family ties may have significant importance in many other areas of immigration policy as well, grounding ‘derivative’ rights to asylum, providing access to citizenship and other benefits at accelerated rates, and serving as a shield from the danger of removal or deportation. Furthermore, status as a child may provide certain benefits to irregular migrants or others without proper immigration standing (...) that is not available to adults. Despite the fact that these benefits are extremely widespread, the justification for them remains less than fully clear, and the extent of the benefits required by considerations of justice (as opposed to expediency or other policy considerations) is debated. While essentially all states recognize at least some of these rights, a significant number of them wish to reduce, rescind, or place significant conditions on them. The role of the family in immigration policy, then, stands in need of further clarification. In this paper I attempt to provide the needed clarification and justification. I discuss first questions about family unification or formation, focusing in particular on how broad a right must be provided by states wishing to have a just immigration policy, and on whether this right violates norms of liberal neutrality. I then discuss the family in relation to refugee and asylum policy, considering both when family ties should be given weight in refugee protection decision and when harm to a family member should, on its own, be able to be grounds for applying for refugee protection. I turn next to the question of when, and to what extent, family ties should be able to serve as a “shield” to removal or deportation, and finish with a discussion of the special rights of and obligations to children in immigration settings. (shrink)

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Over the last few years, an increasingly sophisticated literature devoted to normative questions arising out of the enforcement of immigration law had developed. In this essay, I consider what sorts of constraints considerations of justice and legitimacy may place on the enforcement of immigration law, even if we assume that states have significant discretion in setting their own immigration policies, and that open borders are not required by justice. I consider constraints placed on state or national governments, constraints on enforcement (...) by substate governments, and constraints on the actions of individuals. I show that there are significant limits on what states may do and what they may require substate governments and individuals to do, in enforcing their immigration laws, but that these constraints are not clearly incompatible with significant state discretion in setting immigration policy. Nonetheless, consideration of justice in enforcement is necessary for any complete normative account of immigration. (shrink)

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A Significant percentage of the people outside their country of citizenship or residence who are unable to meet their basic needs on their own, and need international protection, do not fall under the definition set out in the UN Refugee Convention. This has led many - both academic commentators and activists - to call for a new, expanded refugee definition, preferably backed up by a new, binding, international convention. In earlier work I have resisted this call, arguing that there is (...) good reason to pick out a sub-stet of those in need of international aid - a set that largely, if not completely, corresponds to those picked out by the Refugee Convention - for special benefit and protection. However, even if Convention refugees are in some ways special, we are left with the question of what, if anything, is owed to those in need of aid who are not Convention refugees. In this chapter, I set out philosophical foundations for so-called complementary protection, and show how this may and should apply to people in need of international aid who are not Convention refugees. (shrink)

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It is now widely expected that climate change will be serious enough that a very large number of people will be displaced from their homes because of events relating to or resulting from climate change. Such events may include rising sea levels (and resulting increased salination of ground water), stronger hurricanes and tropical storms, drought, floods, increased and more intense wildfires, and other extreme or (previously) unusual weather events. Although estimates vary widely, it seems very likely that many millions of (...) people—perhaps hundreds of millions if sufficient precautions are not taken—will be forced from their homes by these events related to climate change. In the public imagination, much of the attention has been on ‘climate refugees’, where this is taken to mean people who have crossed borders. However, there is good reason to believe that a very large percentage—probably a significant majority—of displacement resulting from climate change will be, or could be, internal. In this chapter I argue that there are likely to be a large number of cases where internal displacement related to climate change is of international concern, and where, therefore, states have significant moral reasons to provide assistance, either directly to those displaced, or else to the state in which the displacement has taken place. My claim is that internal displacement arising from climate change is of international concern and so grounds a duty of aid by states able to provide it, when this displacement threatens the basic human rights of those displaced, and when the local or domestic government cannot or will not take the necessary steps to meet the needs and protect the rights of those who are displaced. (The uploaded version of this paper is an uncorrected proof. Please cite and refer to the published version.). (shrink)

