Symposium Articles

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.

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.

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.

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.

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.

Kim Barry’s Fruitful Provocation

There is a standard analysis of default rules in contract law, including those forms of contract law that fall under the label of employment law. But behavioral economics raises many complications. Professor Cass R. Sunstein explains that the default rule can create an endowment effect, making employees value certain rights more, simply because they have been granted such rights in the first instance. New evidence, based on a survey of law students, is introduced to show a significant endowment effect in the context of vacation time. Similarly, the default rule for savings plans, set by employers or by law, seems to have a large effect on employee behavior. When the default rule affects preferences and behavior, conventional economic analysis seems indeterminate; either default rule can be efficient. In employment law, analysis of distributive consequences also suggests the difficulty of deciding which default rule to favor, because any switch in the rule is unlikely to have significant redistributive effects. Nonetheless, switching the default rule can, in certain circumstances, have desirable effects on workers’ welfare. A central question is whether the stickiness of the default rule reflects a genuine change in values, or instead, employee confusion or bargaining strategy.

Defined contribution plans empower employees to effectively save money toward their retirement in a tax-favored fashion. The retirement benefits that employees actually receive depend on four decisions that they have to make: whether to participate in the plan, what percentage of salary to contribute to it, how to invest these plan contributions, and, if the employee leaves the job prior to retirement, whether to take a current cash distribution of their 401(k) plan account balance or allow the account balance to continue to accumulate. In her contribution to the Symposium, Professor Susan J. Stabile explores the behavioral tendencies that affect participant behavior in defined contribution plans and how the current legal regime influences that behavior. Her research finds that the current statutory regime has not produced economically rational decisions among employees. Professor Stabile provides a number of avenues that can be explored for promoting employee decisions that would maximize retirement security and can serve as a springboard for future research.

Often employers will agree to pay their employees more than the minimum the employees would accept for performing the job in question. One reason for this behavior is that such “fair” treatment by employers may encourage better job performance by employees. In her contribution to the Symposium, Professor Christine Jolls examines some of the legal implications of this “fairness dynamic.” Empirical evidence strongly supports the idea that some employers will offer to pay employees more than the minimum amount the employees would accept in order to induce them to exert more effort, and that employees respond in turn by working harder. Fairness behavior is of special relevance to employers when monitoring and punishment for inadequate performance would prove difficult Once the fairness dynamic described here is taken into account, the argument for the minimum wage requirement imposed by the Fair Labor Standards Act is undercut in situations where employees are relatively difficult to monitor, as fairness considerations will tend to drive the wage up regardless. This legal conclusion is a reminder that while behavioral law and economics may sometimes be more likely than traditional law and economics to support legal intervention, in other cases the opposite is true.

While the law of the American workplace presumes that the market for employment operates as formal economic theory would predict, it would be difficult to find an area of law where the governing conceptual model is at such disjuncture from the law as applied. Professor Samuel Issacharoff argues that behavioral law and economics is the latest model that attempts to explain this disjuncture. However, he provides two cautions to the application of this model. First, he notes that the empirical observations that this model offers are amenable to conflicting interpretations and thus possess a limited ability to offer reliable generalizations. Additionally, he explains that even if the empirical foundations were solidified, empiricism itself does not generate normative conclusions.