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Transformative Immigration Lawyering

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View the page of Jayesh Rathod

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Jayesh Rathod recommends that law clinics set ambitious goals for structural change and by equipping students with knowledge and skills needed for transformative lawyering.

Image courtesy of interviewee. June 12, 2024

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This video discusses the current state of immigration policy in the United States, emphasizing the ongoing debates and challenges within the immigration system. It highlights the slow progress in the immigrants' rights movement over the past decades, with a distinction between the more restrictive policies of the Trump administration and the limited reforms under the Biden administration.

The speaker notes that significant comprehensive immigration reform seems unlikely due to the increasingly polarized political climate and the tendency towards incrementalism—an approach characterized by making small, gradual adjustments rather than large overhauls. Incrementalism is described as a practical response to political and cognitive constraints, allowing for gradual changes that may lead to compromise among various stakeholders.

However, the speaker critiques incrementalism for generating tensions within the immigrant rights community, reinforcing narratives that privilege certain groups of immigrants, and limiting broader perspectives and proposals for more transformative change. It can also uphold structural inequalities within the immigration system.

The concept of path dependence is introduced to explain how historical choices create institutional inertia that makes it difficult to implement significant reforms. This video interrelationship between path dependence and incrementalism contributes to the continuation of the status quo, often favoring established interests over marginalized communities.

The speaker argues that law clinics are well-positioned to challenge these dynamics by fostering radical change and engaging communities in advocacy efforts. By setting ambitious goals for reform and cultivating innovative solutions, law clinics can help shift the focus from incremental improvements to transformative changes in immigration policy. They should also educate students about the limitations of incrementalism and encourage critical perspectives on conventional reform efforts.

Ultimately, while systemic change is recognized as difficult and uncertain, the speaker emphasizes the importance of planting seeds for future reform, urging advocates to adopt a more imaginative approach to the U.S. immigration system and recognize the potential for similar critiques in other areas of law.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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Immigration policy remains at the center

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of public debate today in the United States.

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It's obviously a very hotly contested political issue,

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and we've seen politicians at the federal level

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and the state level discussing border policies, how best

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to manage asylum and refugee flows, immigration, detention,

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how to make adjudication more efficient, right?

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The list goes on, and it's clear

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that the US immigration system faces many challenges,

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and there are many very different, starkly,

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different views and the path forward.

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But if we look at the last few decades in traced their

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trajectory of the immigrants rights movement, we can see

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that the progress towards meaningful,

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meaningful reform has been really slow.

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Um, although there was some advances

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during the Obama administration, the Trump administration,

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as we know, embraced a much more restrictionist immigration

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policy, which included travel bans,

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family separations at the border,

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and weakened protections for humanitarian migrants.

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And although President Biden did campaign on a platform

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that promised significant improvements in the US immigration

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system, as I said, progress has been slow on some issues,

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especially relating to asylum seekers at the border.

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The current administration has embraced positions

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that are surprisingly similar to those

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of the prior administration.

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And so overall major policy change, specifically in the form

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of comprehensive immigration reform seems quite unlikely,

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especially given how politicized Congress has become

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incrementalism is a process in which legal

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or policy reform occurs via small changes to the status quo.

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So, significant reforms under an incrementalist model

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require multiple smaller steps.

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So instead of entirely overhauling an area of law,

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legislators or regulators will make smaller tweaks

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to law gradually moving the law in a different direction.

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And there's various reasons why,

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incrementalism makes sense, right?

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As an approach to policymaking, even if one doesn't agree

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with it, normatively, right?

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So there's an economist, Charles Lin Blum,

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who in the past argued that time

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and resource constraints favor incrementalism.

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It's just easier and quicker to do things in smaller steps.

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And, there's a cognitive dimension to this as well.

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He argued that cognitive limitations,

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the way in which humans process information make it easier,

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for them to adopt incrementalism instead

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of tackling a bigger, more complex problem.

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Um, it's just simpler to do things through a series

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of smaller, successive choices.

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And also incrementalism might make sense

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because of the changes that you see as a result

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of incrementalism are often the product

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of compromise, right?

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There's multiple competing views.

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And as a result of compromise, they decide on a small,

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incremental step.

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And finally, some people say, well,

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incrementalism makes sense

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because it's easier to undo it, right?

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If you don't like the policy change,

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if it's a small change, you can reverse it.

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Now, at the same time, I'll emphasize

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that incremental is not,

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incrementalism is not the only approach, right?

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We've seen at various moments in, US legal history,

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that thought there have been radical transformations in the

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law, including in the immigration space.

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So for example, in the 1960s, on the heels

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of the Civil Rights Movement, we saw a major change

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to US immigration law.

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Likewise, after the attacks of September 11,

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there was also the creation of the US Department

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of Homeland Security,

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another major overhaul in US immigration law.

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So, once again, it's an approach that makes sense in a lot

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of instances, but not the only approach.

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There are several features of the US immigration system

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that make it a prime candidate

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for incremental decision making.

