Stanford Journal of Civil Rights & Civil Liberties

Transcription

1 Stanford Journal of Civil Rights & Civil Liberties Volume XIII February 2017 Special Issue CONTENTS ARTICLES FOREWORD: FORWARD!... 1 Diane T. Chin RESISTANCE AND IMMIGRANTS' RIGHTS... 5 Jayashri Srikantiah AN ENVIRONMENTAL CALL TO ACTION Deborah A. Sivas ADDRESSING CRIMINAL JUSTICE CHALLENGES DURING A TRUMP ADMINISTRATION Ralph Richard Banks REPRODUCTIVE JUSTICE Deborah L. Rhode HUMAN RIGHTS, NATIONAL SECURITY, AND THE ROLE OF LAWYERS IN THE RESISTANCE.. 37 Shirin Sinnar

2 About the Stanford Journal of Civil Rights & Civil Liberties 2016 by the Board of Trustees of the Leland Stanford Junior University Subscriptions: The Stanford Journal of Civil Rights & Civil Liberties is published twice a year by students of the Stanford Law School, Crown Quadrangle, 559 Nathan Abbott Way, Stanford, California Volume prices are $42 domestic, and $52 international. All subscriptions are for the volume year (from 9/1/15 to 8/31/16) and will be renewed automatically unless the subscriber provides timely notice of cancellation. Please contact the Business Manager at (650) for subscription information. Postage: Postage paid at Palo Alto, California 94303, and additional mailing offices. Postmaster: Mail your change of address or other subscription information to Business Manager, SJCR-CL, Crown Quadrangle, 559 Nathan Abbott Way, Stanford, California Include name, new address with zip code, and old address or mailing label. Please mail changes at least six to eight weeks before the publication date to ensure prompt delivery. The U.S. Postal Service will not forward copies unless additional postage is paid by the subscriber. Single Issues: Issues in the current volume are available from SJCR-CL for $24 each plus shipping and handling fees. For back issues, volumes, and sets, inquire of William S. Hein & Co. Inc., 1285 Main Street, Buffalo, New York Orders may also be placed by calling Hein at (800) , via fax at (716) , or by at order@wshein.com. Back issues can be found in electronic format on HeinOnline ( Manuscripts: SJCR-CL accepts online submission of unsolicited manuscripts. Please see for further information. Although not preferred, submissions by mail are also accepted. Please include an address with all submissions. Citations: The text and citations of SJCR-CL generally conform to The Bluebook: A Uniform System of Citation (19th ed. 2010), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal. Internet Address: The SJCR-CL homepage is located at

3 Stanford Journal of Civil Rights & Civil Liberties Volume XIII February 2017 Special Issue EDITORIAL BOARD Editors-in-Chief FAARIS (FARES) AKREMI B.I. MIDDLETON Executive Editor STEPHANIE BIRNDORF Managing Editors MICHAEL HOOSIER KELSEY TOWNSEND STACY YOUNG Development Editors GEMMA DONOFRIO LAUREN GOREDETSKY Submissions Editors JOHN BONACORSI YVETTE BORJA MORGAN LEWIS NATHANIEL RUBIN Technical Managing Editor TIFFANY LIEU Senior Editors MELISSA CORNELL JARED CRUM JORDAN OROSZ BOLOROO UUGANBAYAR BETH BRAITERMAN NICOLE BRONNIMANN PARKER CRAGG BEN DEGOLIA RACHEL GREEN VANESSA GUERRERO Member Editors DAVID HUANG MEGHAN KOUSHIK MARK KRASS HANNAH MATSUNAGA EMILY PEHRSSON BRITANY RILEY EMMA SCHINDLER MICHAEL SCHNEIDER DAPHNA SPIVACK DAVID STEINBACH PETER VOGEL NICOLE WELINDT REBECCA WONG

