Volume 81, Number 1

April 2006

Best Practices

David Zaring

In traditional administrative law, agencies pass rules and courts review them. But what if agencies stopped acting by rule and started leading by example? With best practices rulemaking—a theoretically voluntary way of coordinating administrative action both within and across agencies—leading by example is what agencies are increasingly doing. Although best practices rulemaking has been largely ignored by the legal literature, regulation through best practices has increased sevenfold in the past ten years in the federal government alone, touching every aspect of administrative law. This paper describes and evaluates best practices rulemaking, tracking its origins in business management, its adoption by the public sector, and analyzing how it works in that sector. It does so through a series of case studies, in particular a study of the use of best practices to regulate water pollution. An examination of best practices in practice shows that although they purport to be “best,” there is nothing particularly “best” about them. The rulemaking technique is a way of obtaining common practices, not ideal ones. Accordingly, best practices rulemaking is particularly useful for setting regulatory standards where the precise content of the standard is not particularly important. As best practices rulemaking (along with other forms of horizontal, informal agency action) continues to grow and grow apart from judicial supervision, Congress may want to ensure that this new technique of administrative law is adequately publicized and at least partially supervised through passage of a disclosure-oriented “Informal Administrative Procedure Act.”


Combining Reflexive Law and False Advertising Law to Standardize “Cruelty-Free” Labeling of Cosmetics

Delcianna J. Winders

“Cruelty-free” labeling claims are presently unregulated, resulting in market failure. Consumers make purchasing decisions with incomplete and misleading information and are therefore unable to encourage manufacturers to follow consumer preferences and alter their animal testing practices. Building on scholarship in reflexive law, this Note outlines a strategy for remedying the proliferation of misleading “cruelty-free” claims through standardization. Winders argues that standardization can most effectively and efficiently be achieved through a voluntary, third-party certification program that sets a labeling standard and then monitors labeling claims, buttressed by traditional false advertising law.

Sixty Years in Limbo: The Duty of Host States to Integrate Palestinian Refugees Under Customary International Law

Laura Anne Reeds

This Note argues that customary international law (CIL) requires states of first refuge to integrate long-term refugees living within their borders. First, it discusses the methods that courts and tribunals use to identify principles of CIL and explains the requirements of state practice and opinio juris. Next, it applies these methods to the principle of long-term refugee integration, demonstrating that the community of nations generally integrates refugees within a single generation and widely acknowledges a legal obligation to do so. Then, after concluding that the principle of longterm refugee integration is binding under CIL, this Note evaluates the extent to which host states for Palestinian refugees have fulfilled their duty to integrate refugees residing within their borders.

A New Direction? Forest Service Decisionmaking and Management of National Forest Roadless Areas

William J. Wailand

Making natural resource management decisions in roadless areas of our national forests has long been a contentious issue. The Forest Service, under President Bush, recently passed a rule allowing states to petition the administration regarding how they wish these roadless areas to be managed. The rule envisions that states will collaborate with all concerned parties in formulating these petitions, but sets no standards ensuring such a process. Given the difficulty of achieving collaboration, the lack of standards makes this purported goal less likely and suggests that the rule may have been an attempt to open roadless areas to development. Nonetheless, this Note urges states and stakeholders to undertake collaboration and argues that the administration should use its oversight to encourage this process rather than unwanted development. In this way, the new rule has the potential to facilitate broadly acceptable management policies and provide valuable experience in the field of collaborative environmental management.

Toward an Improved True Threat Doctrine for Student Speakers

Andrew P. Stanner

In the wake of several high profile school shootings at the end of the 1990s, school administrators struggled with the question of how to predict and prevent future attacks. They were not alone. Case law reveals that judges, too, have been moved by these events, and they are trying to do their part to curb school violence, often by punishing threats of violence made by student speakers. The Supreme Court has held that “true threats” are not protected by the First Amendment based on three justifications: preventing fear, preventing the disruption that follows from that fear, and diminishing the likelihood that the threatened violence will occur. In this Note, the author challenges the application of the true threat doctrine to student threats on three grounds. First, the doctrine is excessively vague and does not provide judges with sufficient standards, which leads to disparate enforcement across cases. Second, recent evidence suggests that punishing threats as a proxy for punishing or preventing future violence—which is explicitly endorsed by the Court’s true threat jurisprudence—is ineffective in the context of student speech. Third, the author identifies a serious policy concern implicated by any punitive response to student threats. To address these shortcomings, Stanner concludes with a series of recommendations for different courts that are designed to improve both the formulation and the implementation of the true threat doctrine.

Symposium Articles

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.

Home and Away: The Construction of Citizenship in an Emigration Context

Kim Barry

Scholarly discourse on immigration is abundant, but little attention has been paid to emigration as such, and particularly to citizenship within the emigration context. This Article examines the ways in which citizenship has been reconfigured by emigrants and emigration states, and begins to construct a broadened conception of citizenship based on these actual practices. Citizenship as experienced by emigrants, or “external citizenship,” has two dimensions: formal legal status and the lived experience of participation in national life. The Article highlights the strong economic incentives for emigration states to strengthen ties with their absent citizens. It also emphasizes emigrants’ active stance in shaping their new role in the national life of their home countries. As emigrant states and emigrants negotiate the terms of their relationship, a new set of citizenship constructs has begun to emerge. States have newly styled emigrants as heroic citizens, as they seek to encourage emigrants to direct financial resources homeward, in the form of remittances, direct contributions styled as taxes, and investment. In approving dual nationality, states have allowed emigrants to retain legal membership at home, even as they acquire citizenship abroad. Emigrants themselves have begun to assert political claims in their home states, and in a number of states, emigrants have acquired the right to vote in national elections while abroad. Emigrants also continue to influence politics in their home states in other ways, including running for office, making contributions to candidates, and traveling home to vote there. The Article concludes by offering some initial thoughts on the ways in which emigrant citizenship might evolve in the future.


For Kim, and Her World

Barry Friedman

On November 20, 2004, New York University lost a cherished member of its extended family, the legal academy lost a promising young scholar, and the world lost an exemplary citizen. This Symposium represents the effort of many who struggled with this mutual loss. It is to Kim, to her beloved family and many friends, to her shortchanged colleagues, and to the fellow citizens of Kim’s world, that this collection of essays is dedicated.