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As a baseline matter, we know

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that US immigration law is incredibly broad.

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It's a complex policy realm.

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And with so many issues and sub-issues, it follows, right?

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One might say that incrementalism would be an

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attractive approach, right?

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It might just be too hard to craft some kind

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of wholesale reform.

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Uh, and related to that, there is a broad

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and diverse set of stakeholders in

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the US immigration system.

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Everything from businesses, organized labor,

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faith-based organizations, civil rights organizations,

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grassroots entities, right?

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So with so many different voices

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and perspectives at the table, sometimes it's easiest

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to achieve compromise through an incrementalist approach.

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Uh, and also because immigration today in the US is such a

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politically charged topic,

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legislators might favor modest changes.

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They might fear getting behind a broader systemic change

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'cause it might result for them in political backlash from

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opponents or interest groups.

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Uh, and of course, we've seen in the media

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and in political discourse

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how conversations about national security, the invasion

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of immigrants, right?

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Immigrant criminality, all of those things have been used

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to attack politicians who favor humanitarian

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or more kind of welcoming policies, right?

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And so, given all these dynamics, it makes sense

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that in the immigration system change tends

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to occur incrementally, you know,

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whether it's via a small rulemaking change

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or executive action.

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And oftentimes these incremental changes

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are somewhat hidden from the public eye.

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Incrementalism is often framed

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as an inevitable approach, right?

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To immigration policymaking.

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But there are some costs and challenges involved,

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and these are often surfaced less frequently.

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It's almost a reflexive move, right?

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To exclude broader reform proposals

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in the immigration space.

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And folks might argue that well, they're too

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Politically controversial and they're not achievable.

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Uh, or maybe that folks

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who are within the immigrants rights movement, some

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of the actors simply don't have the bandwidth to conceive of

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and work towards entirely new systems, right?

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Uh, but this default, this tendency to default

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to incrementalism does have costs.

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One is that I believe that it will generate,

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and it does generate tensions

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between the community-based actors in the immigrants rights

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field, and others, right?

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So, let me be more specific.

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Over many decades now, immigrants

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and their allies have been organizing,

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and through this process, members

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of affected communities have been articulating

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what their visions are for reform.

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And many of their visions are

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transformative in nature, right?

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For example, including the abolition of ice,

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or stopping all deportations, for example.

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Um, yet when we focus on incrementalism,

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these proposals are quickly labeled as unrealistic,

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and instead they get watered down.

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And over time, this kind of reflexive rejection

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of broader scale change can create divisions

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between different segments of the movement.

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I'd also argue that incrementalism reinforces narratives

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that privilege, good or deserving immigrants, right?

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A lot of incrementalist policymaking, those who benefit from

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that are the immigrants who are viewed

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as morally blameless, right?

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This includes DACA beneficiaries, young people,

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crime victims, and others who the law

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and policy frame is vulnerable or needing protection.

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And by rewarding these subsets of the community,

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incrementalism, I would argue whether it's intentional

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or not, is creating a division between good

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and quote unquote bad immigrants, right?

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And also fueling a politics of respectability.

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Uh, and also interestingly, a lot

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of the affirmative incremental changes

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that we've seen in recent years,

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especially under the Biden administration, involves

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granting individuals authorization to work,

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which while important, tends to limit the role

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of non-citizens simply to economic actors, right?

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Not to broader members of the polity.

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Um, and in some ways it ignores the fact that non-citizens

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of the United States provide all other kinds

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of contributions, political, social, cultural right,

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engagement with civic organizations, et cetera, right?

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But instead frames their role as an economic one.

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If we apply the lenses of critical legal theory, we can see

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that incrementalism in the US immigrants rights space tends

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to serve the interests of more powerful

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established entities.

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So I'll be more specific.

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We know that a fundamental tenet of critical legal theory is

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that the law perpetuates hierarchies,

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often racial hierarchies

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and the law can undergird systems of social control, right?

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And we see, for example, how laws have created systems

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of tiered personhood historically, right?

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Leaving communities of color, often non-citizens,

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in a type of second class status, right?

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And so if we use this lens of critical theory

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and we apply it to incrementalism in the immigration space,

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we can see how incrementalism is reinforcing this kind

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of circumscribed subordinated role for non-citizens, right?

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Um, lawmakers, as I said, will emphasize the role

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of non-citizens in the economy, putting them to work,

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right, of extracting the economic value from them,

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but at the same time failing

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to acknowledge their full personhood

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and their broader importance to society.

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Um, and by limiting, you know, these changes

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to just giving individuals work authorization

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or work permits, it often means

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that non-citizens don't have a pathway

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to permanent legal status, including citizenship.

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And by blocking access to citizenship,

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that's blocking access to greater political power, right?

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And reinforcing existing, power relationships,

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in, in the country.

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And it's also interesting to reflect on whether

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dynamics within the immigrants rights movement itself are,

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part of this subject to the same critique,

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whether they should be questioned, right?

