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Politicians seek to move policy in their preferred ideological direction and believe that elections give them a mandate to govern (Azari 2014). But that hardly means voters will reward them. Consider research showing that public support for policy change moves “thermostatically” against the direction of policymaking, shifting leftward under Republican presidents making conservative policy moves and rightward under Democratic presidents making liberal policy moves (Wlezien 1995; 2004; Erikson, et al 2002). These shifts lead voters to turn against the party of ambitious presidents that overshoot public demand for policy change (Erikson, et al 2002; Wlezien 2017). In presidential elections, the further policy moves rightward or leftward, the more relative preferences move in the opposite direction and the worse the candidate of the incumbent party does (also see Bolstad 2012), explaining about half of the cost of ruling effect (Wlezien 2017).

Policymaking may have similar consequences for Congressional elections. Public judgments of Congress respond to congressional lawmaking, as voters use policy output to judge the ideological distance between themselves and Congress (Algara 2021). Voters tend to move against major laws passed by Congress as they learn about details (and infighting) from media coverage (Atkinson 2017). Major electoral losses for the majority party in Congress, such as in the 2010 election, are the product of voters punishing legislators for supporting policies that demonstrate they are ideologically distant from voters (Nyhan et al. 2012). All of these findings suggest that parties may suffer from moving policy too far in their preferred direction. State-level evidence also finds that voters counterbalance parties that succeed in legislating major policy victories (Pacheco 2013).

Inwood Standard” Indiana Law Journal, Iss. 2, Article 9, https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11200&context=ilj //DH

But the Tiffany standard is more than just Inwood for services. In addition to what it takes from Inwood, Tiffany creates a more defined and practical gray area within which courts can apply the knowledge requirement.155 Importantly, the Tiffany standard demands more than general knowledge but less than specific knowledge.156 It also leaves open alternative knowledge theories, such as willful blindness. The Second Circuit stated: "For contributory trademark infringement liability to lie, a service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods. Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary."157 This holding keeps with Inwood's narrow standard but also aligns with the Supreme Court's subsequent interpretations of Inwood in other cases.158 It rightly rejects general knowledge. If general knowledge were enough, online service providers would constantly be embroiled in contributory infringement actions merely because of their business model. In Tiffany, eBay conceded that it knew generally that there were counterfeit Tiffany goods on its site.159 With a case so easy to prove—all a plaintiff would need to show is that counterfeiting occurred somewhere on the site without having to provide an example—online service providers would be subject to witch hunts for damages simply because direct infringers chose the provider's site as a sales platform. Moreover, "some contemporary knowledge" is not as narrow as specific knowledge.160 This is a kinder standard to the plaintiff, as it is not as stringent and leaves open the window of circumstantial evidence. Additionally, contemporary knowledge ensures that the online service provider is not being sued merely for its business model, but instead because there were genuine infringing acts occurring that the provider knew of and should have stopped.

In the fight for the ideas of individual liberty and limited government, we often, and rightfully, argue about legislation. But while we go back and forth on the initiation or the repeal of laws and the regulations that surround them, we tend to forget to think about their enforcement. You could, arguably, have the most repressive laws on the books without actually enforcing them. Enforcement Is How We Evaluate Seriousness We evaluate the seriousness of the law in front of us because we can measure the real-life consequences. We've all seen these trendy lists of "the most ridiculous bans", and how they really, really, really, really, really, reaaaalllly fill the internet. Some of them are so odd that we often tend to scrub it off or engage in irrelevant debates over family dinner if these weren't all made up in the first place. However, would we really be treating these lists with the same degree of humor if Oklahoma would seriously enforce a ban on making ugly faces at dogs, if Alabama was raiding homes to find sex toys, or if Austria were to jail people for kissing on a train? Hardly so. We evaluate the seriousness of the legislation that is in front of us, not because it is on the books but because we can actually measure the real-life consequences if we happen to break them. We even do this with laws that are clearly enforced very seriously, like the repression against speeding, driving under the influence, or drinking in public (depending on the country and city). We break the law anyway because we estimate our chances of being caught to be lower than the pleasure or utility we derive from breaking them. This has shown to be particularly true for drugs, where even people who are neither poor nor in the general category of those who risk problems with the law break the law because they believe that they won't get caught. The Law of the Land... That You're In The EU is an interesting case study on very selective enforcement. European Union directives are legislative acts that member states have to translate into national rules, but the way they achieve that is up to them. This leads to situations in which the Greek smoking ban is not enforced at all, while the French prohibition on smoking indoors in public places can make bar or club owners lose their licenses. "The law of the land" becomes "the law of the land in which you happen to be right now". All too often, politicians talk about bans on products, services, or behaviors as if such a decision will make the act disappear altogether. They don't account for economic relevance or desires of the consumer to acquire a certain product or service. If there were only a handful of rules that you had to follow, law enforcement would be consequential yet the multiplication of rules has given the executor the power of selectively enforcing the rules that it likes. In fact, an unenforced law isn't a law to start with. No Enforcement? No Problem. While large parts of Europe stringently enforce rules regarding the prohibition of drugs, countries such as Portugal and the Czech Republic have taken a complete laissez-faire attitude on the topic. Portugal decriminalized the use of all drugs as early as 2001, with amazing results: "Fifteen years later plentiful data tell a drastically different story from what many predicted. Drug use among 15- to 24-year-olds has decreased dramatically and drug-induced deaths dropped from 80 in 2001 to 16 in 2012. Before 2001 Portugal confined around 100,000 drug users. Within the first 10 years of the policy’s adoption, this number halved. Today Portugal boasts one of the lowest drug-usage rates in all of Europe." A number of other countries, such as Denmark, Belgium, or Luxembourg are far from going the whole distance on hard drugs but have considerably softened the repression against the use of marijuana. The pattern here as well is: the less you repress the substance, the less it is a big deal. Despite drug-related health concerns being real and problematic, actual issues arise through the very violent enforcement of these rules. When special forces bust through people’s doors, and when police militarize in order to step up to violent gangs that profit off of prohibition, the violence of the state becomes truly apparent. When the laws become so numerous that police chiefs can become selective on the 'which' and 'how' of their enforcement, then we have reached the illiberal state. The inherent question of the problematic nature of the state is not that of the law, but how it is enforced.