4 The Stanford University School of Law OFFICERS OF ADMINISTRATION Marc Tessier-Lavigne, B.Sc., B.A., Ph.D., President of the University John W. Etchemendy, B.A., M.A., Ph.D., Provost of the University M. Elizabeth Magill, B.A., J.D., Dean and Richard E. Lang Professor of Law Mark G. Kelman, B.A., J.D., James C. Gaither Professor of Law, Vice Dean, and Professor by courtesy of Political Economy Juliet M. Brodie, A.B., J.D., Mills Professor of Law, Director of the Mills Legal Clinic and of the Stanford Community Law Clinic, and Associate Dean for Clinical Education Robert M. Daines, B.S., B.A., J.D., Pritzker Professor of Law and Business, Associate Dean for Global Programs, and Professor by courtesy of Finance Nora Freeman Engstrom, A.B., J.D., Professor of Law, Deane F. Johnson Faculty Scholar, and Associate Dean for Curriculum Deborah R. Hensler, B.A., Ph.D., Judge John W. Ford Professor of Dispute Resolution and Associate Dean for Graduate Studies F. Daniel Siciliano, B.A., J.D., Professor of the Practice of Law and Associate Dean for Executive Education and Special Programs George Triantis, LL.B., LL.M., J.S.D., Charles J. Meyers Professor of Law and Business, Associate Dean for Strategic Planning, and Associate Dean for Research for Stanford University Frank F. Brucato, B.A., Senior Associate Dean for Administration and Chief Financial Officer Diane T. Chin, B.A., J.D., Lecturer in Law and Associate Dean for Public Service and Public Interest Law Faye Deal, A.B., Associate Dean for Admissions and Financial Aid Julia Erwin-Weiner, B.A., M.A., Senior Associate Dean for External Relations Sabrina Johnson, B.A., Associate Dean for Communications and Public Relations Susan C. Robinson, B.A., J.D., Lecturer in Law and Associate Dean for Career Services Jory Steele, B.A., M.I.A., J.D., Associate Dean for Student Affairs FACULTY EMERITI Janet Cooper Alexander, B.A., M.A., J.D., Frederick I. Richman Professor of Law, Emerita Barbara Babcock, B.A., LL.B., LL.D. (hon.), Judge John Crown Professor of Law, Emerita Paul Brest, B.A., LL.B., Professor of Law, Emeritus and Former Dean Gerhard Casper, Referendar, LL.M., Dr. iur. utr., LL.D. (hon.), President Emeritus, Professor of Law Emeritus, Senior Fellow, Institute for International Studies, and Peter and Helen Bing Professor in Undergraduate Education, Emeritus Joshua Cohen, B.A., M.A., Ph.D., Marta Sutton Weeks Professor of Ethics in Society and Professor of Philosophy and of Law, Emeritus Richard Craswell, B.A., J.D., Professor of Law, Emeritus Lance E. Dickson, B.A., LL.B., B.Com., M.L.S., Professor of Law, Emeritus, and Former Director of the Robert Crown Law Library Marc A. Franklin, A.B., LL.B., Frederick I. Richman Professor of Law, Emeritus Ronald J. Gilson, A.B., J.D., Charles J. Meyers Professor of Law and Business, Emeritus William B. Gould IV, B.A., LL.B., LL.D. (hon.), Charles A. Beardsley Professor of Law, Emeritus Thomas C. Grey, B.A., LL.B., LL.D. (hon.), Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law, Emeritus Thomas C. Heller, A.B., LL.B., Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies, Emeritus Miguel A. Méndez, A.A., A.B., J.D., Adelbert H. Sweet Professor of Law, Emeritus Michael S. Wald, B.A., M.A., LL.B., Jackson Eli Reynolds Professor of Law, Emeritus PROFESSORS Gregory Ablavsky, B.A., J.D., Ph.D., Assistant Professor of Law Michelle Wilde Anderson, B.A., M.Sc., J.D., Professor of Law and Robert E. Paradise Faculty Fellow for Excellence in Teaching and Research Joseph M. Bankman, B.A., J.D., Ralph M. Parsons Professor of Law and Business Ralph Richard Banks, B.A., M.A., J.D., Jackson Eli Reynolds Professor of Law and Professor by courtesy of Education Rabia Belt, A.B., J.D., M.A., Ph.D., Assistant Professor of Law Juliet M. Brodie, A.B., J.D., Mills Professor of Law, Director of the Mills Legal Clinic and of the Stanford Community Law Clinic, and Associate Dean for Clinical Education James Cavallaro, A.B., J.D., Professor of Law and Director, Stanford International Human Rights and Conflict Resolution Clinic G. Marcus Cole, B.S., J.D., William F. Baxter-Visa International Professor of Law Robert M. Daines, B.S., B.A., J.D., Pritzker Professor of Law and Business and Professor by courtesy of Finance Michele Landis Dauber, B.S.W., J.D., Ph.D., Frederick I. Richmond Professor of Law and Professor by courtesy of Sociology John J. Donohue III, B.A., J.D., M.A., M.Phil., Ph.D., C. Wendell and Edith M. Carlsmith Professor of Law

5 David Freeman Engstrom, A.B., M.Sc., J.D., Ph.D., Professor of Law and Bernard D. Bergreen Faculty Scholar Nora Freeman Engstrom, A.B., J.D., Professor of Law, Deane F. Johnson Faculty Scholar, and Associate Dean for Curriculum George Fisher, A.B., J.D., Judge John Crown Professor of Law and Faculty Co-Director, Criminal Prosecution Clinic Jeffrey L. Fisher, A.B., J.D., Professor of Law and Co-Director, Supreme Court Litigation Clinic Richard Thompson Ford, B.A., J.D., George E. Osborne Professor of Law Barbara H. Fried, B.A., M.A., J.D., William W. and Gertrude H. Saunders Professor of Law Lawrence M. Friedman, A.B., J.D., LL.M., LL.D. (hon.), Marion Rice Kirkwood Professor of Law, Professor by courtesy of History, and Professor by courtesy of Political Science Jacob Goldin, B.A., M.A., Ph.D., J.D., Assistant Professor of Law Paul Goldstein, B.A., LL.B., Stella W. and Ira S. Lillick Professor of Law Robert W. Gordon, A.B., M.A., J.D., Professor of Law Henry T. Greely, A.B., J.D., Deane F. and Kate Edelman Johnson Professor of Law and Professor by courtesy of Genetics Joseph A. Grundfest, B.A., M.Sc., J.D., W.A. Franke Professor of Law and Business Lucas Guttentag, B.A., J.D., Professor of the Practice of Law (on leave autumn) Deborah R. Hensler, A.B., Ph.D., Judge John W. Ford Professor of Dispute Resolution and Associate Dean for Graduate Studies Daniel E. Ho, B.A., A.M., Ph.D., J.D., William Benjamin Scott and Luna M. Scott Professor of Law Colleen Honigsberg, B.S., J.D., Ph.D., Assistant Professor of Law Erik G. Jensen, B.A., J.D., L.L.M., Professor of the Practice of Law Pamela S. Karlan, B.A., M.A., J.D., Kenneth and Harle Montgomery Professor of Public Interest Law and Co- Director, Supreme Court Litigation Clinic Mark G. Kelman, B.A., J.D., James C. Gaither Professor of Law, Vice Dean, and Professor by courtesy of Political Economy Amalia D. Kessler, B.A., M.A., J.D., Ph.D., Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies and Professor by courtesy of History Daniel P. Kessler, A.B., J.D., Ph.D., Professor of Law, Senior Fellow, Hoover Institution, David S. and Ann M. Barlow Professor in Management, and Professor by courtesy of Health Research and Policy Michael Klausner, B.A., M.A., J.D., Nancy and Charles Munger Professor of Business and Professor of Law William S. Koski, B.B.A., J.D., Ph.D., Eric and Nancy Wright Professor of Clinical Education, Director, Youth and Education Law Project, and Professor by courtesy of Education Mark A. Lemley, A.B., J.D., William H. Neukom Professor of Law Robert J. MacCoun, B.A, M.A., Ph.D., James and Patricia Kowal Professor of Law and Senior Fellow, Freeman Spogli Institute for International Studies M. Elizabeth Magill, B.A., J.D., Dean and Richard E. Lang Professor of Law Phillip R. Malone, B.A., J.D., Professor of Law and Director, Juelsgaard Intellectual Property and Innovation Clinic Lawrence C. Marshall, B.A., J.D., Professor of Law Jenny S. Martinez, B.A., J.D., Professor of Law and, Warren Christopher Professor in the Practice of International Law and Diplomacy Michael W. McConnell, B.A., J.D., LL.D. (hon.), Richard and Frances Mallery Professor of Law A. Douglas Melamed, B.A., J.D., Professor of the Practice of Law Michelle M. Mello, B.A., M.Phil., Ph.D., J.D., Professor of Law and Professor of Health Research and Policy (School of Medicine) Bernadette Meyler, A.B., M.A., J.D., Ph.D., Carl and Sheila Spaeth Professor of Law David W. Mills, B.A., J.D., Professor of the Practice of Law and Senior Lecturer in Law Jay A. Mitchell, A.B., J.D., Professor of Law and Director, Organizations and Transactions Clinic Alison D. Morantz, A.B., M.Sc., J.D., Ph.D., James and Nancy Kelso Professor of Law (on leave) Lisa Larrimore Ouellette, B.A., Ph.D., J.D., Assistant Professor of Law Nathaniel Persily, B.A., M.A., J.D., Ph.D., James B. McClatchy Professor of Law Joan Petersilia, B.A., M.A., Ph.D., Adelbert H. Sweet Professor of Law A. Mitchell Polinsky, A.B., Ph.D., M.S.L., Josephine Scott Crocker Professor of Law and Economics and Professor by courtesy of Economics Robert L. Rabin, B.S., J.D., Ph.D., A. Calder Mackay Professor of Law Dan Reicher, B.A., J.D., Professor of the Practice of Law Deborah L. Rhode, B.A., J.D., Ernest W. McFarland Professor of Law Jane S. Schacter, A.B., J.D., William Nelson Cromwell Professor of Law F. Daniel Siciliano, B.A., J.D., Professor of the Practice of Law and Associate Dean for Executive Education and Special Programs Shirin A. Sinnar, A.B., M.A., M.Phil., J.D., Associate Professor of Law Deborah A. Sivas, B.A., M.S., J.D., Luke W. Cole Professor of Environmental Law and Director, Environmental Law Clinic David Alan Sklansky, B.A., J.D., Stanley Morrison Professor of Law James A. Sonne, B.A. J.D., Associate Professor of Law and Director, Religious Liberty Clinic Norman W. Spaulding, B.A., J.D., Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law James Frank Strnad II, A.B., J.D., Ph.D., Charles A. Beardsley Professor of Law David M. Studdert, B.A., LL.B, M.P.H., Sc.D., Professor of Law and Professor of Medicine (PCOR/CHP) Alan O. Sykes, B.A., J.D., Ph.D., Professor of Law Barton H. Thompson, Jr., B.A., J.D., M.B.A., Robert E. Paradise Professor of Natural Resources Law