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By calling for only modest change, for example, might it be

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that kind of established insider organizations

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that depend on the government for access, right?

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For influence, that that's a way for them

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to remain on good terms with White House.

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So I think those are key critical questions that we need to,

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examine in the public policy and legal literature.

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This idea or theory of path dependence, is used

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to explain how choices that are made in the past, right?

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A series of past choices can lead to a kind

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of institutional inertia, which then stands in the way

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of making significant reforms.

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So stated more simply, right?

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Once, let's say an administrative agency has been operating

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along a particular path, the costs of switching

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to a new approach become too great.

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And this theory or this concept comes from economics, right?

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So in the past, scholars wanted to understand why it was

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that market competitors, right?

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New competition failed, to lead consumers

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or to the market to adopt new, more efficient technology.

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And they, they basically observed that some

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of the older decisions made, some

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of the older investments in particular approaches

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or technologies were too difficult to reverse.

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Uh, and as a result, the industry was locked into systems

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that were suboptimal.

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One classic example of this, of path dependence is the

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keyboard that we use for English language, typing the word

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keyboard, q W-E-R-T-Y, keyboard.

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And many people have done research

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and say, actually, there's much more

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efficient keyboard models.

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But because it was put into place

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and we're essentially locked into it, it's too difficult

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to undo that, right?

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So if we apply this now to immigration agencies,

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we can easily imagine how the agencies who've been operating

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under the same basic statutory structure for decades,

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they've made budget decisions, personnel decisions,

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that are difficult to undo, right?

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Uh, especially

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because in the immigration system, it's such a large system,

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so much embedded bureaucracy, they've invested

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so much money into it, the operational structure that

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that's difficult to unravel.

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And it makes sense, right?

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That government actors would be resistant, right?

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To change systems and to upend them.

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Uh, 'cause it's much simpler

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to keep things the way that they are.

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And similarly, even advocates, right?

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Who are on the outside might find it easier

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to operate within systems

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that they're already familiar with.

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Path dependence is part of how law

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and legal institutions become vehicles

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for entrenching the status quo instead of

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promoting truly transformative change.

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And there are individuals

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and institutions in the immigrants rights space

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that benefit from the current structure, right?

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For them, it's convenient to default to path dependence

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because it preserved the status quo.

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For example, in the immigration law space,

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apart from the government institutions

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that might benefit from path dependence,

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there may be insiders, right?

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Who are very knowledgeable about the immigration system,

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who have a long institutional memory.

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They know the system and how it works.

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They know this entrenched,

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longstanding system backwards and forwards.

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And so path dependence operates to their advantage.

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And conversely, there are individuals who may be newer

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to the immigrants rights movement, right?

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People maybe who are brought into

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the movement through organizing.

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They may be unfamiliar with some of the past efforts.

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And as a result, when we're engaging in policy

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conversations, it's easily easy for those folks

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to become sidelined.

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And that's problematic because these outsider perspectives

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and fresh perspectives are needed for us

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to have a meaningful critique of the system.

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It, it is also critical to recognize that incrementalism

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and path dependence are not independent forces,

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but they mutually reinforce one another, right?

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So the path dependence

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that we see in the US immigration system,

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it fuels incrementalism, right?

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When there is this kind of institutional inertia

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of path dependence, the changes that politicians

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and mainstream advocacy organizations propose, it's likely

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to be simply tweaks to the existing system, right?

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Um, this might be an increase in number of visas

14:48.925 --> 14:50.585
or extending a period of time

14:50.765 --> 14:53.005
for particular benefits, et cetera.

14:53.665 --> 14:56.885
Uh, and then conversely, incrementalism itself

14:57.405 --> 14:58.525
reinforces path dependence.

14:58.525 --> 15:00.525
And so when advocates are thinking about

15:01.145 --> 15:02.765
larger scale change, right?

15:02.825 --> 15:05.765
Or even any kind of change, often incremental change, right?

15:05.835 --> 15:08.485
They will try to assimilate their proposals within

15:09.025 --> 15:12.725
an existing system, and framework, right?

15:12.745 --> 15:15.765
And so, in another way of saying that is that incrementalism

15:15.785 --> 15:18.525
and path dependence work together right

15:18.585 --> 15:21.445
to disincentivize fundamental change in

15:21.445 --> 15:22.485
the US immigration system.

15:22.965 --> 15:24.965
I believe that law clinics are very well positioned

15:24.965 --> 15:26.565
to help address incrementalism

15:26.705 --> 15:28.885
and path dependence in the immigration space.

15:28.885 --> 15:31.365
And to achieve more radical transformative change,

15:32.265 --> 15:35.005
law clinics are already active in the space.

15:35.005 --> 15:36.245
They're involved in litigation

15:36.345 --> 15:38.005
and advocacy around immigration,

15:38.025 --> 15:41.445
and they're recognized as players, right in the eyes

15:41.445 --> 15:43.245
of the government advocates

15:43.245 --> 15:44.885
and also members of the community, right?