The use of parole by the Executive acting sua sponte in such an expansive and aggressive fashion is hardly unique in post-World War II American history. The rescue of Hungarian refugees after the abortive 1956 uprising or the Vietnamese refugees at various points of that conflict come readily to mind. While these were dramatic examples of international crises, the immigration situation in America today, though more mundane, is no less of a humanitarian emergency with human costs that are every bit as high and damage to the national interest no less long lasting. Even those who are in removal proceedings or have already been ordered removed, and are beneficiaries of approved petitions, also need not wait until eternity for Congress to come to the rescue. The government has always had the ability to institute Deferred Action, which is a discretionary act not to prosecute or to deport a particular alien.16 This safety valve will fix our broken system of future flows by allowing those who could not qualify for any other visa option to have new hope and unimagined choices. There are those who argue that only Congress can make immigration policy in this fundamental way and this reservation is both serious and worthy of deep respect. Yet, we have a dysfunctional Congress that is or appears to be incapable or unwilling to reach consensus on immigration. Do we as a society simply throw up our hands and do nothing, allowing a bad situation to become worse or do we use this challenge as an opportunity to create something better through temporary and targeted executive action that Congress can either overturn or accept at a later date? There are several examples of administrative action to create new immigration policy in the face of Congressional inaction in recent years. In the STEM OPT regulation, the USCIS openly admitted that granting an additional 17 months of employment authorization was a regulatory response to an inadequate H1B quota. When they limited the validity of a labor certification of 180 days, the US Department of Labor did so on their own without the fig leaf of legislative authorization.17 Remember when the AAO handed down the decision in New York State Department of Transportation,18 thus effectively repealing the national interest waiver statute for several years until the relaxation came?19 Finally, under the Cuban Adjustment Act of 1996, even if the Cuban national entered without inspection, the former INS Commissioner Doris Meissner clarified that the Service could use its authority under the humanitarian and significant public benefit criteria in Section 212(d)(5) to parole Cubans who had entered without inspection under the fiction that the individual would surrender to the government, which in turn would release or parole him or her, and thus render them eligible for adjustment of status under the CAA.20 Did Congress tell them they could do that? All of these actions, and many others not singled out, had profound effect but depended solely upon the imaginative exercise of executive authority yet consonant with a proper respect for separation of powers. So we can do so here. Those who do not think so ignore at their own peril and ours the fundamental distinction between making policy, which only Congress can do, and implementing tactical adjustments, which the Executive is uniquely suited to do. This is why only Congress can create a legal status while the Attorney General can authorize a period of stay. This is why only Congress can enlarge the EB quota but the Executive can allow adjustment applications without a quota expansion so long as final approval is not forthcoming. This is why only Congress sets visa limits while the Executive can grant parole. This is why only Congress sets work visa law but the Executive can issue EADs. To suggest that Congress must act in both a long and short term context is to ignore the historic and legitimate differences between the two branches of government. If Congress wants to overturn such executive action, it can do so. Likewise, if it supports the President, it can stay its hand. Either way, Congress is expressing its will, whether through positive action in the form of legislation or negative action in the form of silent acquiescence. Both action and its absence are authentic manifestations of congressional intent and expressions of congressional authority. In reality, we all know that there are 40 votes in the Senate to uphold such regulatory initiative. Congress will be more than content to allow the President to take the lead and solve what it has manifestly been powerless to solve- how to regulate both past and future migration flows; how to solve the growing unskilled worker backlog; how to ameliorate the gratuitous cruelty of the 3/10 year bars; how to reduce the size of the undocumented population who may already working here and contributing to the exchequer and how to satisfy the hungry manpower needs of employers once the dark cloud of recession lifts without creating a single new immigrant visa. When has so much come from so little? We do not say that CIR can be cast aside for there are many people who will never be the beneficiary of an I-140 or I-130. Ours is a far more modest proposal. We seek only to broaden the debate and widen the national conversation. Now is the time for what Franklin Roosevelt rightly called "persistent, bold experimentation." We must not wait for Congress to act. However important CIR remains, it is not the only way.

The executive branch spends a lot of time not enforcing laws. Congress has illegalized an enormous amount of activity without giving the president the resources to enforce the laws, so the executive has no choice but to make a list of priorities and devote its attention to law violations that, in its opinion, are the most serious. Thus, the IRS doesn’t audit paupers very often. The Justice Department ignores a lot of anticompetitive behavior that might raise prices a bit but not much. The DEA focuses on criminal syndicates rather than ordinary drug users, although both violate federal law. And so on.

Nearly all of this non-enforcement takes place with implicit congressional acquiescence; once in a while, Congress complains because the president’s priorities are not the same as its own. But the president has no obligation to listen to these complaints. The Constitution gave him executive power while preventing Congress from compelling the president to act except by issuing the extreme and usually non-credible threat of impeachment. This is the separation of powers. People like Douthat wrongly think that separation of powers means that the president must do what Congress decides. That’s not the principle of separation of powers; that’s the principle of legislative supremacy, embodied in parliamentary systems like Britain’s, which America's founders rejected.

The Tahirih Justice Center is the largest national policy and direct services organization in the United States that focuses on assisting immigrant women and girls who face gender-based violence. The women Tahirih serves are often particularly vulnerable to horrific crimes such as human trafficking, domestic abuse, and sexual assault. Laws such as the Violence Against Women Act (VAWA) and the Trafficking Victims Protection Act (TVPA) are specifically intended to encourage survivors to call 911 without fear of deportation. These laws recognize that incentivizing survivors to help police get dangerous criminals off the streets is sound policy and results in safer communities for all of us. The TVPA and VAWA enjoy longstanding, broad bipartisan support. Consistent with these laws, so-called “sanctuary” policies promote immigrants’ trust of local police, while sending a clear message to criminals that they cannot exploit victims’ fears of deportation with impunity.  When Immigrant Communities Trust Local Police, We All Benefit from Enhanced Public Safety It is well-documented that domestic abusers and traffickers routinely manipulate their victims by threatening to have them deported if they call the police. A survivor might therefore face the impossible “choice” of risking separation from her young children and forfeiting custody to her abuser upon deportation, or continuing to endure life-threatening violence at home. Abusers also commonly hold proof of their victims’ lawful immigration status hostage in order to keep them silent. Citing immigrants’ growing mistrust of police, the Los Angeles Police Department reports a 25% and 10% decrease in reporting of sexual assault and domestic violence among Latinos, respectively, since the beginning of 2017. Last month, the Denver City Attorney’s Office reported that four immigrant women abandoned pending domestic violence cases due to a fear of deportation if they appeared in court. Likewise, the Houston Police Department revealed a 42.8% drop in reports of rape by Latinos compared to the same period last year, and reporting of other violent crimes decreased by 13%. When local police and federal immigration functions are indistinguishable to immigrants, police become the unwitting accomplices of abusers and traffickers in creating a climate of fear for the most vulnerable among us. Abusers and traffickers are often recidivists and engage in other criminal activity as well. Law enforcement officers rely on victims and witnesses for critical, firsthand information to help solve crimes that afflict all members of our communities. Therefore, we are all less safe when immigrants are too afraid to come forward or are swiftly deported and unable to provide eyewitness testimony. Punishing Localities that Incentivize Immigrants to Report Crime Endangers Public Safety Efforts to punish so-called “sanctuary cities” force them into a false “choice;” either lose essential funding, or discourage victims and witnesses from reporting crime. The funds at issue are critical to protecting all members of the public from gun violence, human trafficking, gang violence, and other criminal activity. As a result, the Fraternal Order of Police, the largest police union in the United States, strongly opposes such punitive measures. Some proposals would force localities to detain individuals for civil immigration offenses at the request of the federal government, even if doing so might violate the 4th amendment of the Constitution. This renders police unnecessarily vulnerable to legal liability and unwisely diverts valuable resources away from crime fighting.  Well-Intended Exceptions for Victims and Witnesses Fall Short and Fail to Preserve Community Trust Federal and state proposals that exempt crime victims and witnesses from immigration status inquiries by police are commendable, yet they unintentionally fall short of meaningfully protecting both survivors and the public. Specific exemptions within broad punitive measures are also insufficient to quell the sweeping, chilling effect that punitive policies have on entire immigrant communities. Despite outreach efforts to immigrant communities, victims may remain afraid to come forward. Some exemptions miss the mark by protecting a victim only if she encounters police for the exclusive purpose of reporting a crime. Victims may encounter police in a variety of contexts including car-seat safety checks and community outreach or school education programs, and they should not fear participating in such programs. Proposals that limit protection for survivors who are arrested or charged with certain categories of crimes ignore the unique dynamics of domestic violence. Perpetrators routinely retaliate against victims who report violence by fabricating serious criminal allegations against them. This is a deliberate tactic abusers use in part to heighten a victim’s risk of deportation. Tahirih is aware of an example where an abuser planted drugs in his wife’s car and then smashed her tail light to get her pulled over and arrested. In another example, an abuser set fire to his home himself and called the fire department to report that his wife did it. She was arrested and jailed for weeks. A victim may also face charges arising from an act of self-defense or a false counter claim for domestic abuse. Immigration enforcement ultimately remains a federal function. Policies that respect the distinction between federal and local enforcement do not, under any circumstances, single-handedly bar federal prosecution for immigration violations. Rather, these policies support local agencies in prioritizing community trust for the benefit of us all. State and federal efforts to punish so-called “sanctuary” jurisdictions lead to various unintended, dangerous consequences to the detriment of society as a whole. Tahirih urges lawmakers, policymakers, and the public to diligently educate themselves about these consequences when determining whether to support such efforts.