6 George Triantis, LL.B., LL.M., J.S.D., Charles J. Meyers Professor of Law and Business, Associate Dean for Strategic Planning, and Associate Dean for Research for Stanford University Ronald C. Tyler, B.S., J.D., Associate Professor of Law and Director, Criminal Defense Clinic Barbara van Schewick, B.Sc., M.Sc., Ph.D., Professor of Law, Helen L. Crocker Faculty Scholar, and Associate Professor by courtesy of Electrical Engineering Michael Wara, B.A., Ph.D., J.D., Associate Professor of Law and Justin M. Roach, Jr. Faculty Scholar Robert Weisberg, B.A., M.A., Ph.D., J.D., Edwin E. Huddleson, Jr. Professor of Law SENIOR LECTURERS Janet Martinez, B.S., J.D., M.P.A., Ph.D., Senior Lecturer in Law Allen S. Weiner, A.B., J.D., Senior Lecturer in Law Beth Williams, B.A., M.A., J.D., M.L.I.S., Senior Lecturer in Law and Director, Robert Crown Law Library VISITING PROFESSORS & AFFILIATED FACULTY Michael Asimow, B.S., J.D., Visiting Professor of Law Binyamin Blum, B.A., LL.B., J.S.M., M.A., J.S.D., Visiting Assistant Professor of Law Dan Boneh, Affiliated Faculty Khiara Bridges, Visiting Professor of Law Svetlana Bryzgaloval, B.S., M.S., Ph.D., Affiliated Faculty M. Kate Bundorf, M.B.A., M.P.H., Ph.D., Affiliated Faculty Mariano-Florentino Cuéllar, A.B., A.M., J.D., Ph.D, Visiting Professor of Law Jennifer Eberhardt, B.A., A.M., Ph.D., Professor by courtesy of Law Drew Endy, Affiliated Faculty Siegfried Fina, Mag. iur., Dr. iur., Visiting Associate Professor of Law James Forman, Edwin A. Heafey, Jr. Visiting Professor of Law Michael Genesereth, Associate Professor by courtesy of Law Lawrence Goulder, Affiliated Faculty David Grewal, Herman Phleger Visiting Professor of Law Laurie Hoderick, B.A., Ph,D., Visiting Professor of Law Prasad Krishnamurthy, Visiting Assistant Professor of Law David F. Larcker, B.S., M.S., Ph.D., Professor by courtesy of Law Kenneth Mack, Visiting Professor of Law Curtis Milhaupt, Herman Phleger Visiting Professor of Law Jonathan Mitchell, B.A., J.D., Visiting Professor of Law Rogelio Pérez-Perdomo, Ph.D., Visiting Professor of Law Ariel Porat, Visiting Professor of Law Jack Rakove, A.B., Ph.D., Professor by courtesy of Law Camille Gear Rich, Visiting Professor of Law Francis Victor Stanton, B.A., Affiliated Faculty Adfina Sterling, Affiliated Faculty Beth Van Schaack, B.A., J.D., Leah Kaplan Visiting Professor in Human Rights Keith Weinstein, Assistant Professor by courtesy of Law LECTURERS AND TEACHING FELLOWS Adam Abelkop Abbye Atkinson Jason Bade Marilyn Bautista Jeanine Becker Emily Berry Monika Bickert Gary Born Jeffrey Brown Viola Canales Ronald Chen Diane Chin Tanya de la Fuente Michael Dickstein Lisa Douglass Juniper Downs Sarah Duranske Allison Elgart Bonnie Eskenazi Randee Fenner Bertram Fields Jay Finkelstein David Forst Laurence Franklin Steven R. Franklin Michelle Galloway Mei Gechlik Albert Gidari Benjamin Ginsberg David Goldberg Hannah Gordon Victoria Grand Jennifer Granick Jonathan Greenberg Thomas B. Griffith Tim Hallahan Adam Halpern Edward Hartman Del Harvey Luciana Herman William Hinman Todd Hinnen Zeba Huq David Johnson Danielle Jones Mugambi Jouet Megan Karsh Daphne Keller Julie Matlof Kennedy Sallie Kim Larry Kramer Robin Lee Susan Liautaud Stuart Lipton Goodwin Liu Suzanne A. Luban Grande Lum Diego Gil McCawley Beth McLellan Jason Meek Jeanne Merino Marion Miller Shawn Miller Nader Mousavi Carly Munson Linda Netsch Jessica Notini Jef Pearlman B. Howard Pearson Lisa Pearson Brenna Powell Stephan Ray