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Crises of forced migration are, unfortunately, nothing new. At the time of the writing of this paper, at least two such crises were in full swing – mass movements from the Middle East and parts of Africa to the E.U., and major movements from Central America to the Southern U.S. border, including movements by large numbers of families and unaccompanied minors. These movements are complex, with multiple causes, and it is always risky to attempt to craft either general policy or (...) philosophical positions in response to salient crises. However, both of these instances do bring to the foreground important questions about the proper purpose and extent of refugee protection as a means of dealing with crises of forced migration. In particular, both of these instances force us to consider what role persecution on the basis of a protected ground – race, religion, nationality, membership in a particular social group, or political opinion – ought to play in granting refugee protection, and whether our response to those in danger should change if the agents of persecution are non-state actors. This paper is not primarily about the problems arising from Syria or Central America. In a way similar to how hard cases make bad law, I contend that a too central focus on salient crises tends to lead to bad theory and often to bad general policy. However, if I am successful in my goal of clarifying the place of persecution and non-state action in refugee protection, then we may in turn be better able to think clearly about our current crisis situations. -/- In this paper I will first draw on my previous work on the normative logic of the refugee convention to argue that, while persecution should play an important, and even central, role in our thinking about refugees, this importance is shallow and pragmatic rather than deep and fundamental. Next, I will show how this conclusion supports the claim that harms amounting to persecution by non-state actors may ground an asylum claim, at least in some cases, both when the state is unwilling and when it is unable to protect its members. I consider two cases: first, instances where the authority and power of the state has been usurped by another power, and second, when the state has (implicitly or explicitly) delegated its power or authority to non-state actors. I will show how this leads to extending asylum to a broader range of people than traditional accounts would. -/- (To download this paper, please use the link from SSRN below.). (shrink)

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In this chapter I focus on two problems facing immigration systems around the world, and Australia in particular. The topics addressed are chosen because each one involves important fundamental rights and because significant improvement in these areas is possible even if each state acts alone, without significant coordination with others. First, I examine refugee programmes, focussing specifically on the ‘two- tier’ refugee programmes pioneered by Australia with the introduction of Temporary Protection Visas by the Howard Government in 1999. Next, I (...) look at recent declines in refugee resettlement schemes from already stingy levels and, in relation to Australia in particular, I show how the tying of resettlement numbers to the number of affirmative asylum claims granted is both wrong- headed and counterproductive. The second area of immigration policy explored is family migration, another area where immigration systems around the world have been moving in the wrong direction, often via less than transparent administrative processes. Australia is no exception. While Australia’s family migration system is reasonably good on its face, in practice there are several factors which make the programme significantly less than satisfactory from the perspective of protecting the basic rights of migrants and, arguably more importantly, citizens. These problems can and should be fixed in straightforward ways, and since doing so would be more just, would have few— if any— significant negative consequences, and in fact would have a number of clear benefits, those changes should be made. (shrink)

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Many of the major self-determination movements of the 20th and early 21st Centuries did not go smoothly, but resulted in forced or semi-forced transfers of groups of people from one country to another. Forced population transfers are not, of course, supported by major theorists of self-determination and secession. However, the problems that make population transfers extremely common in actual cases of self-determination and secession, are not squarely faced in many theories of self-determination. And, I shall argue, certain leading theories of (...) self-determination and secession would make population transfers almost inevitable in practice, even if not called for or sanctioned in theory. This is a major stumbling block for any attempt to move from an abstract account of self-determination towards a working theory. In this paper I take a first step towards addressing this problem. I shall show how any approach to dealing with secession, including “primary rights” accounts, “remedial rights only” accounts, and even “consensual” accounts, must be able to deal with the inevitable problem of population transfers, if it is to be a complete and plausible theory. I shall also show how population transfers, to the extent that we can always expect them to take place, can be made as just as possible, in light of any approach to the problem of secession. I will not here attempt to adjudicate between different approaches to secession and self-determination. To that extent, my argument may be seen as a friendly addition to all of the above approaches, showing how they may try to meet an objection which they have not yet faced. (shrink)