California has just become the first sanctuary state of the 21st century thanks to Gov. Jerry Brown’s (D) signing of Senate Bill 54, which limits state and local police cooperation with federal immigration authorities. This is good news because greater policing of immigrants by local law enforcement, it turns out, has not enhanced public safety and has resulted in significant human costs. The California Values Act (SB 54), prevents local jails from holding releasable inmates — a practice that had given U.S. Immigration and Customs Enforcement (ICE) time to collect them. The bill also places strict limits on ICE transfers, or the practice of notifying ICE when an inmate will be released, while also limiting “joint task forces,” or teams of federal agents and local officers that work together. Even though SB 54 may seem like a radical departure from business as usual, it actually represents a return to previous practices. Historically, immigration enforcement was left to the federal government. But over the past few decades, under both conservative and liberal administrations and through various programs — Secure Communities, Criminal Alien Program and 287g — local officers have increasingly been asked to police immigration in new and complex ways. Today, this devolution of immigration enforcement is reaching its apex thanks to executive orders signed by President Trump. California’s state sanctuary bill is a conscious effort to push back. SB 54 is backed by the data; devolution policies do not enhance public safety, as originally thought. One study of Secure Communities found the program was associated with a less than 1 percent reduction in murder, rape, larceny and vehicle theft. Another reports it has had “no observable effect on the overall crime rate.” What explains these findings? Devolution’s foundational assumptions are flawed. Contrary to popular belief, immigrants are not more crime-prone than their native-born counterparts and immigration to an area does not cause crime to rise, as one of us recently explained and demonstrated with a newly published meta-analysis of the literature. Moreover, devolution does not target the right offenders. The pettiest of offenders constitute the bulk of those identified. The study mentioned earlier found that the most radical expansion of “criminal aliens” removed between 2004 and 2012 was for, of all things, traffic offenses. Devolution policies aren’t just ineffective: they may do more harm than good. Police-community relations break down. Enforcing immigration law counteracts efforts to engage more closely with the community. Police need the trust and cooperation of residents, including immigrants, to do their job effectively, and they rely on the willingness of victims and bystanders to cooperate with investigations. Law enforcement leaders, including the LAPD’s Chief Beck, worry that devolution is eroding decades of progress. Worse relations with police may cause crime to increase. Immigrants may choose not to report crime or victimization to law enforcement authorities because they fear the police — exacerbating victim’s vulnerability and emboldening criminals. And, there are potential abuses. Officers who prefer more aggressive immigration enforcement might make arrests for offenses that otherwise would be too petty, in an attempt to screen a person through Homeland Security databases. This could lead to racial profiling, and more lawsuits against police departments. Finally, devolution policies have significant human costs. The individual being deported is not the only one affected: innocent family members, especially children, remain behind and become victims. The Urban Institute assessed the impact of immigration workplace raids on children and families. The results are striking. The children left behind bear the psycholgical trauma of having a parent deported and face the prospect of foster care. California’s stance today echoes earlier times. Newly released digital archives at the University of California, Irvine show that California was home to a critical mass of cities declaring themselves sanctuaries for Central American refugees in the 1980s, when political violence caused many to flee. Former L.A. Mayor Tom Bradley said that even though they didn’t legally reside in L.A., “in too many cases, they are also living lives of poverty, fear and desperation. And the city has an obligation to provide all of its inhabitants with fire, police and other essential services.” The politics of sanctuary still involve refugees from war-torn countries but today also involve undocumented immigrants simply seeking a better life. Yet the obligation Mayor Bradley spoke of has not changed, and California has not forgotten. With California’s sanctuary state bill now signed into law, it carries with it a tradition of both humanity and good governance.