7 Lucy Ricca Susan Robinson John Rodkin David B. Rogers Michael Romano Betty Rowe Richard P. Salgado Ticien Sassoubre Diala Shamas Steven Shapiro Stephanie Smith Michelle Sonu Shanin Specter Sergio Stone Kimberly Summe Alicia Thesing Ashley Walter Justin Weinstein-Tull Lisa Weissman-Ward Spencer Williams Andrew Winden Michael Winn Steve Wise Katherine Wright Joseph Yang James Yoon PROFESSIONAL LIBRARY STAFF Annie Chen, B.A., M.L.S. Leizel Ching, B.A., M.Ed., J.D. Sean Kaneshiro, B.A., J.D., M.L.I.S. Marion Miller, B.A., J.D., M.L.I.S. Camelia Naranch, B.A., M.L.I.S. Sarah Reis, B.A., M.L.I.S., J.D. Sergio Stone, B.A., J.D., M.L.I.S. Ryan Tamares, B.M, M.M., M,L.I.S. Beth Williams, B.A., M.A., J.D., M.L.I.S. George D. Wilson, B.A., J.D., M.L.I.S. Naheed Zaheer, B.S., M.S.C., M.L.I.

8 FOREWORD: FORWARD! Diane T. Chin I am honored to have been asked to write the foreword to this Special Edition the work of some of my colleagues, friends, and mentors on the Stanford Law School faculty. The focus of this edition is the role that law students and lawyers can play in protecting rights, liberties, and a healthy environment under a new president whose statements as a candidate and early actions indicate a significant retrenchment from gains made in these areas over the last several decades. Public interest and public service lawyers hail from a variety of political perspectives and champion a breadth of causes. 1 What is clear, however, is that lawyers have played a critical role in representing under-served communities and causes, 2 and that that function remains as important in 2017 as it ever has. Every year, I am fortunate to address the entering class at the law school during an orientation for new students. Every year, I feel compelled to remind enter law school, with a set of values and morals, a sense of self and compassion, with a broad view informed by more than legal precedent, and an understanding of right from wrong. As we evaluate our next steps as lawyers and law students, it might be tempting to focus on the slight comfort provided by familiar legal structures, organizations, and precedents, but as the authors of these inspiring essays remind us, the battles ahead will require much more, and simultaneously much less, of each of us. What many of our authors highlight is the need for learning about and deploying numerous strategies, at once. This has been a necessary response to proposed policies from various Associate Dean for Public Service and Public Interest Law and Lecturer in Law at Stanford Law School, where she oversees the John and Terry Levin Center for Public Service and Public Interest Law. 1. Ann Southworth, Conservative Lawyers and the Contest Over the Meaning of Public Interest Law, 52 UCLA L. REV (2005). 2. AUSTIN SARAT & STUART A. SCHEINGOLD, SOMETHING TO BELIEVE IN: POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING (2004); Deborah L. Rhode, Public Interest Law: The Movement at Midlife, 60 STAN. L. REV (2008). 1

9 2 STANFORD J. OF CIVIL RIGHTS & CIVIL LIBERTIES [XIII:SE1 administrations those viewed as friendly to liberals or progressives included. As we each evaluate the roles we can and want to play, I will remind us that our whole selves, with our varying skills, concerns, and commitments, should be brought to identifying our answers. CURRENT ISSUES AND CONCERNS AT THIS HISTORICAL MOMENT In the essays that follow, the authors highlight current pressing issues related to this historical moment, their concerns about what may occur in key policy and legal areas, and their perspectives on how law students and lawyers can bring to bear their skills to protect hard fought gains, to help sustain organizations that are pivotal to the fights ahead, and to ensure that there is a pipeline of advocates who will be able to support communities and causes at risk under the Trump Administration. Several of our authors remind us to not be ahistorical. Professors Sinnar, Sivas, and Srikantiah in particular point to past situations where lawyers and advocates have successfully fought against the kinds of rights violations and reduced government oversight we are watching this new administration roll out. They also remind us that approaches undertaken, even those that were not successful, have lessons to teach us, especially in relation to broader social mobilization. We must also remember that, while there is currently a feeling of urgency and concern that we face unprecedented challenges, in the pendulum swing of United States history, public interest lawyers have always been able to meet the trials and tribulations retrenchment has created. Many of the proposals offered by the new Administration are continuations, albeit some more extreme, of policies and proposals undertaken by the Obama, Bush, Clinton, and previous administrations. O arguments that seek to create narrow polemics within which legal, policy, and political debates occur. Professors Rhode and Sivas point out the ways that in the reproductive justice and environmental realms, there is a skewed perspective on what is at risk. Professors Sinnar and Srikantiah point out similarly the false dichotomies that have been presented in the immigration and human rights regimes. As they each describe, the options facing our society do not require us to make decisions between jobs or the environment or a humane immigration policy, between a sense of national safety or security and human rights, between and also a willingness to engage in outreach and communication within multiple platforms. We must identify nuanced yet pithy means of dissecting false equivalents. Developing a strategy that can inform debate as well as move hearts and minds, must all be in service of protecting gains made and advancing reforms that serve communities. It must be an on-the-ground effort, utilizing social media, earned media, and bought media. And, this effort must include direct outreach and engagement with those whom public interest lawyers seek to serve.