15:44.945 --> 15:47.925
And they also, interestingly, offer a very unique mix

15:47.925 --> 15:49.485
of substantive expertise

15:50.265 --> 15:52.605
and institutional legitimacy, right?

15:52.605 --> 15:55.285
So they have this kind of insider outsider perspective,

15:55.615 --> 15:58.965
which I believe though will allow law clinics to

15:59.565 --> 16:01.485
credibly advance, change

16:01.505 --> 16:03.285
and to address the challenges in the system.

16:04.065 --> 16:06.645
Uh, and it's important to recognize

16:06.645 --> 16:08.485
that clinics have adopted different models.

16:08.495 --> 16:11.405
Everything from movement lowering approaches

16:11.545 --> 16:14.725
to individual legal services, delivery to hybrid approaches.

16:15.185 --> 16:18.085
And this kind of broad range of experience aligns well with

16:18.085 --> 16:21.405
what needs to be done, to make these changes happen.

16:22.705 --> 16:26.765
Now, as it relates to overcoming the entrenched challenges,

16:27.625 --> 16:31.005
in my view, the path forward is for immigration clinics

16:31.385 --> 16:32.685
to work collaboratively

16:32.685 --> 16:35.045
with stakeholders from effective communi affected

16:35.045 --> 16:37.445
communities, and intentionally

16:37.585 --> 16:39.365
and transparently set goals

16:39.505 --> 16:42.765
for transformative change within US immigration law.

16:43.185 --> 16:45.445
So the idea to be more specific is

16:45.465 --> 16:48.165
to name an ambitious goal for their work.

16:48.985 --> 16:52.125
And it might be a goal for a semester, a full academic year,

16:52.145 --> 16:53.325
or even longer term.

16:53.505 --> 16:57.715
So this might exam, for example, involve creating a pathway

16:57.855 --> 16:59.795
for non-citizens to access public benefits.

17:00.775 --> 17:03.755
Or another example one that we're pursuing in my clinic

17:04.575 --> 17:07.835
is the project of decriminalizing, the act

17:07.835 --> 17:09.915
of entering the United States unlawfully.

17:10.415 --> 17:12.515
And so, once this goal has been identified,

17:12.515 --> 17:15.275
then the clinic would work towards that goal gradually

17:15.855 --> 17:18.275
and would communicate its goal publicly.

17:18.335 --> 17:20.075
And even that mere public

17:20.715 --> 17:23.995
announcement would signal a move away from a move away from

17:23.995 --> 17:25.955
incrementalism and path dependence.

17:27.695 --> 17:29.745
Now, let's be clear

17:29.745 --> 17:31.465
that setting the goal may not always

17:31.465 --> 17:32.705
be a simple task, right?

17:32.705 --> 17:34.985
The c the clinic will probably need

17:34.985 --> 17:38.105
to communicate thoughtfully with members

17:38.645 --> 17:40.985
of the affected immigrant communities.

17:41.525 --> 17:42.865
Um, even thinking about

17:43.045 --> 17:47.025
who are appropriate interlocutors from the community

17:47.685 --> 17:48.785
can be kind of

17:48.825 --> 17:50.005
A complex question.

17:50.585 --> 17:52.405
But the goal overall is to

17:53.075 --> 17:55.485
normalize radical transformative change

17:55.785 --> 17:56.805
by setting these goals.

17:57.545 --> 17:59.525
Um, because, you know, when community member,

17:59.715 --> 18:02.605
community members push for these kinds of changes, often

18:03.065 --> 18:05.205
as I've stated, their ideas are dismissed.

18:05.205 --> 18:06.805
They're sitting as unrealistic.

18:07.225 --> 18:09.765
But clinics have the power to move these ideas,

18:09.775 --> 18:13.085
which are often seen as peripheral to more of the center

18:13.305 --> 18:14.405
of the conversation.

18:15.025 --> 18:17.565
And again, their institutional legitimacy

18:17.565 --> 18:20.325
and the gravitas that they bring can really help

18:20.855 --> 18:22.885
shift the terrain of the discourse.

18:23.795 --> 18:26.445
Clinics can also work collaboratively, right?

18:26.445 --> 18:29.685
Different school clinics can work together either

18:29.825 --> 18:33.525
by pursuing the same goal in different geographical realms,

18:33.865 --> 18:36.605
or it may be that they might leverage their respective

18:36.965 --> 18:38.405
strengths around advocacy

18:38.405 --> 18:40.965
or litigation to tackle the same challenge

18:40.965 --> 18:42.125
through different approaches.

18:42.945 --> 18:45.605
Now, as it relates to the content of the clinic seminar,

18:46.405 --> 18:47.685
I believe that there are a couple of changes

18:47.715 --> 18:49.045
that clinics can make

18:49.385 --> 18:51.885
to educate students about incrementalism

18:51.905 --> 18:54.165
and path dependence, but also to give them the skills

18:54.265 --> 18:55.525
and knowledge that they need

18:55.985 --> 18:58.165
to engage in larger scale change making.