II. “SANCTUARY” POLICIES IN AN ERA OF MASS DEPORTATION Part I described the rise of crimmigration and introduced the major components of Trump’s deportation apparatus—CAP, administrative warrants, 287(g), Secure Communities, and other joint operations.166 Collectively, these programs generate significant pressure on localities to make their law enforcement resources available for federal immigration enforcement. In Part II, we turn to an analysis of the policies of “sanctuary” jurisdictions in the United States. Specifically, we focus on how these policies function to protect community members and limit the involvement of local government institutions in furthering the Trump administration’s immigration agenda.167 In conducting our analysis, we collected a set of over 500 sanctuary policies spanning nearly four decades. To aid other researchers, we have made full text versions of the all of the laws and policies we collected available in an accompanying online library.168 Our library of sanctuary policies focuses on those policies that explicitly address the degree to which local criminal justice systems and actors interact with federal immigration enforcement.169 We relied on a range of techniques to identify and collect our set of sanctuary policies for analysis. We identified many policies by scouring academic sources,170 issue papers,171 news articles,172 and online collections of policies accumulated by advocacy groups across the political spectrum.173 We also obtained copies of the policies through public records requests, communications with practitioners, and internet and other online research.174 Because our authors have been engaged in scholarship, research, and advocacy relating to sanctuary policies, many policies (particularly those enacted in the last decade) were already known to us. Although we cannot claim to have surveyed every sanctuary policy, we believe our collection of policies provides the largest single collection available of the various policies that have been enacted since the 1980s. Based on our review of the collected policies, we identified five principle types of legal and policy initiatives adopted by jurisdictions. These five types, which we discuss in Part II, are: (1) barring investigations into immigration violations; (2) limiting compliance with ICE detainers and administrative warrants; (3) limiting ICE’s access to local jails; (4) limiting disclosure of sensitive information; and (5) declining to participate in joint operations.175 We introduce each category of policy, drawing on examplesof state laws, municipal ordinances and resolutions, and internal sheriff and police regulations and policies.176 The Trump presidency has driven localities to clarify their role in immigration enforcement. Local officials must consider how best to respond to the divisive racial tenor of the Trump administration’s immigration policy pronouncements within their communities. But whereas some jurisdictions have newly embraced the sanctuary policies we discuss in this Part since the election, others have had such policies in place for decades.177 In addition, some policies, such as detainer policies, developed in response to developments in federal law or policy that pre-date the Trump presidency. Regardless of when these policies were enacted, they share some common characteristics. For example, the Trump administration has sought to bring sanctuary jurisdictions to heel by claiming that their policies violate 8 U.S.C. § 1373,178 a provision of the federal code that prohibits localities from preventing their employees from exchanging citizenship or immigration status information of individuals with federal officials.179 But, as our description of the policies in this Part makes clear, many disentanglement policies do not restrict the sharing of information about citizenship or immigration status and therefore cannot run afoul of § 1373.180 Under federal law, localities have discretion to decide whether they will engage in local policing activity that may result in deportation. A. Barring Investigation of Civil and Criminal Immigration Violations Perhaps the most common type of sanctuary policy is a requirement that police not investigate civil or criminal immigration violations.181 These types of internal policies, which have been called “don’t police” policies,182 are important given that local law enforcement officers can act as deportation “gatekeepers” when they arrest noncitizens.183 Such policies generally prevent law enforcement from asking questions about immigration status or otherwise enforcing civil immigration law violations.184 Some “don’t police” policies go further and prevent police from investigating criminal immigration law violations.185 An early example of a “don’t police” policy is the LAPD’s “Special Order Number 40,” issued by Chief Daryl Gates in 1979.186 Special Order 40 prohibits officers from “initiat[ing] police action with the objective of discovering the alien status of a person.”187 In addition, it prevents officers from arresting or booking persons for illegal entry into the United States under 8 U.S.C. § 1325.188 Similarly, in 1989, San Francisco adopted a “City and County of Refuge” ordinance that provides that state and local officials “have no duty . . . to enforce the civil aspects of the federal immigration laws.”189 More recently, in 2008, the City of Hartford, Connecticut enacted an ordinance restricting any employee from “inquir[ing] about . . . confidential information,” including immigration status, except when “necessary to the provision of the city service in question.”190 Some states have also restricted their police agencies from enforcing civil immigration law. In 1987, Oregon passed a state law prohibiting law enforcement throughout the state, including political subdivisions of the state, from enforcing civil immigration law.191 In 2014 the State of Vermont passed a law requiring that all local law enforcement agencies adopt a “model fair and impartial policing policy” that prohibits policing civil immigration violations.192 Among other restrictions, the model policy adopted in 2017 specifies that local law enforcement in Vermont may not: (1) ask for a “person’s civil immigration status unless it is necessary to the ongoing investigation of a criminal offense”; (2) use suspicion of a person’s undocumented status as a basis for initiating contact, detaining, or arresting that person; or (3) attempt “to enforce federal criminal law” where the only violation is “unauthorized presence in the country[,] . . . a civil infraction.”193 And, in 2017, the California Values Act was enacted, similarly prohibiting local law enforcement from expending resources “to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes . . . .”194 B. Limiting Compliance with Immigration Detainers and Administrative Warrants Federal pressure to participate in immigration enforcement has prompted a second type of local disentanglement policy: limiting compliance with immigration detainers and administrative immigration warrants. Given the Secure Communities program’s reliance on immigration detainers, declining these federal requests has become a prominent way by which localities are expressing resistance to the program. Practices limiting detainer compliance are found in a range of local ordinances, state laws, and internal policing directives. Early examples of such policies typically stopped short of denying all requests to extend detention for deportation purposes. For example, the California and Connecticut TRUST Acts mandated that localities decline detainers unless issued against persons with certain criminal charges or convictions.195 Similarly, local policies in Cook County, Illinois and New York City included numerous criminal history-based exceptions to the general rule of not complying with immigration detainers.196 More recent policies now provide that jurisdictions not honor any detainer unless it is accompanied by a judicial warrant or other documentation establishing probable cause of a crime. For example, the Alameda County Sheriff’s Office has announced that it will decline all immigration detainers from ICE, distinguishing between “an arrest warrant signed by a judge, and an immigration detainer signed by an ICE Agent.”197 The weight of judicial decisions now firmly establishes that the federal government cannot require jurisdictions to comply with detainers.198 Courts have also made clear that holding someone on a detainer amounts to a new arrest that must comply with the Constitution.199 In addition, many jurisdictions have implemented policies prohibiting detention based not only on immigration detainers but also on administrative immigration warrants for arrest. The Princeton Police Department, for example, has a General Order prohibiting police from “arrest[ing] or otherwise detain[ing] persons” based on an ICE administrative warrant contained in the NCIC database.200 An administrative arrest warrant is a document issued by an ICE official stating that the officer has determined there is probable cause to believe that an individual is subject to removal.201 Unlike criminal arrest warrants, administrative arrest warrants are neither issued by a judge nor based on sworn testimony, and the statute and regulation that mention these warrants identify no standard of proof for their issuance.202 Until March 2017, DHS did not even require ICE officials to obtain an administrative warrant before issuing a detainer.203 The lack of judicial and constitutional safeguards for administrative arrest warrants arguably render the federal government’s reliance on them constitutionally suspect.204 But even if they properly authorize ICE to conduct an arrest, they do not necessarily authorize local authorities to do so.205 C. Refusing ICE Access to Jails Another way in which local jurisdictions have protected immigrants is by declining to let ICE agents enter their local jails. Indeed, the CAP program introduced in Part I relied on local jail access to interview and deport inmates held in local custody.206 Information obtained from in-person interviews of inmates is also significant for the Secure Communities program, as it supplements data available through the fingerprint-sharing function. Limiting ICE access to jails was a critical part of New York City’s effort to disentangle local law enforcement from ICE. On February 14, 2015, immigration authorities were shut out of the New York City jail at Riker’s Island pursuant to New York City Local Law 58, which prohibited federal officials from “maintain[ing] an office or quarters on land over which the [Department of Corrections] exercises jurisdiction, for the purpose of investigating possible violations of civil immigration law . . . .”207 Similar measures are now in place in other jurisdictions. For example, in Cook County, Illinois and Richmond, California ICE agents are not allowed to enter the local jails without a criminal warrant or other