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The border is an area where the rule of law has often found difficulty taking root, existing as law-free zones characterized by largely unbounded legal and administrative discretion. In his important new book, The Rule of Law in the Real World, Paul Gowder deftly combines historical examples, formal models, legal analysis, and philosophical theory to provide a novel and compelling account of the rule of law. In this paper I consider whether the account Gowder offers can provide the tools needed (...) to bring the border under the rule of law. I argue that on Gowder’s account, there are two ways in which we might try to extend the rule of law to the border.The first is to look at concrete connections that current citizens or members of the political community have with non-citizens. Just as the interests of current citizens give them strong reasons to coordinate to establish the rule of law in their own community, so may the interests of current members in connections with nonmembers give them reason to work to extend the rule of law to the border. These interests can include family ties, other forms of personal relationships, offers of employment, intellectual connections, and others. Some of these connections already serve to give greater legal protections, including protections from arbitrary decision-making, to some non-citizens, and the general trend, I argue, can and should be further strengthened The second method for extending the rule of law to the border involves appealing to certain universal norms so as to build a sense of community that stretches beyond borders. While these norms are not as robust or well established as domestic law, and therefore are unlikely to extend all of the protections of the rule of law to all people at the border, they can, I argues, be a basis for working against the worst arbitrary actions by border officials. I conclude by considering the vexed dispute about providing “amnesty” for unauthorized immigrants in the United States and other countries. I argues that Gowder’s account of the amnesty provided to supporters of the oligarchic coups in ancient Athens provides a model for thinking about when and how amnesties for unauthorized migrants can be done without offending the rule of law, thereby making them more palatable to current citizens. (Please download this paper for free from SSRN on the link provided on this page). (shrink)

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Many international law scholars have begun to argue that the modern world is experiencing a "decline of citizenship," and that citizenship is no longer an important normative category. On the contrary, this paper argues that citizenship remains an important category and, consequently, one that implicates considerations of justice. I articulate and defend a "civic" notion of citizenship, one based explicitly on political values rather than shared demographic features like nationality, race, or culture. I use this premise to argue that a (...) just citizenship policy requires some form of both the jus soli (citizenship based on location of birth) and the jus sanguinis (citizenship based on "blood" or descent) approaches to citizenship acquisition. In the course of this argument I show why arguments made by Peter Schuck, Rogers Smith, Peter Spiro, Linda Bosniak, and Ayelet Shachar, among others, against this view, are mistaken. This justice-based approach to citizenship also has significant implications for naturalization law and policy. First, I argue that it requires open and easy naturalization and show why the use of naturalization policy to foster national identification is wrong. Second, I demonstrate that if naturalization is easy and open, some rules limiting certain social benefits and privileges to citizens may be compatible with justice, thereby providing a foundation for future discussions of alienage law. (shrink)

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In this short paper I hope to use some ideas drawn from the theory and practice of civil disobedience to address one of the most difficult questions in immigration theory, one rarely addressed by philosophers or other theorists working on the topic: How should we respond to people who violate immigration law? I will start with what I take to be the easiest case for my approach—that of so-called “Dreamers”—unauthorized immigrants in the US who were brought to this country while (...) still children (often as infants) and who have spent the majority of their lives in the US. Members of this group have engaged in wide-scale protests, making the civil disobedience paradigm all the more plausible. I will then move on to the case of unauthorized immigrants who have engaged in protests, but who do not fall into the “Dreamer” category. Finally, I will consider whether thinking about immigration law violations from the perspective of civil disobedience—and the proper response to that—can help us think about immigration enforcement more generally. (shrink)

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The idea of “promoting democracy” is one that goes in and out of favor. With the advent of the so-called “Arab Spring”, the idea of promoting democracy abroad has come up for discussion once again. Yet an important recent line of thinking about human rights, starting with John Rawls’s book The Law of Peoples, has held that there is no human right to democracy, and that nondemocratic states that respect human rights should be “beyond reproach” in the realm of international (...) relations. This is, for obvious reasons, a controversial view, especially given the powerful and important arguments purporting to show that democracies do significantly better than nondemocracies in promoting internal peace and equality, and in engaging in peaceful international cooperation. Both proponents and opponents of the Rawlsian view of human rights have argued that the view implies that democracies may not “promote democracy” in nondemocratic societies. But, given that all parties to this dispute agree that democracy is necessary for justice, and given the important instrumental goods provided by democracy, the Rawlsian view has seemed deeply implausible to many. -/- In this paper I blunt this challenge to the Rawlsian view by showing how, even if there is no human right to democracy, we may still rightfully promote democracy in a number of ways and cases. Showing this requires investigation of what it means to “promote democracy”, and a more careful inspection of when various methods of promoting democracy are appropriate than has been done by most political theorists working on human rights. When we look carefully, we can see that in some instances acceptable forms of promoting democracy are compatible with the Rawlsian view of human rights, and that this view is therefore not vulnerable to the “instrumentalist” challenge. We also see how, if political philosophy is to be useful, it must be less abstract and look closely at actual cases. -/- This paper posted by permission of the Board of Trustees of the Leland Stanford Junior University. For information visit the Stanford University website. (shrink)