18:58.705 --> 19:02.245
For example, clinics can engage students in dialogue about

19:02.245 --> 19:05.325
the conditions that permit transformative change

19:05.385 --> 19:08.965
by looking at case studies from US legal history,

19:09.225 --> 19:12.085
and also looking at theories from the social sciences

19:12.355 --> 19:15.165
that explain how transformative change can occur.

19:16.205 --> 19:17.885
I think it's also important for clinics

19:17.885 --> 19:21.165
to open students creative minds and engage them

19:21.465 --> 19:25.085
and teach them how to engage in creative

19:25.925 --> 19:27.725
solution generation and problem solving.

19:28.465 --> 19:30.525
You know, it's important for lawyers, of course,

19:31.185 --> 19:34.165
to understand goals and to identify strategies.

19:34.545 --> 19:37.965
But oftentimes once we get to the solution generation phase,

19:38.395 --> 19:41.445
lawyers are constrained in their creative thinking.

19:42.065 --> 19:45.085
So opening up the creative thinking

19:45.085 --> 19:46.485
possibilities is critical.

19:47.105 --> 19:49.965
And also integrating critical perspectives, right?

19:50.305 --> 19:51.845
Having students reflect on

19:51.865 --> 19:55.005
how conventional liberal law reform efforts,

19:55.975 --> 19:59.485
these are approaches which tend to embrace incrementalism

19:59.505 --> 20:01.845
and path dependence, really fail

20:01.845 --> 20:03.525
to support vulnerable communities.

20:03.525 --> 20:06.205
They fail really to address some

20:06.205 --> 20:08.605
of the entrenched power differentials.

20:09.065 --> 20:12.525
Um, and so having frank conversations

20:13.185 --> 20:15.365
by applying these critical lenses are gonna be important

20:15.785 --> 20:17.365
for students to understand the

20:17.525 --> 20:18.965
circumstances that they're up against.

20:19.425 --> 20:21.765
And altogether, by implementing these changes,

20:22.515 --> 20:25.405
will provide students with a more refined vision of

20:25.675 --> 20:30.125
what the next generation of immigrants rights lawyers need

20:30.125 --> 20:31.165
to be equipped to handle.

20:31.985 --> 20:33.325
In general, you know, the movement

20:33.325 --> 20:35.725
for immigrants rights in the United States has spent decades

20:36.275 --> 20:38.205
agitating for changes to the law.

20:38.665 --> 20:42.085
Uh, but most of the proposals that we've seen really haven't

20:42.755 --> 20:45.525
addressed some of the fundamental structural changes

20:45.525 --> 20:46.805
that we need to reform the

20:46.805 --> 20:47.805
System. And instead,

20:47.805 --> 20:48.645
incrementalism

20:48.665 --> 20:51.845
and path dependence really have created this dynamic

20:52.055 --> 20:55.085
where kind of modest changes have become the norm.

20:55.665 --> 20:58.245
And I do think that law clinics are very well positioned

20:58.465 --> 20:59.645
to challenge this dynamic.

20:59.835 --> 21:03.645
They can work in collaboration with affected communities

21:04.185 --> 21:06.605
and really changed the discourse so

21:06.605 --> 21:09.085
that we're not reflexively rejecting kind

21:09.085 --> 21:12.205
of broader scale change, but instead using our training

21:12.385 --> 21:14.805
and creativity to think about ways

21:15.025 --> 21:17.325
of re-imagining the US immigration system.

21:18.145 --> 21:19.165
And I'll be clear that

21:19.405 --> 21:20.885
although this research

21:20.885 --> 21:23.365
that I've done has focused on the US immigration system,

21:24.265 --> 21:27.125
it can equally apply to other areas of law.

21:27.705 --> 21:29.965
And I encourage others in other disciplines

21:30.105 --> 21:33.925
to think about whether these same critiques might apply

21:33.945 --> 21:35.245
to their areas of law.

21:35.825 --> 21:38.325
But at the same time, we need to be honest that these kinds

21:38.325 --> 21:40.365
of systemic changes are hard.

21:40.715 --> 21:41.965
They're difficult. They,

21:42.145 --> 21:44.525
in many cases may be unlikely to succeed.

21:44.945 --> 21:47.645
And even if we don't see the fruits of our labors

21:47.645 --> 21:49.805
and our own professional careers,

21:50.155 --> 21:52.285
it's worth planting the seeds so

21:52.285 --> 21:54.685
that over time these changes can take root

21:54.685 --> 21:56.605
and hopefully flourish in the future.

21:57.825 --> 21:57.945
I.