10 2017] FOREWARD: A CALL TO ACTION 3 Finally, most of our authors include in their recommendations to deploy multiple strategies an acknowledgement that mobilization and working with community organizers and community-based organizations must be at the core of the work ahead. It will always be tempting for lawyers and law students to 3 This temptation must be resisted in order to achieve the kinds of broader social movements and change the authors in this Edition envision. LAWYERING FROM THE MARGINS AND WITHIN THE MAELSTROM This is not to say that there is no role for using the traditional skills of the lawyer in the battles ahead. As these essays describe, there will always be a need for smart lawyers who can use established legal and administrative processes, the courts, and litigation. Indeed, the scenes of makeshift law offices at airports across the country, 4 staffed by volunteers who wanted to help refugees and their families in response to that we can also be flexible enough to respond on an emergency basis to a quickly changing landscape. Faced with already strained resources, the public interest legal field will need lawyers and law students who can represent individuals and classes in all manner to potentially unconstitutional actions, provide counsel and representation to nonprofits (community-based, journalism-focused, legal, and advocacy) whose activities are subjected to a more targeted scrutiny and to whistleblowers within agencies, and engage in research and analysis of local or state opportunities for rights vindication should federal paths be foreclosed, among other kinds of efforts. We will also need to be able to work with others across divides of narrow substantive interests. As Professor Banks notes, many of the issues that we will need to address are intertwined and mutually reinforcing. We will need policy experts poised with analysis about elected officials on both sides of the aisle who can be moved and messages that will move them. Lawyers must be able and willing to take on less traditionally litigation focused 5 in order to effectively advocate for change. But, as many of our authors and many others point out, 6 lawyering from the 3. Sandra R. Levitsky, To Lead with Law: Reassessing the Influence of Legal Advocacy Organizations in Social Movements, in SARAT & SCHEINGOLD, supra note 2, at Jonah Engel Bromwich, N.Y. TIMES (Jan. 29, 2017), 5. Chai Rachel Feldblum, The Art of Legislative Lawyering and the Six Circles Theory of Advocacy, 34 MCGEORGE L. REV. 785 (2002). 6. See, e.g., id.; GERALD P. LOPEZ, REBELLIOUS LAWYERING (1992); JOEL E. HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM: A THEORY OF LAW REFORM AND SOCIAL CHANGE (1978); William P. Quigley, Reflections of Community Organizers: Lawyering for Empowerment of Community Organizations, 21 OHIO N.U. L. REV. 455 (1995). See also

11 4 STANFORD J. OF CIVIL RIGHTS & CIVIL LIBERTIES [XIII:SE1 margins to address broad systems of oppression will be inadequate if we are not also engaged in supporting communities living in the maelstrom. These skills are not traditionally taught or learned in law school: collaboration with communitybased groups and leaders, learning about organizing models and how to support them, understanding why not to advance a brilliant legal theory, remembering pre-law communication skills that allow better understanding and engagement. Not all of us will be good at lawyering at this level. Not all of us have or want to develop the skills of the community lawyer. To the extent that you feel badly about this, set that aside. Do what you can where you can as frequently as you can, with the skills and preferences you have full-time or part-time, as a pro bono legal volunteer, as a donor or board member, as a witness to immoral acts who will speak out, as someone with privilege who can access power. Regardless of our roles, we must take the time to gain a better understanding of how systems of oppression operate, to see the context in which our individual case or action, op-ed or lobbying effort, is taking place. LAWYERING AS OURSELVES One of our authors looks at how systems of exclusion and discrimination intersect to help us identify where, when, and how we may want to enter the fray upstream to address systemic issues or downstream to tackle the results of bad policies. However, as we are reminded by our authors, we must make sure that we are up to the fight and engaging in self care in order to be effective. I caution especially those of us who identify with and are part of the communities that most fear targeting and reprisals in the years ahead to consider how we can best remember that if you are the lawyer, you cannot also be the client. You cannot advise your clients based upon your sense of what is needed alone. 7 The path to hope and faith is built by action. It is paved and made walkable, useful, by meaningful works. While we each must identify what we can manage (without burnout or taking on commitments that we cannot meet), we each must also define work that will have an impact, that we will feel sustained by because it fulfills our need to help. The hearts and minds battle is one that must be fought within ourselves, too. To the extent that we can bring our whole selves to this endeavor, not only the part that thinks like a lawyer, we will be more likely to be able to build and pave the paths we need. Charles Elsesser, Community Lawyering: The Role of Lawyers in the Social Justice Movement, 14 LOY. J. PUB. INT. L. 375 (2013); Alexi Nunn Freeman & Jim Freeman, It s About Power, Not Policy: Movement Lawyering for Large-Scale Social Change, 23 CLINICAL L. REV. 147 (2016). 7. Nancy D. Polikoff, Am I My Client?: The Role Confusion of A Lawyer Activist, 31 HARV. C.R.-C.L. L. REV. 443 (1996).

12 RESISTANCE AND IMMIGRANTS RIGHTS Jayashri Srikantiah INTRODUCTION We do not know yet the all of gration, beyond his broadly worded executive orders. But his rhetoric has been alarming. During his campaign for the presidency, Trump characterized Mexican immigrants as rapists and drug dealers and Muslim immigrants as terrorists and threats to women. 1 Now by executive order, he has vowed to build a wall between the U.S. and Mexico and has threatened mass deportations for those in this country without papers. 2 a victory for his anti-immigrant, racist, and xenophobic rhetoric. 3 How can we prepare and resist now and in the years to come? I do not have the answer. But as I have worried about the effects Founding director of the Immigrants Rights Clinic and Professor of Law at Stanford Law School. I gratefully acknowledge the helpful advice of Shirin Sinnar, Diane Chin, and Debbie Sivas. 1. See Ben Jacobs, Trump Says Mexico Rapist Comments Were Planned in Deposition Video, THE GUARDIAN (Sept. 30, 2016, 17:06 EDT), Katie Reilly, Here Are All the Times Donald Trump Insulted Mexico, TIME (Aug. 31, 2016), Ian Schwartz, Trump: Mexico Not Sending Us Their Best; Criminals, Drug Dealers and Rapists Are Crossing Border, REALCLEARPOLITICS (June 16, 2016), 2. See Exec. Order No. 13,769, 82 Fed. Reg (Jan 27, 2017) (mandating refugee ban and other restrictions); Exec. Order No. 13,767, 82 Fed. Reg (Jan. 25, 2017) (relating to the proposed border wall); Harper Neidig, Trump Stands By Plans to Build Wall, THE HILL (Dec. 1, 2016, 9:15 PM EST), trump-says-he-still-plans-on-building-a-wall; Katie Reilly, Donald Trump Plans to Deport Up to 3 Million Immigrants, TIME (Nov. 13, 2016), 3. See Clara Jeffrey, Van Jones: Hope for the Best, Expect and Prepare for the Worst, MOTHER JONES (Nov. 14, 2016, 7:00 AM), 5