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According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a (...) contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but important role for actual consent in legitimating international law. While actual consent is not necessary for justifying the enforcement of jus cogens norms, at least when they are narrowly understood, this leaves much of international law unaccounted for. By drawing on a Lockean social contract account, I show how, given the ways that international cooperation is different from cooperation in the domestic sphere, actual consent is both a possible and an appropriate legitimating device for much of international law. (shrink)

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Employers seeking to control employee behavior outside of working hours is nothing new. However, recent developments have extended efforts to control employee behavior into new areas, with new significance. Employers seek to control legal behavior by employees outside of working hours, to have significant influence over employee’s health-related behavior, and to monitor and control employee’s social media, even when this behavior has nothing to do with the workplace. In this article, I draw on the work of political theorists Jon Elster, (...) Gerald Gaus and Michael Walzer, and privacy scholars Daniel Solove and Anita Allen, to show what is wrong with this extension of employer control of employee’s outside of work behavior. I argue that there are ethical limits on the controls that employers may put on their employees’ out of work behavior, and that many of these limits should be enshrined into legal protections which would prevent employers from conditioning employment on the regulations criticized. -/- (Please note that the version of this paper on SSRN is a pre-publication version. Please cite and refer to the published version when possible.). (shrink)

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In her important book Promoting Justice Across Borders, Lucia Rafanelli offers a detailed account of ‘reform interventions’, seen as ‘any deliberate attempt to promote justice in a foreign society’. Such interventions, she argues, can and should be subject to ethical evaluation, including standards relating to toleration, legitimacy, and collective self-determination. While I am sympathetic to many of Rafanelli's arguments, in this essay I will argue that, for a large number of cases this complex moral machinery is not needed, because the (...) acts in question either are, or could be, morally indifferent when looked at from the perspective of interaction between members of the international community. In particular, I argue that many market or economic interactions between states fall into this morally indifferent zone, and so need not meet the standards set out by Rafanelli to be acceptable. (shrink)

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How to respond to unauthorized migration and migrants is one of the most difficult questions in relation to migration theory and policy. In this commentary on Gillian Brock’s discussion of “irregular” migration, I do not attempt to give a fully satisfactory account of how to respond to unauthorized migration, but rather, using Brock’s discussion, try to highlight what I see as the most important difficulties in crafting an acceptable account, and raise some problems with the approach that Brock takes. In (...) thinking about unauthorized migration, both while trying to craft positive policies and while critiquing existing practices, we need to ask if we are most interested in a general account of how to respond to unauthorized migration, one that would apply to the large majority of cases and provide us a default approach, or if we are better served by taking a piecemeal approach, looking at why certain people or certain groups should be exempt from removal, even if they would otherwise be liable to it. In this paper, I will focus primarily on this distinction, and argue that it is at least important to provide an account of the "generic unauthorized". (shrink)

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This is a short introduction to a book symposium on Paul Gowder's recent book, _The Rule of Law in thee Real World_ (Cambridge University Press, 2016). The book symposium will appear in the St. Luis University Law Journal, 62 St. Louis U. L.J., -- (2018), with commentaries on Gowder's book by colleen Murphy, Robin West, Chad Flanders, and Matthew Lister, along with replies by Paul Gowder.

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Despite marked improvements in rights for LGBTQ persons around the world, significant problems remain.  In many countries, LGBTQ persons face significant discrimination, lack of protection from harm by non-state actors, and persecution from their own governments. This article examines when and why protection under the UN Refugee Convention should be granted to those seeking asylum or refugee status because of maltreatment related to their LGBTQ status. To this end, Part II shows how LGBTQ asylum seekers straightforwardly fit into the definition (...) of a “refugee” set out in the UN Refugee Convention. Subsequent Parts address how to overcome some potential complications arising out of the sorts of harms faced by LGBTQ applicants without significant modifications to the standard refugee definition.  The article then turns to two further areas of practical difficulty for LGBTQ asylum seekers and suggest approaches and reforms to deal with these problems. The first issue involves the interaction between considerations around the family and refugee and asylum law. While the legal protections of the rights of LGBTQ families have improved in many countries, difficulties remain, and even in cases where these rights have been granted by a state, there are often special difficulties faced by LGBTQ asylum seekers.  The article therefore proposes and justifies certain reforms in this area. Finally, the article address questions and concerns about the type of evidence that may be demanded by those adjudicating asylum and refugee cases involving LGBTQ applicants. (shrink)