00:00 - Immigration policy remains at the center of public debate today in the United States. It's obviously a very hotly contested political issue, and we've seen politicians at the federal level and the state level discussing border policies, how best to manage asylum and refugee flows, immigration, detention,

00:19 - how to make adjudication more efficient, right? The list goes on, and it's clear that the US immigration system faces many challenges, and there are many very different, starkly, different views and the path forward. But if we look at the last few decades in traced their trajectory of the immigrants rights movement, we can see that the progress towards meaningful, meaningful reform has been really slow. although there was some advances

00:45 - during the Obama administration, the Trump administration, as we know, embraced a much more restrictionist immigration policy, which included travel bans, family separations at the border, and weakened protections for humanitarian migrants. And although President Biden did campaign on a platform that promised significant improvements in the US immigration system, as I said, progress has been slow on some issues, especially relating to asylum seekers at the border. The current administration has embraced positions

01:19 - that are surprisingly similar to those of the prior administration. And so overall major policy change, specifically in the form of comprehensive immigration reform seems quite unlikely, especially given how politicized Congress has become incrementalism is a process in which legal or policy reform occurs via small changes to the status quo. So, significant reforms under an incrementalist model require multiple smaller steps. So instead of entirely overhauling an area of law,

01:53 - legislators or regulators will make smaller tweaks to law gradually moving the law in a different direction. And there's various reasons why, incrementalism makes sense, right? As an approach to policymaking, even if one doesn't agree with it, normatively, right? So there's an economist, Charles Lin Blum, who in the past argued that time and resource constraints favor incrementalism. It's just easier and quicker to do things in smaller steps.

02:24 - And, there's a cognitive dimension to this as well. He argued that cognitive limitations, the way in which humans process information make it easier, for them to adopt incrementalism instead of tackling a bigger, more complex problem. it's just simpler to do things through a series of smaller, successive choices. And also incrementalism might make sense because of the changes that you see as a result of incrementalism are often the product

02:54 - of compromise, right? There's multiple competing views. And as a result of compromise, they decide on a small, incremental step. And finally, some people say, well, incrementalism makes sense because it's easier to undo it, right? If you don't like the policy change, if it's a small change, you can reverse it. Now, at the same time, I'll emphasize

03:14 - that incremental is not, incrementalism is not the only approach, right? We've seen at various moments in, US legal history, that thought there have been radical transformations in the law, including in the immigration space. So for example, in the 1960s, on the heels of the Civil Rights Movement, we saw a major change to US immigration law. Likewise, after the attacks of September 11, there was also the creation of the US Department

03:43 - of Homeland Security, another major overhaul in US immigration law. So, once again, it's an approach that makes sense in a lot of instances, but not the only approach. There are several features of the US immigration system that make it a prime candidate for incremental decision making. As a baseline matter, we know that US immigration law is incredibly broad. It's a complex policy realm.

04:06 - And with so many issues and sub-issues, it follows, right? One might say that incrementalism would be an attractive approach, right? It might just be too hard to craft some kind of wholesale reform. and related to that, there is a broad and diverse set of stakeholders in the US immigration system. Everything from businesses, organized labor, faith-based organizations, civil rights organizations,

04:29 - grassroots entities, right? So with so many different voices and perspectives at the table, sometimes it's easiest to achieve compromise through an incrementalist approach. and also because immigration today in the US is such a politically charged topic, legislators might favor modest changes. They might fear getting behind a broader systemic change 'cause it might result for them in political backlash from opponents or interest groups.

04:59 - and of course, we've seen in the media and in political discourse how conversations about national security, the invasion of immigrants, right? Immigrant criminality, all of those things have been used to attack politicians who favor humanitarian or more kind of welcoming policies, right? And so, given all these dynamics, it makes sense that in the immigration system change tends to occur incrementally, you know,

05:26 - whether it's via a small rulemaking change or executive action. And oftentimes these incremental changes are somewhat hidden from the public eye. Incrementalism is often framed as an inevitable approach, right? To immigration policymaking. But there are some costs and challenges involved, and these are often surfaced less frequently. It's almost a reflexive move, right?

05:50 - To exclude broader reform proposals in the immigration space. And folks might argue that well, they're too Politically controversial and they're not achievable. or maybe that folks who are within the immigrants rights movement, some of the actors simply don't have the bandwidth to conceive of and work towards entirely new systems, right? but this default, this tendency to default to incrementalism does have costs.

06:19 - One is that I believe that it will generate, and it does generate tensions between the community-based actors in the immigrants rights field, and others, right? So, let me be more specific. Over many decades now, immigrants and their allies have been organizing, and through this process, members of affected communities have been articulating what their visions are for reform.

06:40 - And many of their visions are transformative in nature, right? For example, including the abolition of ice, or stopping all deportations, for example. yet when we focus on incrementalism, these proposals are quickly labeled as unrealistic, and instead they get watered down. And over time, this kind of reflexive rejection of broader scale change can create divisions between different segments of the movement.

