Judith Resnik, Yale Law School

Bordering By Law: The Migration of Law, Crimes, Sovereignty, and the Mail

Date: 
Mon, 04/29/2013
Location: 
4:30-6 PM, Kerstetter Room, Marx Hall
Event Category: 
Special Event

Please join us for a LAPA Seminar with Judith Resnik, the Arthur Liman Professor of Law at Yale Law School, who will present "Bordering by Law."  Her commentator is Paul Frymer, associate professor of Politics at Princeton. 

As always, the LAPA format asks that seminar participants familiarize themselves with the paper in advance. The commentator will open the session by summarizing the main themes in the paper and presenting some topics for discussion. The author then has the right of first response before we open to the floor for questions. The seminar will end with a brief reception in the Kerstetter Room, giving everyone a chance to mingle and meet.

Abstract: "Law constructs not only borders but also identity on both sides of the boundaries inscribed. This paper analyzes the inter-relationships of the law of the alien and the law of the citizen, of "federal" and "state" law, and of "domestic" and "foreign" law. The permeability of these categories shows the normative implausibility of crafting functioning boundaries around the rights or the laws of "others." 

In 2012, the US Supreme Court decided Arizona v. United States, which held that federal law preempted states from imposing registration requirements on aliens and from adding criminal sanctions atop those crafted by the federal government.  The Arizona ruling also cushions congressional "plenary powers" over migration so that now the federal government cannot directly dispatch state law enforcement officers to police migrants but instead must rely on agreements negotiated with each state or local system.   But the 2012 decision did not elaborate constitutional constraints that would prevent federal law from deepening the illegalization and criminalization of migration.   This paper explores whether separating aliens from citizens, state from federal, domestic from foreign is possible and how borders are constituted through law.  

Bordering by law is not the only theme of the last century.   American values and its laws, working in conjunction with the values and laws of other sovereigns,  also produced ways to relax borders. A taken-for-granted exemplar is the now commonplace ease by which objects – letters and parcels – move across borders. By contrast with the restricted movement of people, the movement of mail not only unremarkably crosses state lines within the United States but also travels abroad with ease.   There are dangers, however, in assuming the mail is a model for migration, as privatization -- the movement of activities from public to private control -- also comes with a reduction in the commitment to universal services and privatization also threatens other public values.  

The comparison of the movement of peoples with the movement of mail highlights the democratic potential of sovereign states, if they can work across borders with each other, if they can insist on providing cross-subsidies for diverse services as part of their political identity, and if they are all respectful of human liberty."

Judith Resnik is the Arthur Liman Professor of Law at Yale Law School, where she teaches about federalism, procedure, feminism, and local and global interventions to diminish inequalities and subordination. Professor Resnik's writings include Law as Affiliation: "Foreign" Law, Democratic Federalism, and the Sovereigntism of the Nation State (International Journal of Constitutional Law, 2008); Representing Justice: From Renaissance Iconography to Twenty-First Century Courthouses, (with Dennis E. Curtis) ( Proceedings of the American Philosophical Society, 2007); Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry (The Yale Law Journal, 2006); Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure (in a symposium in Cardozo Law Review, 2005); and Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III ( Harvard Law Review, 2000). Her book,Migrations and Mobilities: Citizenship, Borders, and Gender (co-edited with Seyla Benhabib), has recently been published by New York University Press.  For more about Professor Resnik, please visit her website

Paul Frymer teaches and writes on topics in American law and politics, particularly as they intersect with issues of democratic representation, race and civil rights, and labor and employment. He is a former LAPA fellow (2004-2005), as well as Acting Director (2009-2010). He is the author of two books: Uneasy Alliances: Race and Party Competition in America (reissued in 2010 with an afterward on President Obama's election) and Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (2008), both of which were published by Princeton University Press. He has also either authored or is currently writing about topics ranging from legal understandings of political parties to the racial politics of Hurricane Katrina and affirmative action to the role of law and politics in the historical development of American territorial expansion.