For folks who will be attending the Annual Meeting of the Association of American Law Schools this week in San Francisco, I wanted to plug something of an unusual program that I helped to organize, and that turns out to be far more timely than I (or, I suspect, AALS) expected when it was proposed last April. The session, part of the AALS “Academy Program,” is titled “Does Anyone’s Law Matter at the Border? Shootings, Searches, Walls, and the U.S. Constitution,” and is scheduled for 1:30-3:15 p.m. on Friday, January 6, in “Continental Ballroom 5,” at the Hilton Union Square. Here’s the synopsis:
Scholars of law and geography have long recognized that borders are legally and socially constructed, rather than fixed or pre-determined. Yet, even as the federal courts in recent years have demonstrated a renewed interest in the extraterritorial application of U.S. statutory and constitutional law, they have continued to treat the extraterritoriality question as binary in doctrinal terms—that is, to assume that individuals are either in, or wholly outside, the territorial United States. A series of recent cases involving cross-border shootings of foreign nationals by U.S. immigration officers and the “border search” exception to the Fourth Amendment’s Warrant Clause, along with political proposals for the construction of border walls and other security measures, highlight the challenges that the constructed nature of borders poses not just to existing extraterritoriality doctrine, but to far larger questions of legal sovereignty and public policy. Just how much does — and should — law matter at the border? Whose law? This panel will address these questions through a moderated conversation about the current state of relevant U.S. statutory and constitutional doctrines, still-unanswered legal and policy questions, and how to strengthen basic rights protection at and across the border.
I have the privilege of moderating the session, which will feature Lee Gelernt from the ACLU’s Immigrants’ Rights Project; Chimène Keitner from UC-Hastings (and, at the moment, Counselor on International Law in the Legal Adviser’s Office at the State Department); Gerry Neuman from Harvard Law School; Moria Paz from Stanford Law School; and Leti Volpp from UC-Berkeley. Given the election results, the Supreme Court’s grant of certiorari in Hernandez v. United States (one of the cross-border shooting cases to which the synopsis adverts, in which I’m co-counsel to the Petitioners), and various other intervening developments since we suggested this idea, it should be a fascinating and important discussion.