07:09 - I'd also argue that incrementalism reinforces narratives that privilege, good or deserving immigrants, right? A lot of incrementalist policymaking, those who benefit from that are the immigrants who are viewed as morally blameless, right? This includes DACA beneficiaries, young people, crime victims, and others who the law and policy frame is vulnerable or needing protection. And by rewarding these subsets of the community, incrementalism, I would argue whether it's intentional

07:41 - or not, is creating a division between good and quote unquote bad immigrants, right? And also fueling a politics of respectability. and also interestingly, a lot of the affirmative incremental changes that we've seen in recent years, especially under the Biden administration, involves granting individuals authorization to work, which while important, tends to limit the role of non-citizens simply to economic actors, right?

08:10 - Not to broader members of the polity. and in some ways it ignores the fact that non-citizens of the United States provide all other kinds of contributions, political, social, cultural right, engagement with civic organizations, et cetera, right? But instead frames their role as an economic one. If we apply the lenses of critical legal theory, we can see that incrementalism in the US immigrants rights space tends to serve the interests of more powerful established entities.

08:43 - So I'll be more specific. We know that a fundamental tenet of critical legal theory is that the law perpetuates hierarchies, often racial hierarchies and the law can undergird systems of social control, right? And we see, for example, how laws have created systems of tiered personhood historically, right? Leaving communities of color, often non-citizens, in a type of second class status, right? And so if we use this lens of critical theory

09:14 - and we apply it to incrementalism in the immigration space, we can see how incrementalism is reinforcing this kind of circumscribed subordinated role for non-citizens, right? lawmakers, as I said, will emphasize the role of non-citizens in the economy, putting them to work, right, of extracting the economic value from them, but at the same time failing to acknowledge their full personhood and their broader importance to society. and by limiting, you know, these changes

09:46 - to just giving individuals work authorization or work permits, it often means that non-citizens don't have a pathway to permanent legal status, including citizenship. And by blocking access to citizenship, that's blocking access to greater political power, right? And reinforcing existing, power relationships, in, in the country. And it's also interesting to reflect on whether dynamics within the immigrants rights movement itself are,

10:16 - part of this subject to the same critique, whether they should be questioned, right? By calling for only modest change, for example, might it be that kind of established insider organizations that depend on the government for access, right? For influence, that that's a way for them to remain on good terms with White House. So I think those are key critical questions that we need to, examine in the public policy and legal literature. This idea or theory of path dependence, is used

10:49 - to explain how choices that are made in the past, right? A series of past choices can lead to a kind of institutional inertia, which then stands in the way of making significant reforms. So stated more simply, right? Once, let's say an administrative agency has been operating along a particular path, the costs of switching to a new approach become too great. And this theory or this concept comes from economics, right? So in the past, scholars wanted to understand why it was

11:19 - that market competitors, right? New competition failed, to lead consumers or to the market to adopt new, more efficient technology. And they, they basically observed that some of the older decisions made, some of the older investments in particular approaches or technologies were too difficult to reverse. and as a result, the industry was locked into systems that were suboptimal. One classic example of this, of path dependence is the

11:49 - keyboard that we use for English language, typing the word keyboard, q W-E-R-T-Y, keyboard. And many people have done research and say, actually, there's much more efficient keyboard models. But because it was put into place and we're essentially locked into it, it's too difficult to undo that, right? So if we apply this now to immigration agencies, we can easily imagine how the agencies who've been operating

12:12 - under the same basic statutory structure for decades, they've made budget decisions, personnel decisions, that are difficult to undo, right? especially because in the immigration system, it's such a large system, so much embedded bureaucracy, they've invested so much money into it, the operational structure that that's difficult to unravel. And it makes sense, right? That government actors would be resistant, right?

12:39 - To change systems and to upend them. 'cause it's much simpler to keep things the way that they are. And similarly, even advocates, right? Who are on the outside might find it easier to operate within systems that they're already familiar with. Path dependence is part of how law and legal institutions become vehicles for entrenching the status quo instead of

13:03 - promoting truly transformative change. And there are individuals and institutions in the immigrants rights space that benefit from the current structure, right? For them, it's convenient to default to path dependence because it preserved the status quo. For example, in the immigration law space, apart from the government institutions that might benefit from path dependence, there may be insiders, right?

13:28 - Who are very knowledgeable about the immigration system, who have a long institutional memory. They know the system and how it works. They know this entrenched, longstanding system backwards and forwards. And so path dependence operates to their advantage. And conversely, there are individuals who may be newer to the immigrants rights movement, right? People maybe who are brought into the movement through organizing.

13:52 - They may be unfamiliar with some of the past efforts. And as a result, when we're engaging in policy conversations, it's easily easy for those folks to become sidelined. And that's problematic because these outsider perspectives and fresh perspectives are needed for us to have a meaningful critique of the system. It, it is also critical to recognize that incrementalism and path dependence are not independent forces, but they mutually reinforce one another, right?

14:25 - So the path dependence that we see in the US immigration system, it fuels incrementalism, right? When there is this kind of institutional inertia of path dependence, the changes that politicians and mainstream advocacy organizations propose, it's likely to be simply tweaks to the existing system, right? this might be an increase in number of visas or extending a period of time for particular benefits, et cetera.