13 6 STANFORD J. OF CIVIL RIGHTS & CIVIL LIBERTIES [XIII:SE5 immigration policies on immigrant families and communities, I have been returning to a few principles. Nothing in these principles is new. I draw from the wisdom of leaders like Bill Quigley 4 and the example of the many activists who have forged a path forward in times of injustice. 5 I have also learned from conversations with colleagues, friends, and students as we plan for immigrants rights advocacy in the Trump years. I. COLLABORATE AND ORGANIZE Much has been written about law and organizing. The main message is that lawyers must work alongside and in collaboration with grassroots organizing efforts to be effective. 7 and ideas from engaging in the larger movement. We benefit from deepening our partnerships with immigrants, organizers, and others to advocate against restrictive proposals and for meaningful positive social change. For many lawyers, working alongside those most affected by the govern- -immigrant policies requires putting aside ego. Law school is full of 6 4. See William P. Quigley, Letter to a Law Student Interested in Social Justice, 1 DEPAUL J. FOR SOC. JUST. 7 (2007); William P. Quigley, Reflections of Community Organizers: Lawyering for Empowerment of Community Organizations, 21 OHIO N.U. L. REV. 455 (1995); William P. Quigley, Revolutionary Lawyering: Addressing the Root Causes of Poverty and Wealth, 20 WASH. U. J.L. & POL Y 101 (2006). 5. As Ascanio Piomelli succinctly advises: To understand where we stand, how we got here, the roads others have walked, and the paths we might pursue, it behooves us to be intimately familiar with the extensive literature of the past thirty years about lawyering and social change. We should know well the work of Arthur Kinoy and Gary Bellow, of Jerry López, Lucie White, Luke Cole, and Jennifer Gordon, of Shauna Marshall, Bill Hing, Sameer Ashar, Bill Quigley, and a host of others. We also need to be well read in the literature about organizing, social activism, and liberation movements. We should be familiar with the stories and ideas of Ella Baker and Bob Moses, of Myles Horton and Paulo Freire, of Ernie Cortes, Wade Rathke, and Gary Delgado, of Cesar Chavez and Dolores Huerta, of Mahatma Gandhi and Martin Luther King. Ascanio Piomelli, Sensibilities for Social Justice Lawyers, 10 HASTINGS RACE & POVERTY L.J. 177, (Summer 2013) (citations omitted). 6. William Quigley, Ten Questions for Social Change Lawyers, 17 PUB. INTEREST L. RPTR. 204, 204 (Summer 2012). 7. See, e.g., Anna-Maria Marshall, Social Movement Strategies and the Participatory Potential of Litigation, in CAUSE LAWYERS AND SOCIAL MOVEMENTS 164 (Austin Sarat & Stuart A. Scheingold, eds., 2006); Gabriel Arkles, Pooja Gehi & Elana Redfield, The Role of Lawyers in Trans Liberation: Building A Transformative Movement for Social Change, 8 SEATTLE J. FOR SOC. JUST. 579, 614 (2010); John O. Calmore, A Call to Context: The Professional Challenges of Cause Lawyering at the Intersection of Race, Space, and Poverty, 67 FORD. L. REV. 1927, (1999); Scott L. Cummings & Ingrid V. Eagly, A Critical Reflection on Law and Organizing, 48 UCLA L. REV. 443 (2001); Charles Elsesser, Community Lawyering The Role of Lawyers in the Social Justice Movement, 14 LOY. J. PUB. INT. L. 375, 377 (2013); Jayanth Krishnan, Lawyering for a Cause and Experience from Abroad, 94 CAL. L. REV. 575, 577 (2006).

14 2017] 7 lawyer hero stories, but those stories tend to focus on lawyers as protagonists and leave out the organizations and other actors truly instrumental in effecting social change. 8 Now, more than ever, it is time to assume a growth mindset as we learn from our colleagues and friends in the movement. 9 We must embrace being uncomfortable around those who share our goals but disagree with our strategies. We need to continually re-examine our privilege and how it has shaped our perspectives. 10 From self-examination and honest communication of discomfort comes trust and connection the foundation for working together in a movement for equal human rights for all migrants. On a practical level, litigation is important, but it is only one tool to combat anti-immigrant administrative action, regulations, or statute. In some cases, litigation has not yielded long-term change. 11 In other contexts, litigation may not be available, whether because of court-stripping provisions in the immigration statute 12 or because of the watered-down constitutional standards that often applied in immigration cases. 13 To fight anti-immigrant, xenophobic policies, we will need to use every tactic we have, including but definitely not limited to litigation. This is not something new for most social justice lawyers, who have long employed a range of tactics, including local advocacy, media work, public education, and legislation See Jennifer Gordon, The Lawyer Is Not the Protagonist: Community Campaigns, Law, and Social Change, 95 CAL. L. REV. 2133, 2141 (2007). 9. See generally CAROL M. DWECK, MINDSET: THE NEW PSYCHOLOGY OF SUCCESS 7 (2006). 10. See Nisha Agarwal & Jocelyn Simonson, Thinking Like a Public Interest Lawyer: Theory, Practice, and Pedagogy, 34 N.Y.U. REV. L. & SOC. CHANGE 455, (2010) (describing discomfort that one new attorney experienced after examining his privilege, and the subsequent adjustment that he made). 11. See Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change 5, 95, (1974); see also GERALD P. LÓPEZ, REBELLIOUS LAWYERING: ONE CHICANO S VISION OF PROGRESSIVE LAW PRACTICE (1992). 12. See Immigration and Nationality Act of (f)-(g), 8 U.S.C. 1252(f)-(g) (2012); Reno v. Arab-American Anti-Discrimination Comm., 525 U.S. 471, (1999). 13. See Margaret Taylor, Demore v. Kim: Judicial Deference to Congressional Folly, in IMMIGRATION STORIES 343 (David A. Martin & Peter H. Schuck, eds., 2005); Hiroshi Motomura, Judicial Review in Immigration Cases After AADC: Lessons from Civil Procedure, 14 GEO. IMMIGR. L.J. 385 (2000); Hiroshi Motomura, Immigration Law after a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545 (1990). 14. See Ascanio Piomelli, The Challenge of Democratic Lawyering, 77 FORD. L. REV. 1383, 1385 (2009). See also Scott L. Cummings & Deborah L. Rhode, Public Interest Litigation: Insights from Theory and Practice, 36 FORD. URB. L.J. 603 (2009) (summarizing study of public interest attorneys who use multiple modes of advocacy beyond litigation). See generally JIM SCHULTZ, THE DEMOCRACY OWNERS MANUAL: A PRACTICAL GUIDE TO CHANGING THE WORLD (2002) (detailing practical tools like research, analysis, building and maintaining coalitions, messaging and media relations, lobbying, and leveraging the internet).