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This chapter examines three approaches to applied political and legal philosophy: Standard activism is primarily addressed to other philosophers, adopts an indirect and coincidental role in creating change, and counts articulating sound arguments as success. Extreme activism, in contrast, is a form of applied philosophy directly addressed to policy-makers, with the goal of bringing about a particular outcome, and measures success in terms of whether it makes a direct causal contribution to that goal. Finally, conceptual activism (like standard activism), primarily (...) targets an audience of fellow philosophers, bears a distant, non-direct, relation to a desired outcome, and counts success in terms of whether it encourages a particular understanding and adoption of the concepts under examination. (shrink)

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These are for entries for _The Cambridge Rawls Lexicon_, edited by Jon Mandle and David Reidy, on H.L.A. Hart, Charles Beitz, Sovereignty, and Citizen.

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The debate over the use of genetically-modified (GM) crops is one where the heat to light ratio is often quite low. Both proponents and opponents of GM crops often resort more to rhetoric than argument. This paper attempts to use Philip Kitcher’s idea of a “well-ordered science” to bring coherence to the debate. While I cannot, of course, here decide when and where, if at all, GM crops should be used I do show how Kitcher’s approach provides a useful framework (...) in which to evaluate the desirability of using GM crops. At the least Kitcher’s approach allows us to see that the current state of research in to, and use of, GM crops is very far from the ideal of a well-ordered science and gives us a goal to work towards if we wish to achieve a more well-ordered agricultural policy. (shrink)

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In his _Natural Law and the Nature of Law_, Jonathan Crowe has written an important and interesting book, one that should be read by people interested in jurisprudence, ethics, and political philosophy. Its distinctive strength is in the way Crowe shows how much can be done within a natural law framework that does not assume a theological background. A distinctive feature of Crowe's approach to natural law, one that distinguishes it from other well-known approaches, is its argument that only a (...) minimal state, if any state at all, is required by or even compatible with natural law. It is this claim that I focus on in this paper. I show that these anti-state arguments do not work, and that a much more robust, largely state-like, type of political society is necessary if the requirements of natural law that Crowe accepts are to be met. In doing this, I also draw some related conclusions about the proper understanding and reach of the common good. In arguing for this conclusion I do not attack Crowe's general approach, but rather make what I hope to be an internal critique of the argument. If I am successful in this, then there will be reason for people who are sympathetic to the overall project to reject some of Crowe’s sub-conclusions, even if they wish to remain working in the natural law tradition overall. And, there will be reason to accept that something like the modern state will be necessary - at least for some time and for people like us - if we are to live good lives. (shrink)

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This chapter examines three approaches to applied political and legal philosophy: Standard activism is primarily addressed to other philosophers, adopts an indirect and coincidental role in creating change, and counts articulating sound arguments as success. Extreme activism, in contrast, is a form of applied philosophy directly addressed to policy-makers, with the goal of bringing about a particular outcome, and measures success in terms of whether it makes a direct causal contribution to that goal. Finally, conceptual activism (like standard activism), primarily (...) targets an audience of fellow philosophers, bears a distant, non-direct, relation to a desired outcome, and counts success in terms of whether it encourages a particular understanding and adoption of the concepts under examination. (shrink)

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In this paper I argue that anyone who accepts a Rawlsian account of justice should favor granting family-based immigration benefit to same-sex couples. I first provide a brief over-view of the most relevant aspects of Rawls's position, Justice as Fairness. I then explain why family-based immigration benefits are an important topic and one that everyone interested in immigration and justice must consider. I then show how same-sex couples are currently systematically excluded from the benefits that flow from family-based immigration rights. (...) Next I argue that people in the constitutional and legislative stages of Rawls's original position would act to protect family-based immigration rights for themselves and show how these rights are rights of the current citizens of a state to bring in certain outsiders and not rights of outsiders seeking to enter. Importantly, this argument takes place entirely within the bounds of Rawls's domestic theory of justice and does not make reference to his more controversial views found in his account of international justice. I then show that there is no acceptable reason to restrict these rights to opposite-sex couples and good reason to extend them to same-sex couples. Finally I consider two objections to my account and show why they do not threaten my conclusion. (shrink)