14:53 - and then conversely, incrementalism itself reinforces path dependence. And so when advocates are thinking about larger scale change, right? Or even any kind of change, often incremental change, right? They will try to assimilate their proposals within an existing system, and framework, right? And so, in another way of saying that is that incrementalism and path dependence work together right to disincentivize fundamental change in

15:21 - the US immigration system. I believe that law clinics are very well positioned to help address incrementalism and path dependence in the immigration space. And to achieve more radical transformative change, law clinics are already active in the space. They're involved in litigation and advocacy around immigration, and they're recognized as players, right in the eyes of the government advocates

15:43 - and also members of the community, right? And they also, interestingly, offer a very unique mix of substantive expertise and institutional legitimacy, right? So they have this kind of insider outsider perspective, which I believe though will allow law clinics to credibly advance, change and to address the challenges in the system. and it's important to recognize that clinics have adopted different models.

16:08 - Everything from movement lowering approaches to individual legal services, delivery to hybrid approaches. And this kind of broad range of experience aligns well with what needs to be done, to make these changes happen. Now, as it relates to overcoming the entrenched challenges, in my view, the path forward is for immigration clinics to work collaboratively with stakeholders from effective communi affected communities, and intentionally and transparently set goals

16:39 - for transformative change within US immigration law. So the idea to be more specific is to name an ambitious goal for their work. And it might be a goal for a semester, a full academic year, or even longer term. So this might exam, for example, involve creating a pathway for non-citizens to access public benefits. Or another example one that we're pursuing in my clinic is the project of decriminalizing, the act of entering the United States unlawfully.

17:10 - And so, once this goal has been identified, then the clinic would work towards that goal gradually and would communicate its goal publicly. And even that mere public announcement would signal a move away from a move away from incrementalism and path dependence. Now, let's be clear that setting the goal may not always be a simple task, right? The c the clinic will probably need

17:34 - to communicate thoughtfully with members of the affected immigrant communities. even thinking about who are appropriate interlocutors from the community can be kind of A complex question. But the goal overall is to normalize radical transformative change by setting these goals. because, you know, when community member,

17:59 - community members push for these kinds of changes, often as I've stated, their ideas are dismissed. They're sitting as unrealistic. But clinics have the power to move these ideas, which are often seen as peripheral to more of the center of the conversation. And again, their institutional legitimacy and the gravitas that they bring can really help shift the terrain of the discourse. Clinics can also work collaboratively, right?

18:26 - Different school clinics can work together either by pursuing the same goal in different geographical realms, or it may be that they might leverage their respective strengths around advocacy or litigation to tackle the same challenge through different approaches. Now, as it relates to the content of the clinic seminar, I believe that there are a couple of changes that clinics can make to educate students about incrementalism

18:51 - and path dependence, but also to give them the skills and knowledge that they need to engage in larger scale change making. For example, clinics can engage students in dialogue about the conditions that permit transformative change by looking at case studies from US legal history, and also looking at theories from the social sciences that explain how transformative change can occur. I think it's also important for clinics to open students creative minds and engage them

19:21 - and teach them how to engage in creative solution generation and problem solving. You know, it's important for lawyers, of course, to understand goals and to identify strategies. But oftentimes once we get to the solution generation phase, lawyers are constrained in their creative thinking. So opening up the creative thinking possibilities is critical. And also integrating critical perspectives, right? Having students reflect on

19:51 - how conventional liberal law reform efforts, these are approaches which tend to embrace incrementalism and path dependence, really fail to support vulnerable communities. They fail really to address some of the entrenched power differentials. and so having frank conversations by applying these critical lenses are gonna be important for students to understand the circumstances that they're up against.

20:19 - And altogether, by implementing these changes, will provide students with a more refined vision of what the next generation of immigrants rights lawyers need to be equipped to handle. In general, you know, the movement for immigrants rights in the United States has spent decades agitating for changes to the law. but most of the proposals that we've seen really haven't addressed some of the fundamental structural changes that we need to reform the

20:46 - System. And instead, incrementalism and path dependence really have created this dynamic where kind of modest changes have become the norm. And I do think that law clinics are very well positioned to challenge this dynamic. They can work in collaboration with affected communities and really changed the discourse so that we're not reflexively rejecting kind of broader scale change, but instead using our training

21:12 - and creativity to think about ways of re-imagining the US immigration system. And I'll be clear that although this research that I've done has focused on the US immigration system, it can equally apply to other areas of law. And I encourage others in other disciplines to think about whether these same critiques might apply to their areas of law. But at the same time, we need to be honest that these kinds

21:38 - of systemic changes are hard. They're difficult. They, in many cases may be unlikely to succeed. And even if we don't see the fruits of our labors and our own professional careers, it's worth planting the seeds so that over time these changes can take root and hopefully flourish in the future. I.

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