legitimate law enforcement purpose other than civil immigration enforcement.208 In the District of Columbia, local law enforcement may not provide ICE “an office, booth, or any facility or equipment for a generalized search of or inquiry about inmates . . . .”209 Santa Clara, California will not allow ICE agents to enter their county jails for “investigative interviews or other purposes . . . .”210 And, although not an absolute bar to jail access, some policies have attempted to create a procedural firewall between noncitizens and federal immigration authorities by requiring a Miranda-type warning in the event ICE seeks to interview inmates. As one example, the California TRUTH Act requires inmates be provided with a “written consent form” and be given the opportunity to decline an ICE interview or have a representative present before proceeding.211 These sorts of protections help fill a gap created by federal court decisions extending the booking exception for Miranda to questioning by ICE agents—even if the information elicited is inculpatory— so long as there is an administrative purpose to the questioning.212 D. Limiting Disclosure of Sensitive Information Many sanctuary jurisdictions have sought to impose limits on the unnecessary sharing of sensitive information about their residents. Sensitive information may include citizenship and immigration status as well as other information that residents would be fearful of being disclosed to third parties.213 Two types of limitations on the sharing of sensitive information appear in the local policies we studied. First, some jurisdictions limit the sharing of confidential information about residents by city or county officials, including law enforcement, to encourage residents to feel safer when accessing local services or interacting with local government authorities. These limitations can encompass information about citizenship or immigration status, but often are not limited to such.214 Hartford’s restriction on disclosure of “confidential information,” for example, encompasses an individual’s sexual orientation, status as a victim of domestic violence or sexual assault, status as a crime witness, receipt of public assistance, as well as immigration status and “all information contained in any individual’s income tax records.”215 Los Angeles takes a functional approach, protecting personally identifying information, described as information the City possess which could allow someone to determine citizenship or immigration status.216 Second, local jurisdictions have established policies declining to provide information in response to requests by ICE about the release dates of inmates held in local jails.217 By not notifying immigration authorities about the time and place of an individual’s release from custody, these jurisdictions are refusing to facilitate the individual’s arrest by ICE. For example, a 2011 Cook County, Illinois ordinance directed that, without a “criminal warrant” or “legitimate law enforcement purpose . . . not related to the enforcement of immigration laws,” County officials “shall not expend their time responding to ICE inquiries or communicating with ICE regarding individuals’ incarceration status or release dates while on duty.”218 New York City similarly requires a judicial warrant as a requisite to notification of release dates.219 The Trump administration has claimed that policies limiting the exchange of information between local officials and federal immigration officials violate federal law, pointing to 8 U.S.C. § 1373.220 But many of the policies that the administration has criticized on this basis do not limit the sharing of citizenship and immigration status information and thus fall outside the reach of § 1373. This is particularly true of policies that limit notification of release dates of individuals in local custody.221 Furthermore, § 1373 arguably amounts to an unconstitutional intrusion on state sovereignty.222 At a minimum, it must be construed narrowly to avoid unduly infringing on state sovereignty.223 In City of New York v. United States, the only federal court decision to directly address § 1373’s constitutionality, the Second Circuit rejected New York City’s facial challenge to § 1373 but acknowledged that applying § 1373 to bar “generalized confidentiality policies that are necessary to the performance of legitimate municipal functions” could run afoul of the Tenth Amendment.224 Following the decision, the City Mayor issued precisely the kind of “generalized confidentiality policy” the court suggested would be permissible,225 and as discussed earlier, other jurisdictions have followed suit.226 In addition to the examples discussed above, Santa Ana, California recently passed an ordinance with broad confidentiality protections distinguishable from the problematic policy at issue in City of New York. The Santa Ana City Council decreed that sensitive information would not be disclosed unless required by law, but the ordinance defines “sensitive information” broadly to include: any information that may be considered sensitive or personal by nature, including a person’s status as a victim of domestic abuse or sexual assault; status as a victim or witness to a crime generally; citizenship or immigration status; status as a recipient of public assistance; sexual orientation; biological sex or gender identity; or disability.227 Local confidentiality policies such as Santa Ana’s are particularly important in the Trump era. The Trump administration has abandoned policies previously in place under the Obama administration that allowed certain immigrants to be considered for a favorable exercise of prosecutorial discretion, including victims, witnesses, and those who had experienced violations of their civil rights, employment, or housing rights.228 These and other individuals who have important reasons to interact with local government officials will no longer receive protection from deportation if they end up in the hands of ICE. E. Precluding Participation in Joint Operations with Federal Immigration Enforcement A fifth type of sanctuary policy limits local participation in joint operations with federal immigration officials. Joint operations are collaborative law enforcement efforts in which federal law enforcement relies on local law enforcement to provide boots on the ground. When joint operations target immigrants for deportation, local law officials become participants in the federal government’s deportation efforts. Local law enforcement is under renewed pressure in the Trump era to designate local officers to enforce immigration law through a common type of joint operation, 287(g) agreements.229 Sanctuary jurisdictions have responded by declaring their intent not to participate in this program.230 For example, Seattle’s “Welcoming City” resolution, which was adopted following President Trump’s inauguration, clarifies that the city “will reject any offer from the federal government to enter into a Section 287(g) agreement.”231 In 2012 the town of Amherst, Massachusetts adopted a similar policy that explicitly prohibits 287(g) agreements.232 The New York State Attorney General’s Office has also distributed a “model sanctuary” policy that, among other provisions, provides that local law enforcement “shall not perform the functions of a federal immigration officer or otherwise engage in the enforcement of federal immigration law—whether pursuant to § 1357(g) of Title 8 of the United States Code or under any other law, regulation, or policy.”233 Beyond 287(g) agreements, there are other types of joint operations that may involve immigration enforcement as well, such as when local police team up with HSI’s “National Gang Unit” or the “National Fugitive Operations Team.”234 Some jurisdictions have barred local participation in such joint operations. Often, such policies prohibit local criminal justice agencies from participating in “civil” immigration enforcement,235 but some jurisdictions’ negative experiences with joint operations have pushed them even further. In Oakland, California, for example, one of the nation’s early sanctuary city resolutions called on city employees to refrain from providing assistance or cooperation “relating to the alleged violations of the civil provisions of the immigration laws.”236 In 2007, Oakland reaffirmed its “City of Refuge” status through a resolution condemning the immigration raids taking place under the administration of President George W. Bush.237 The 2007 resolution maintained the same focus on disentangling city officials from civil immigration enforcement while explicitly allowing joint operations “in matters involving criminal activity and the protection of public safety.”238 A resolution passed in the wake of the 2016 presidential election likewise maintained a distinction between civil and criminal enforcement, condemning cooperation with respect to the former but not the latter.239 Six months into the Trump presidency, however, Oakland changed course. The City Council resolved to “immediately” cancel a memorandum of understanding with HSI that allowed local officers to be designated as “U.S. Customs Title 19 Task Force Officers.”240 In support of the resolution canceling the MOU, the council cited the Trump administration’s plans for mass deportation and ICE’s “willing[ness] to lie . . . to their local law enforcement partners (e.g. Santa Cruz Police Department).” The last reference was to a February 2017 joint operation between Santa Cruz officials and HSI.241 Oakland soon determined to go beyond even this step. Although it had been directed to terminate its MOU with HSI, on August 16, 2017, the Oakland Police Department provided traffic control for an HSI raid that resulted in the arrest of members of a Guatamalan family in West Oakland.242 Following a public outcry, in 2018 the City Council reframed Oakland’s policy to eliminate all cooperation with immigration enforcement, whether related to civil or criminal violations.243 Oakland’s Mayor Libby Schaaf also took affirmative steps to warn residents of an impending ICE raid in February 2018.244 Santa Cruz adopted a resolution in 2007, declaring that “to the fullest extent possible by law, the City of Santa Cruz shall not cooperate with ICE and shall prohibit the use of City funds or resources for any Federal immigration enforcement.”245 On the eve of Trump’s inauguration, the city council reaffirmed that no city resources or assistance would be used to aid federal immigration enforcement efforts, and explicitly prohibited local officials from “assisting with or participating in any immigration enforcement operation or joint operation . . . .”246 The City soon learned that would be insufficient when the Santa Cruz Police Department’s joint raid with ICE in February 2017, less than a month after the city council’s resolution, resulted in the deportation of community members with no gang ties.247 This prompted the city council to quickly enact an ordinance