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Allen Buchanan’s ‘The Heart of Human Rights’ addresses the moral justification of the international legal human rights system. Buchanan identifies two functions of the ILHRS: a well-being function and a status egalitarian function. Because Buchanan assumes that the well-being function is sufficientarian, he augments it with a status egalitarian function. However, if the well-being function is utilitarian or prioritarian, there is no need for a separate status egalitarian function, because the status egalitarian function can be subsumed by the utilitarian or (...) prioritarian well-being function. (shrink)

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This paper proposes a novel use of tax policy to address one of the most pressing issues arising from economic globalization and international migration, that of “brain drain” – in particular, the migration of certain skilled and highly trained or educated professionals from less and least developed countries to wealthy “western” countries. This problem is perhaps most pressing in relation to doctors, nurses, and other medical professionals, but exists also for teachers, lawyers, economists, engineers, and other highly skilled or trained (...) professionals. While there have been other proposals in the past to use tax policy to address brain drain (most famously versions of the so-called “Bhagwati Tax”, a form of exit tax), in this paper I provide an account of and justification for using tax credits, modeled loosely on the foreign tax credits U.S. citizens receive in certain situations for taxes paid in other countries. My proposal avoids several of the pitfalls of other methods of using tax policy to ameliorate the harms of brain drain, as it does not subject people from the developing world to potentially onerous double taxation, and does not depend on sophisticated tax collection capabilities within developing countries, capabilities which are often lacking. Additionally, my proposal also leads to fewer morally problematic restrictions on the liberty of citizens of less and least developed countries than do non-taxed based alternative proposals, such as temporary bans on migration. While the proposal cannot hope to completely solve the problems that arise in relation to brain drain – no approach can do this – it does provide a straightforward way to ameliorate the problems that arise from it without placing significant financial or liberty burdens on already less advantaged people from the developing world. -/- (This paper may be downloaded for free from the link to my SSRN page below). (shrink)

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Following are two short contributions to the book, _Criminal Law Conversations_: commentaries on Paul Robinson's discussion of "Empirical Desert" and Antony Duff & Sandra Marshal's discussion of the sharing of wrongs.

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It is a common charge that treaties, perhaps especially recent treaties relating to economic activity, provide unreasonable restrictions on the sovereignty of the state parties. While this charge has been made most forcefully by smaller states, it is sometimes raised with justification by larger states or state-like bodies such as the E.U. as well. When a tribunal judging a dispute on an economic treaty tells a state that it may no longer make decisions such as to accept or reject genetically (...) modified foods, allow internet gambling, or produce generic drugs for domestic consumption, the citizens of the state may rightfully think they have lost important aspects of sovereignty to bodies that do not have legitimate authority to govern. This, in turn, makes negotiating treaties, despite their obvious value, much harder than it otherwise would be, leading to decreased cooperation and the forgoing of potentially significant gain. In this paper, I argue that by importing certain ideas from contract theory to the interpretation of treaties, these worries may be significantly reduced. Contracts have the seemingly paradoxical ability to increase the autonomy of the signers by allowing them to bind themselves to perform certain future actions. But, the ability of contracts to perform this function would be greatly reduced if the only possible remedy for breach were specific performance. Yet, an analogous approach to treaties is common among many important theorists of international law, who demand the equivalence of specific performance in the case of treaties. I will show how importing ideas from contract law can help ensure that treaties, especially economic treaties, are sovereignty-enhancing for states in a way that is similar to the way that contracts may be autonomy-enhancing for individuals, and will show that importing these elements from contract law will strengthen, not undermine, the legitimacy and fairness of international law. (Please download the full paper from SSRN at the link on this page). (shrink)

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Over the last several years asylum cases relating to activities of criminal gangs have greatly increased in frequency. Cases involving Central American gangs, the so-called maras, have attracted the most attention but similar cases have arisen out of South Eastern and Eastern Europe as well. Applicants in such cases face a number of difficulties as their cases do not fit into paradigm categories for asylum claims. These cases almost always involve non-state actors, for example, acting for reasons that are not, (...) at least at first glance, clearly political. Additionally, the reasons why gangs target particular individuals often do not obviously fit into one of the traditional protected grounds. If applicants fleeing gang activity are to successfully apply for asylum they will have to overcome these apparent difficulties. In this paper, a contribution to the University of Memphis Law Review Spring Symposium on immigration reform, I break down gang-related asylum claims into three main categories and show how at least some cases in each category fit within the area set out for protection by asylum and refugee law. I briefly discuss a conceptual framework which explains how some gang-related cases should be seen as falling in the area that asylum law seeks to protect (thereby providing a concrete example of the sort of protection that I claim in my dissertation refugee law is meant to provide) and give advice to practitioners about how to formulate meritorious claims. (shrink)

