April Responses to the Penn Law Review
posted by University of Pennsylvania Law Review
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This issue contains responses to Immigration Law’s Organizing Principles by Adam B. Cox.
In his Article, Professor Cox questions the central principle of immigration law that rules for selecting immigrants are fundamentally different from rules that regulate the lives of immigrants outside the selection process. Cox argues that the distinction is false because every rule of immigration necessarily effects both selection and regulation. Furthermore, even if rules could effectively be categorized, there is no moral or constitutional significance to the distinction. Rather, they are simply two alternative mechanisms that a state may use to achieve a particular end. Under this new understanding, Cox explores the implications to immigration law and institutional design.
Professor Schuck, in his Response, Immigration Law’s Organizing Principles: A Response, agrees that there is overlap in the incentives and effects of selection rules and regulation rules, but contends that Cox goes too far to claim “essential equivalence of the two.” Rather, he argues the real question is “whether, despite the overlap, enough difference between the two remains to justify maintaining some distinction in the legal rules that apply to them.” Unfortunately, despite Cox’s “valuable contribution” to the immigration law scholarship, by claiming equivalence of the two types of rules, Cox does not fully address, “much less answer” this question.
Professor Huntington, in her Response, A House Still Divided, is sympathetic to Cox’s desire to discard the traditional dichotomy between rules that govern the selection and regulation of immigrants. She identifies, however, two points of resistance to destabilizing the categories. Both because “there is some difference between selection and regulation,” and, more importantly, there is “political utility” in distinguishing between the two, Huntington argues that academics “need to be forthright about the power the distinction retains.”
April 3, 2009 at 11:32 am
Posted in: Law Rev (Penn), Law Rev Forum
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