specifically prohibiting such joint operations.248

7.2 Internet/technology as part of the solution Although the internet and other networked technologies have facilitated trafficking, most technologists suggest that technology also be viewed as part of the trafficking solution, typically starting with the premise that the internet and related technologies are widely used and here to stay.196 The primary recurring themes in this regard are provided in the following section. i. Inevitable migration of sex ads? Inevitable migration of advertising from one online site to another is one of the most common reasons cited for not working to shut down online sex advertising, which mingles trafficked people with non-exploited women in prostitution. Because business will simply migrate from one site to another, efforts to attack any one internet platform are seen to be futile. 197 Indeed, after pressure from numerous Attorneys General due to trafficking concerns, craigslist closed its “Adult Services” section both in Canada and the US in 2010, only to have posts selling sex migrate to its “therapeutic services” section as well as other online sites, such as (in Canada) backpage.com, sp411.com, erslist.com, and perb.ca.198 While such migration can easily occur and is often cited, it is not clear whether all ads do, indeed, migrate. A leading classified ads consultancy found that in the two years since craigslist stopped accepting paid advertising from escorts and escort services, other sites have not collectively generated as much revenue as craigslist did from ads selling sex.199 Estimates show a $7.3 million dollar reduction over craigslist’s estimated $44.6 million profits from sex ads in 2010, suggesting some ads did not migrate. 200 Immediately following craigslist’s closure of its adult services section, online prostitution advertising is reported to have fallen by more than 50%, although this number is contested by backpage, that states its “adult, dating and other paid ad content” increased approximately 29% when craigslist shuttered its adult services section. 201 Thus, while migration can and does happen, losing a major online marketplace may at least be a temporary setback to traffickers. ii. Visibility assists law enforcement Some in law enforcement think their job to identify trafficking cases is made easier when traffickers’ crimes are “visible” online and can, thus, be traced. When perpetrators use various communication technologies to share information, advertise victims, and coordinate among themselves, they increase the chances of leaving digital traces that can be followed. 202 Law enforcement officers can thus, more easily track patterns in credit card transactions, mobile phone calls, GPS patterns, plane tickets, and apartment rentals of potential suspects. 203 Forensic examiners can recover digital evidence from computers and other electronic devices. Advertisements and online sales of trafficking victims can also leave digital traces.204 Officers can monitor suspected individual’s activities online or conduct webbased reverse stings by posting decoy advertisements online or responding to real online ads.205 And, for the many law enforcement agencies with limited resources, knowing where traffickers and victims reside online reduces the time and resources required to find victims. Some companies that house ads selling sex, including craigslist and backpage, publically express willingness to work with law enforcement to detect human trafficking cases. Attorneys general and informants report, however, that this willingness has not actually resulted in meaningful action.206 Other sex-advertising sites are less cooperative. There is also substantial skepticism from critics that law enforcement and society can rely upon companies that derive significant profits from the online sex industry to regulate one of the most profitable parts of their industry.207 While technology firms may be well placed to understand their own technology, the profits generated by sex ads may make voluntary monitoring less than thorough for fear of driving away profitable business. iii. Developing anti-trafficking innovations Various technology companies express interest in helping combat human trafficking and are developing technological tools to further this effort, such as data mining and new identification technologies. Some financial institutions are partnering with law enforcement to shut down payment systems in related cases. iv. Data mining Manually sorting through online advertisements is a daunting task that strains resources. Basic data-mining techniques such as automated data collection, natural language processing, and digital mapping allow investigators to respond to potential cases more efficiently. 208 Automated data collection can filter, flag, aggregate, and store online ads that appears to feature underage victims, thus narrowing the pool of online classified ads that must be reviewed by humans. 209 Scientific minds in the Natural Language Group at the University of Southern California’s Information Sciences Institute are exploring computational linguistic and machine-learning methods to develop algorithms designed to detect possible cases involving individuals who demonstrate qualities that place them at particular risk of human trafficking. 210 v. New identification technologies Investigation of sex trafficking often starts with the photos used in the advertisement of sex trafficking victims. Microsoft has developed PhotoDNA and offered for free to law enforcement, to help match photos of human trafficking victims to photos of missing children and locate copies of pornographic images online. In 2009, it donated the technology to those fighting online child pornography. 211 Anti-trafficking organizations use the technology to inform online service providers to remove copies of the photos.212 Facebook is reported to currently employ this technology. Microsoft has also funded research grants in 2012-2013 to study how technology affects human trafficking in the US, specifically in connection with the commercial and sexual exploitation of children, the results of which will be published shortly.213 vi. Global mapping New mapping technology uses location-based information to map the location of individuals mentioned in the online ads, which enables monitoring and tracking of victims and survivors over geographic space.214 In April 2013, internet search giant Google launched the Google Global Human Trafficking Hotline Network, which covers the US, Europe and Asia. Every time the network receives a call, factual data provided by the caller and the caller’s location is logged and analyzed. As the network builds information, it will reveal trafficking locations and patterns, which will be shared with law enforcement through three designated nongovernmental organizations. vii. Public-private partnerships In the related crime of commercial child pornography, the US Treasury Department's Office of Terrorist Financing and Financial Crimes reported in 2011 that commercial child pornography had dropped to "effectively zero" from a multi-billion dollar industry six years earlier. This dramatic change was a result of cooperation with the private sector, which shut down distribution and payment mechanisms for child porn as well as increased enforcement efforts. 215 The Financial Coalition Against Child Pornography was established in 2006 and includes 35 financial and credit companies, such as MasterCard, Visa and American Express. While commercial child pornography has shrunk dramatically as a result of the coalition, the non-commercial distribution of child pornography has reportedly “exploded.”216 LexisNexis, the world’s largest electronic database for legal and public records, received public recognition from the US State Department for helping develop a database of human trafficking social service providers and creating various online resources for attorneys working on human trafficking cases. 217 These types of public-private interface are promising developments if technological advancement is to check rather than augment rates of human trafficking. viii. Public awareness There is also general agreement that the internet and mobile technology can be effectively used to raise public awareness, advocacy and activism by educating the public. Online platforms help anti-trafficking organizations share information and coordinate their efforts. Crowdsourcing, flagging and mapping technologies have been cited as effective means of monitoring social media and advertisement websites for instances of trafficking. 218 Digital mapping, such as that produced by Slavery Map, can record and display instances of trafficking. 219 Technology can therefore play an important role in ensuring that public outrage at this horrendous crime translates into political engagement, resource commitments and, ultimately, accountability.