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Temporary labor migration programs have been among the most controversial topics in discussions of immigration reform. They have been opposed by many, perhaps most, academics writing on immigration, by immigration reform activists, and by organized labor. This opposition has not been without some good reasons, as many historical temporary labor migration programs have led to significant injustice and abuse. However, in this paper I argue that a well-crafted temporary labor migration program is both compatible with liberal principles of justice and (...) likely to be an important part of a sensible immigration policy for the near future, at least. I show how the many injustices and high potential for abuse of earlier programs may be avoided. I also show good reason to favor a well-crafted temporary labor migration program over either the more likely alternative outcome of officially tight borders (which would almost certainly maintain our current dependence on large-scale unauthorized immigration) and the much less likely option of nearly open borders. As increased labor migration of all sorts is an intrinsic part of increased economic globalization, it is especially important to craft guidelines for just temporary labor migration programs if we are to both gain the advantages of globalization and protect the rights of workers. (shrink)

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The Heart of Human Rights develops an account of human rights as legal entities that serve important moral purposes in a legitimate international human rights practice. This paper examines Allen Buchanan’s general concept of institutional legitimacy and aims to expand that concept by emphasizing its connection with several ideas developed in the book about the nature and function of a system of international human rights. When it incorporates those ideas, Buchanan’s ‘Metacoordination View’ can be seen to set a standard of (...) legitimacy not only for assessments of an international scheme of human rights institutions, but also for the basic institutional structures of domestic states. Furthermore, we can see how the nature and function of human rights in the international practice of human rights bears on legitimacy assessments of particular domestic institutions. (shrink)

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This paper is a short commentary on Michelle Dempsey's contribution to a symposium on the work of John Finnis which took place at Villanova Law School in the fall of 2011. It focuses on Finnis's claim that there is a presumptive obligation to obey the law and some worries that Dempsey raises against this claim. It is forthcoming, along with several other papers from the symposium, in the Villanova Law Review.

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A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and (...) punishment rules reflect lay intuitions of justice – "empirical desert" – as a means of enhancing the system's moral credibility. In a recent article, Christopher Slobogin and Lauren Brinkley-Rubinstein (SBR) report seven sets of studies that they argue undermine these claims of empirical desert and moral credibility and instead support SBR's proposed distributive principle of "individual prevention," a view that focuses on an offender's future dangerousness rather than on his perceived desert. -/- The idea that there is a relationship between the criminal law's reputation for justness and its crime-control effectiveness did not originate with Robinson and his co-authors. Rather, it has been a common theme among a wide range of punishment theory scholars for many decades. A particularly important conclusion of recent Robinson studies, however, is their confirmation that this relationship is a continuous one: even small nudges in moral credibility can produce corresponding changes in the community's deference to the criminal law. This is important because it shows that even piecemeal changes or changes at the margin – as in reforming even one unjust doctrine or procedure – can have real implications for crime-control. SBR's studies, rather than contradicting the crime-control power of empirical desert, in fact confirm it. Further, SBR's studies do not provide support for their proposed "individual prevention" distributive principle, contrary to what they claim. -/- While SBR try to associate their principle with the popular "limiting retributivism" adopted by the American Law Institute in its 2007 amendment of the Model Penal Code, in fact it is, in many respects, just the reverse of that principle. With limiting retributivism, the Model Code's new provision sets desert as dominant, never allowing punishment to conflict with it. SBR would have "punishment" essentially always set according to future dangerousness; it is to be constrained by desert only when the extent of the resulting injustices or failures of justice is so egregious as to significantly delegitimize the government and its law. This ignores the fact that even minor departures from justice may have an important cumulative effect on the system as a whole. What SBR propose – essentially substituting preventive detention for criminal justice – promotes the worst of the failed policies of the 1960s, where detention decisions were made at the back-end by "experts," and conflicts with the trend of the past several decades of encouraging more community involvement in criminal punishment, not less. (shrink)