15 8 STANFORD J. OF CIVIL RIGHTS & CIVIL LIBERTIES [XIII:SE5 II. STUDY HISTORY It gives me hope to study the social movements that have caused lasting change for immigrant communities. One excellent example is the broad-based Central American solidarity movement that began in the 1980s and ultimately resulted in asylum and other immigration protections for Central American asylum-seekers. As Susan Coutin has detailed, the movement included religious organizations, political activists, refugees, and lawyers. 15 Together, the lawyers and others in the movement employed a broad range of tactics, from civil disobedience to class action lawsuits, and from direct action to legislative reform. 16 One of the signatures of the movement was the decision of churches to act as sanctuaries for refugees. 17 The federal government filed criminal charges against the churches, and movement lawyers sued the government in court. 18 The resulting lawsuit American Baptist Churches v. Meese established that Guatemalans and Salvadorans had a right to apply for asylum. 19 Advocates followed this legal victory with legislative efforts to broaden legalization for all Central American refugees and migrants. 20 of advocacy, engagement with unlikely allies, and persistence in the face of seemingly impossible odds. History gives us hope that disruptive, creative, movement-based lawyering can result in change, even when reform seems unattainable. III. WITNESS AND SPEAK OUT We must a tool against immigrant communities and communities of color. During the Bush Administration (in the post-9/11 years), the government targeted Muslim immigrants for secret arrests, secret detentions, secret surveillance, and closed deportation proceedings. 21 The government failed to meet its obligations under 15. Susan Bibler Coutin, Cause Lawyering and Political Advocacy: Moving Law on Behalf of Central American Refugees, in CAUSE LAWYERS AND SOCIAL MOVEMENTS, supra note 7, at Id. 17. Id. 18. Id. 19. Id. 20. Id. There is a substantial literature about litigation as integrated with political mobilization to advance social change. See, e.g., Cummings & Rhode, supra note 14, at , nn (collecting sources); Michael W. McCann, How Does Law Matter for Social Movements?, in HOW DOES LAW MATTER? 76, (Bryant G. Garth & Austin Sarat eds., 1998). For an overview and general analysis of cause lawyering s role, see STUART A. SCHEINGOLD & AUSTIN SARAT, SOMETHING TO BELIEVE IN: POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING (2004). 21. See Top Ten Abuses of Power Since 9/11, AM. CIVIL LIBERTIES UNION,

16 2017] 9 the Freedom of Information Act (FOIA) and refused to release responsive records during discovery in civil suits. 22 Secret government actions isolated Muslim and other immigrant communities and insulated government action from necessary public oversight. As we did during the Bush Administration, we may be called upon once again to combat secrecy by bearing visible, compassionate witness. It is often a first step toward uncovering injustice and standing in solidarity with vulnerable, targeted communities. After the Bush-era secret arrests and detentions, immigration lawyers and activists began to receive panicked calls from family members who did not know where loved ones were being held or what would happen next. An important step at that time was to uncover and share the stories of those who were being detained stories of racist taunts, physical abuse, inedible food, constant lighting, strip searches, and other unbearable conditions. 23 Shining the light on those government practices yielded representation for immigrants and a damages case that is now before the U.S. Supreme Court. 24 In describing what we uncover and see, words matter. In the post-9/11 years, anti-immigrant forces were quick to structure the discussion as a choice between civil rights/liberties and safety a false framing that devalued the rights that characterize our national identity (and a framing that President Obama later disparaged). 25 I hope we can structure the discussion during the Trump years from a pro-immigrant, pro-civil rights perspective and interrupt ongoing efforts to frame the choices we face as dichotomous. IV. REPRESENT IMMIGRANTS FACING REMOVAL Advocates fear that under Trump, the (last visited Jan. 16, 2017). See also Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002). 22. See H. COMM. ON GOV T REFORM, 109TH CONG., ON RESTORING OPEN GOVERNMENT: SECRECY IN THE BUSH ADMINISTRATION (2005); Ahmed A. Chehab, The Bush and Obama Administrations Invocation of the State Secret Privilege in National Security Litigation: A Proposal for Robust Judicial Review, 57 Wayne L. Rev. 335, (2011). 23. See, e.g., Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015). See also OFFICE OF THE INSPECTOR GEN., U.S. DEP T OF JUSTICE, THE SEPTEMBER 11 DETAINEES: A REVIEW OF THE TREATMENTS OF ALIENS HELD ON IMMIGRATION CHARGES IN CONNECTION WITH THE INVESTIGATION OF THE SEPTEMBER 11TH ATTACKS (2003); OFFICE OF THE INSPECTOR GEN., U.S. DEP T OF JUSTICE, SUPPLEMENTAL REPORT ON SEPTEMBER 11 DETAINEES ALLEGATIONS OF ABUSE AT THE METROPOLITAN DETENTION CENTER IN BROOKLYN, NEW YORK (2003). 24. Ziglar v. Abbassi, No See Mark Memmott, Reject False Choice Between Security and Ideals, Obama Urges, NPR NEWS (May 22, 2009, 10:38 AM EST), But civil rights groups have criticized the Obama Administration for its continued use of secrecy in a range of contexts. See, e.g., Establishing a New Normal, AM. CIVIL LIBERTIES UNION (July 2010),