In order for the Court to provide a remedy in naturalization based equal protection cases, it would need to find a jurisprudential foundation to counter the plenary power doctrine and sanction such a remedy. For citizenship applicants stymied by unconstitutional naturalization provisions, meaningful relief ultimately must come in the form of a grant of citizenship, so the doctrinal foundation would need to support judicial conferral of citizenship. This Note considers two possible doctrinal solutions: indirect or direct conferral of citizenship-the former a byproduct of the Court's striking down an unconstitutional statute and the latter stemming directly from the Court's equitable powers. In the end, only equity can provide a strong enough foundation to support judicial conferral. B. Indirect Conferral of Citizenship If the Court finds that a statute violates the Equal Protection Clause, it may strike down the statute or sever the offending clauses;10 3 this ensures that everyone is judged under a constitutional law.1'4 Indirect conferral of citizenship could mean nothing more than striking down offending clauses of naturalization statutes and allowing petitioners who meet the remaining, valid requirements to naturalize through those channels. At first glance, this means of conferral seems unexceptionable, as courts regularly sever offending clauses from federal acts.105 In many cases, these courts use the statute's own severability clause as a guide. Such clauses include instructions on severing, providing, for example, that if any portion of the Act is struck down, the rest of the statute shall remain in effect. Given that the INA includes such a clause, and thus contemplates severance, effecting such severance cannot inherently be seen as judicial overreach.10 6 From one perspective, merely severing the unconstitutional provisions of the statute would not implicate the conferral issue: "[Once the two unconstitutional clauses are excised from the statute, that statute [would] operate[ ] automatically to confer citizenship . ..'at birth.'" 07 On the other hand, severance could be seen as effecting a conferral of citizenship, albeit indirect, contrary to Pangilinan's strictures; the practical import of such severance would be the indirect conferral of citizenship to those included in the statute by virtue of the severance. The Ninth Circuit panel in Ahumada-Aguilar followed this path in declaring petitioner a citizen: "The evidence in the record sufficiently demonstrates that Ahumada-Aguilar is the child of a U.S. citizen father, satisfying the requirements of § 1409(a)(1) and (a)(2).' ' 1 o8

A. The U.S. Supreme Court Has Weakened Students’ Fourth Amendment Rights An important driving force behind the proliferation of intense surveillance measures in schools is the decline of students’ Fourth Amendment rights. Over the last three decades, the U.S. Supreme Court has rendered a series of decisions that provided school officials with more discretion to promote orderly, safe environments.41 For example, the Court has held that school officials do not need to obtain a search warrant, meet the probable cause standard, or have an individualized suspicion that a student is involved in illicit activity before conducting a search.42 These decisions allow school officials to legally create intense surveillance environments in their schools, even when those environments may not serve students’ best interests.43 They also allow school officials to provide evidence of wrongdoing to prosecutors that they obtained from searching students under circumstances that might have rendered that evidence inadmissible if it had been obtained under similar circumstances outside of the school context.44 The Court addressed students’ Fourth Amendment rights in schools for the first time in New Jersey v. T.L.O.45 There, after a teacher spotted two students smoking in the bathroom, the teacher promptly escorted the students to the principal’s office.46 T.L.O.’s companion admitted to a school official that she had been smoking, but T.L.O. denied the allegations.47 The school official demanded that T.L.O. hand over her purse and, after T.L.O. complied, the school official searched through its contents and uncovered a package of cigarettes, a small amount of marijuana, a substantial amount of one-dollar bills, a list of students who owed money to T.L.O, and two letters indicating that T.L.O. was dealing marijuana.48 When the state of New Jersey brought juvenile delinquency charges against T.L.O., T.L.O. moved to suppress the evidence the school official obtained, claiming that it resulted from an unlawful search.49 After determining that students do indeed hold Fourth Amendment rights in schools,50 the Court concluded that the school official’s search complied with the Fourth Amendment.51 Although the Court acknowledged students’ legitimate expectations of privacy in the belongings they bring to school and in their persons,52 the Court held that these expectations of privacy must be balanced against educators’ need to maintain order and discipline so that learning can take place.53 Accordingly, it held that school officials do not need to obtain a warrant before searching a student.54 It further held that a school official’s suspicion of student wrongdoing does not need to rise to the level of probable cause before she can conduct a search.55 Rather, a court should determine whether a search was reasonable under the circumstances by applying a twofold inquiry: (1) “whether the . . . action was justified at its inception,” and (2) whether the search “was reasonably related in scope to the circumstances which justified the interference in the first place.”56 The next U.S. Supreme Court decision to evaluate students’ Fourth Amendment rights, Vernonia School District 47J v. Acton, 57 involved a very different set of circumstances. Rather than examining the constitutionality of a search performed on an individual student, it examined the legality of a school district’s random, suspicionless drug-testing program on students participating in interscholastic sports programs.58 In a 6–3 decision authored by Justice Scalia, the Court declined to hold that individualized suspicion was essential to conduct a lawful search.59 Rather, the Court held that it must balance a search’s “intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”60 It then set forth the following three factors for courts to consider: (1) “the scope of the legitimate expectation of privacy at issue;” (2) “the character of the intrusion that is complained of;” and (3) “the nature and immediacy of the governmental concern at issue . . . and the efficacy of this means for meeting it.”61 Evaluating each of these factors, the Court first acknowledged that students retain an expectation of privacy while at school, but explained that the scope of their Fourth Amendment rights is “different in public schools than elsewhere” because of “the schools’ custodial and tutelary responsibility for children.”62 The Court reasoned that because students must submit to various physical examinations, including vision, hearing, dental, dermatological, and scoliosis screenings, their expectations of privacy in schools, “[p]articularly with regard to medical examinations and procedures,” are reduced.63 Second, the Court concluded that the drug tests were minimally intrusive because drug testing resembled conditions that students often face when using public restrooms; their purpose was limited only to ascertain whether a student athlete was using drugs, and the test results were disclosed only to a limited number of school officials, not law enforcement officers.64 Third, the Court concluded that the school district’s interest in deterring student drug use, especially among student athletes, was important in light of drugs’ physical, psychological, and addictive effects.65 The Court also concluded that the school district’s concern was immediate because “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion . . . [which] was being fueled by alcohol and drug abuse.”66 Thus, according to the Court, these considerations outweighed any privacy rights those students possessed.67 Seven years later, in Board of Education v. Earls, the Court again evaluated the constitutionality of a random, suspicionless drug-testing program.68 This drug-testing program, however, was broader than the drug-testing program in Acton because it involved all students participating in extracurricular activities, not just those involved in student athletics.69 The United States Court of Appeals for the Tenth Circuit determined that the school district’s random, suspicionless drug-testing policy violated the Fourth Amendment because the school district had not demonstrated that there was an identifiable drug abuse problem among students who participated in extracurricular activities.70 The U.S. Supreme Court, however, reversed the Tenth Circuit in a 5–4 decision authored by Justice Thomas.71 The Court evaluated the three factors outlined in Acton and largely reached the same conclusions.72 However, the Court’s holding was broader than its holding in Acton. While the Court noted that the school district “presented specific evidence of drug use,”73 it also held that it was unnecessary for the school district to provide evidence of a drug abuse problem before imposing a suspicionless drug-testing policy.74 The Court reasoned that the school district’s program complied with Fourth Amendment jurisprudence because “the nationwide drug epidemic makes the war against drugs a pressing concern in every school.”75 These decisions have paved the way for school officials to legally employ an array of search practices, including performing random, suspicionless searches of students in forms other than random drug tests.76 For example, based on this precedent, lower courts have justified the use of metal detectors in schools77 and searching through students’ lockers.78 Moreover, there are no protections against school officials’ use of a combination of security measures, such as relying on metal detectors, random sweeps, locked gates, law enforcement officers, and surveillance cameras together, even when their combined use may create an intense, prison-like environment that arguably is highly-intrusive, undignified, and inconsistent with a healthy learning atmosphere.79