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Corruption is a ubiquitous problem. As Gillian Brock notes early on, it exists to one degree or another in all societies, no matter their stage of development, and is regularly identified by the public as one of the top problems in the world (2–3). Despite its importance and frequency, it hasn’t been a central topic for philoso- phers working on normative moral and political theory. This isn’t to say that it has been ignored, but it has mostly been seen as (...) a specialty topic in areas such as business ethics, criminal law theory focusing on white-collar crime, or certain sub- areas in democratic theory. However, as Brock points out, corruption has particular importance for questions of global justice, given that “corruption plays an enor- mous role in sustaining global injustice and hinders efforts aimed at remedying global deprivations” (17). This comes not only from the sort of large-scale corrup- tion by government officials that starves developing countries of funds needed to provide necessary services but also from more day-to-day corruption in the provi- sion of water, leaving many people without access to clean drinking water; in con- struction, where people must make do with substandard and unsafe buildings; in the provision of education and medical services; and so on. Despite the massive size of the global justice literature, Brock’s book is one of the first—perhaps the first— to focus specifically on corruption in relation to global justice. It would be an im- portant work for this reason alone, but it also has many other virtues which should make it the touchstone of the topic going forward. (shrink)

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As the normative literature on immigration has matured over the last twenty plus years, it’s become increasingly hard to make interesting, plausible, and original claims. Most issues have been discussed, and most plausible positions staked out. Valeria Ottonelli and Tiziana Torresi’s book is, then, a pleasant surprise. In a brisk 173 pages they make important tech- nical contributions and argue for an insightful approach to thinking about some problems relating to migration. I will suggest worries about both their conclusions and (...) the approach, but anyone interested in normative migration theory should read the book. (shrink)

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For several years Michael Blake has been among the most important contributors to the philosophical literature on immigration. This book is therefore greatly anticipated, and develops a number of fruitful arguments. Although I will argue that the account is unsuccessful or incomplete at key points, it’s clearly an important work of relevance to those working on immigration, as well as to political philosophers more generally. In particular, Blake provides powerful arguments against the claim that “open borders” are required by liberal (...) principles of justice, develops his own “jurisdictional” account justifying immigration restrictions and the acceptable limits to these restrictions, and, in the most interesting and novel part of the book, discusses the role of virtues and values other than justice in relation to immigration policy, focusing specifically on the virtue of mercy. This last section of the book has potential for starting a rewarding line of research for political philosophers working on many topics, not just immigration. (shrink)

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This is a review of an anthology on international criminal law edited by Larry May and Zack Hoskins, published by Cambridge University Press.

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This is a review of Carl Knight's recent book, _Luck Egalitarianism_.

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Review of Evan Fox-Decent, _Sovereignty's Promise: The State as Fiduciary_.

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Legal philosophers have given relatively little attention to international law in comparison to other topics, and philosophers working on international or global justice have not taken international law as a primary focus, either. Allen Buchanan's recent work is arguably the most important exception to these trends. For over a decade he has devoted significant time and philosophical skill to questions central to international law, and has tied these concerns to related issues of global justice more generally. In what follows I (...) review Buchanan's new collection of essays, Human Rights, Legitimacy, and the Use of Force, paying special attention to Buchanan's argument that the philosophy of international law must be more empirically informed than it has been so far, and also to his claim that greater emphasis must be placed on the role of institutions. While these are important claims, I show that Buchanan often does not take the first far enough, and that appealing to institutions cannot do as much as Buchanan hopes or needs if his substantive conclusions are to be correct. (shrink)

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With the recent U.S. Supreme Court cases finding the Defense of Marriage Act unconstitutional and removing impediments to same-sex marriage in California,as well as a number of recent successes in special elections and with legislators inthe U.S. and other countries, we might wonder whether there is still need for a book debating same-sex marriage. Is not the tide of history inevitably movingtowards marriage equality? While that position seems tempting, it is too quick.

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This is a review of Gerald Gaus's recent book, _The Order of Public Reason_.

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This volume is based on papers presented at a conference on defeasibility in ethics, epistemology, law, and logic that took place at the Goethe University in Frankfurt in 2010. The subtitle (“Knowledge, Agency, Responsibility, and the Law”) better reflects the content than does the title of the original conference. None of the papers focuses directly or primarily on defeasible reasoning in logic, though a few touch on this indirectly. Nor are the papers evenly split among the topics. Six are primarily (...) about epistemology, four about responsibility, and one each focuses on agency and the law. (shrink)

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