17 10 STANFORD J. OF CIVIL RIGHTS & CIVIL LIBERTIES [XIII:SE5 federal government will place more individuals into deportation proceedings. This would worsen an already terrible access to justice crisis. Even though immigration laws are extraordinarily complex and deportation can result in separation from family and community (and in some cases, physical harm or torture), the government does not provide attorneys for those in removal proceedings. 26 Rather, immigrants must either pay someone to represent them or find someone to represent them for free. 27 The result is that the majority of immigrants endure removal proceedings without the assistance of counsel. 28 One of the most critical things that attorneys can do to assist immigrants is to provide representation in removal (deportation) proceedings. 29 Our recent study of San Francisco Immigration Court revealed that roughly two-thirds of immigrants lacked counsel at any stage in their removal proceedings. 30 But detained immigrants with counsel were three times more likely to prevail than those without attorneys. 31 Excellent studies of the effect of representation on deportation outcomes in New York, California, and nationwide confirm these findings. 32 Now is the time for attorneys new and experienced, full-time or pro bono to start representing individuals in removal proceedings. Attorneys can also join activists who have been agitating across the country to expand public funding for removal defense attorneys See Jayashri Srikantiah, David Hausman & Lisa Weissman-Ward, Access to Justice for Immigrant Families and Communities: A Study of Legal Representation of Detained Immigrants in Northern California, 11 STAN. J. C.R. & C.L. 207, (2015). 27. See id. at See Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. PA. L. REV. 1, 9 (2015). 29. Attorneys can also assist immigrants who are not in removal proceedings with affirmative applications for immigration relief. See Elinor R. Jordan, What We Know and Need to Know About Immigrant Access to Justice, 67 S.C. L. REV. 295, (2016) (discussing affirmative applications). 30. Srikantiah, Hausman & Weissman-Ward, supra note 26, at Id. The study drew from an existing Executive Office for Immigration Review (EOIR) dataset. It correlated representation to better outcomes but did not address causal issues (e.g., higher rates of success could have been due, in part, to case selection by attorneys). 32. Eagly & Shafer, supra note 28, at 75-77; CAL. COAL. FOR UNIVERSAL REPRESENTATION, CALIFORNIA S DUE PROCESS CRISIS: ACCESS TO LEGAL COUNSEL FOR DETAINED IMMIGRANTS (June 2016), PETER L. MARKOWITZ ET AL., ACCESSING JUSTICE: THE AVAILABILITY AND ADEQUACY OF COUNSEL IN IMMIGRATION PROCEEDINGS (Dec. 2011), New York City has led the effort to publicly fund removal defense through its NYIFUP program, which provides universal representation to every detained noncitizen facing removal in New York s immigration courts. See Bettina Rodriguez Schlegel, New York Immigrant Family Unity Project Lays Groundwork for Constitutional Victory, VERA (Dec. 28, 2015), Los Angeles and San Francisco have recently announced that they are considering public funding, and the California legislature is considering a bill that would provide public funds for removal defense. See Dakota Smith & Cindy Carcamo, Responding to Trump, L.A. Proposes $10-million Legal Defense Fund for Immigrants Facing

18 2017] 11 V. ENGAGE IN CREATIVE SOLUTIONS AT THE LOCAL AND STATE LEVEL When the federal government has fallen short in protecting the rights of immigrant communities, state and local governments have stepped forward. California is a leader in this regard, enacting laws granting undocumented immigrants the right to driver licenses, in-state tuition, and state-subsidized healthcare. 34 California has passed laws to protect unaccompanied noncitizen children and noncitizens with past convictions and to limit Immigration and Customs Enforcement (ICE) hold requests directed at local jails. 35 laws and similar measures across the country (and at the local level) reflect elected officials accountable to their diverse constituents. Mayors, governors, and other elected officials across the country have -immigrant policies (sometimes called sanctuary policies). 36 California legislators and others have already introduced a host of pro-immigrant bills. 37 If Trump continues to target immigrants, then we must redouble our efforts to work with these proimmigrant state and local officials to create a web of supportive policies and protections. 38 Deportation, L.A. TIMES (Dec. 19, 2016, 12:00 PM), See Soumya Karlamangla, Medi-Cal Will Soon Cover Children in the U.S. Illegally. The Real Battle? Getting Adults Insured, L.A. TIMES (Apr. 27, 2016, 2:00 AM), Melanie Mason, California Gives Immigrants Here Illegally Unprecedented Rights, Benefits, Protections, L.A. TIMES (Aug. 11, 2015, 7:58 AM), ( It started with in-state tuition. Then came driver s licenses, new rules designed to limit deportations and state-funded healthcare for children. And on Monday, in a gesture heavy with symbolism, came a new law to erase the word alien from California s labor code. ). 35. See Josh Harkinson, California Mobilizes for War Against Trump (Jan. 13, 2017, 6:00 AM), ( A 2014 law bans state authorities from holding immigrants convicted of minor crimes for any longer than required by criminal law.... Many California cities have even broader sanctuary city policies. ). 36. See Ruari Arrieta-Kenn, Sanctuary Cities Stand Firm Against Trump, POLITICO (Dec. 12, 2016, 5:14 AM), See Harkinson, supra note 35 ( Last month, state legislators introduced a package of bills that would go even further: Legislation authored by de León would bar state and local authorities from enforcing immigration laws, limit records sharing with federal immigration officials, and create safe zones at schools, hospitals, and courthouses where immigration enforcement would be prohibited. ). 38. For an excellent overview of the legal issues surrounding the role of cities and states in integrating immigrant communities, see Hiroshi Motomura, Immigration Outside the Law, 108 COLUM. L. REV. 2037, (2008). See also Keith Cunningham-Parmete, Forced Federalism: States as Laboratories of Immigration Reform, 62 HASTINGS L.J (2011); Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 VAND. L. REV. 787 (2008) (exploring role of federalism in immigration context); Kevin R. Johnson, Immigration