Terry v. Ohio (1968) The Supreme Court’s first step to sanction racial profiling was Terry v. Ohio, 392 U.S. 1 (1968), an 8-1 ruling that developed the “reasonable suspicion” standard (also known as the “stop-and-frisk” rule). The Court, whose opinion was delivered by the usually astute Chief Justice Earl Warren, held that the Fourth Amendment’s prohibition on “unreasonable searches and seizures” is not violated when a police officer has “reasonable suspicion” “in light of his experience” that a crime has been committed. By opening the door to greater law enforcement discretion with respect to whom to stop and search, the Supreme Court in Terry gave its first approval of racial profiling. Several studies show that police officers perceive young black boys as violent and older than they actually are. One study from 2007 found that officers display a “robust racial bias in response speed” in a simulated shooting exercise of black and white targets. So when police officers are given greater discretion “in light of their experience” as Terry offered them, it’s no surprise that they disproportionately target black people. (That’s in addition to police departments institutionally over-policing poor communities of color compared to their presence in white communities.) Since Terry, police departments ‒ and the Burger, Rehnquist, and Roberts Courts ‒ have interpreted Warren’s decision as carte blanche for police officers, so much so that UNLV constitutional law professor Thomas B. McAffee described Terry‘s long-term impact on the Fourth Amendment as “truly disastrous.” “The Terry stop-and-frisk doctrine has lent itself too readily to supporting law enforcement efforts rooted in stereotypical generalizations and racial profiling,” he wrote in the Nevada Law Journal. United States v. Brignoni-Ponce (1975) United States v. Brignoni-Ponce, 422 U.S. 873 (1975) might seem on the surface to be an anti-racist decision, a good step in Fourth Amendment law. The Court ruled against law enforcement on the grounds that it violated the Fourth Amendment for stopping a vehicle solely on the basis that the driver looked Mexican. But while the Court acknowledged that, by itself, “apparent Mexican ancestry” does not justify reasonable suspicion that occupants of a vehicle are undocumented drug smugglers, it did rule unanimously that “Mexican appearance” is a “relevant factor.” Ostensibly to help law enforcement justify a stop, Justice Lewis F. Powell offered several reasons sufficient for reasonable suspicion to stop a car near the border with Mexico: “previous experience with alien traffic,” a “heavily loaded” vehicle, a vehicle with “an extraordinary number of passengers,” and finally ‒ the part that justifies racial profiling ‒ “the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.” In other words, a police officer can racially profile a motorist if that officer finds an additional reason to make a stop, effectively deeming race acceptable for reasonable suspicion. As Michelle Alexander wrote in The New Jim Crow, “Because the Supreme Court has authorized the police to use race as a factor when making decisions regarding whom to stop and search, police departments believe racial profiling exists only when race is the sole factor.” The Court in Brignoni-Ponce neglected to recognize what Kevin R. Johnson, a public interest law professor at UC Davis, pointed out in the Georgetown Law Journal: “In fact, people from Mexico run the gamut in terms of phenotypes, with there being persons of both fair and dark complexions of Mexican ancestry. Nevertheless, stereotypes of ‘Mexican appearance’ persist, and the Brignoni-Ponce Court ultimately appears to have sanctioned reliance on such stereotypes by the Border Patrol.” Whren v. United States (1996) In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court unanimously sanctioned racial profiling by allowing police officers to make “pretext stops,” wherein an officer pulls over a motorist for a traffic violation with the specific intention of hunting for drugs. “It does not matter, the Court declared, why the police are stopping motorists under the Fourth Amendment, so long as some kind of traffic violation gives them an excuse. The fact that the Fourth Amendment was specifically designed to prevent arbitrary stops and searches was deemed unpersuasive,” Alexander wrote of the decision. But approving pretext stops wasn’t even the most dangerous legal precedent set in Whren. The Court barred victims of a pretext stop from challenging the admission of evidence on Fourth Amendment grounds, thus ignoring Whren’s argument that police officers may decide which motorists to stop based on factors that should be constitutionally impermissible, such as race. Justice Antonin Scalia ruled, “We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.” Scalia’s ruling left people of color with “an onerous evidentiary burden,” Johnson wrote. The responsibility for proving racism was once again placed on the oppressed. Pointing out that the Court “failed to cite any cases supporting its conclusion that the Equal Protection Clause offered the exclusive constitutional remedy (or, at least, that it offered a remedy where the Fourth Amendment did not),” Johnson noted how difficult it is to prove discrimination under the Equal Protection Clause: The Fourth Amendment’s exclusionary rule bars the use of unlawfully seized evidence against a defendant; there is no counterpart in the Equal Protection Clause of the Fourteenth Amendment. The inability to exclude the fruits of a stop based on impermissible factors under the Equal Protection Clause make any such claim of limited utility to criminal defendants like Whren and Brown, who wanted to avoid conviction and imprisonment, not to recover damages in a civil action for a violation of their constitutional rights. By ruling that the Fourth Amendment offered no protection against a racially motivated traffic stop, the Court gave law enforcement officials its approval to racially profile motorists and “closed the courthouse doors to claims of racial bias,” Alexander wrote. The law is supposed to protect the rights of individuals against state abuse. But these cases show how the law can be manipulated by those who wield power to uphold a system of racial hierarchy.

“In my thirty years as a customs official, the trafficking of synthetic illicit drugs like fentanyl is one of the toughest, most daunting challenges I have ever seen. Through this updated strategy, we will channel the incredible efforts of the men and women of CBP to keep this and other drugs out of the country,” said CBP Senior Official Performing the Duties of the Commissioner Troy Miller. “CBP’s modernized Strategy brings the unique, formidable, and wide-ranging capabilities and authorities of CBP to bear on the illicit synthetic drug trade and build capacity and collaboration with our partners—domestic and international—to ensure the safety of the American people. As the nation’s frontline, CBP is uniquely positioned to lead the federal government’s efforts to combat fentanyl.”

CHICAGO (CBS) -- U.S. Customs and Border Protection (CBP) officers at Chicago O'Hare's International Mail Branch intercepted and seized a shipment containing $1 million worth of counterfeit designer merchandise.

The illicit shipment from Thailand included fake designer watches, bracelets, handbags, and scarves. If these items had been genuine, the value would have exceeded $1 million.

What happened: On Aug. 10, officials from U.S. Customs and Border Protection (CBP) and the U.S. Chamber of Commerce (Chamber) signed a five-year renewal of a memorandum of understanding (MOU) creating a groundbreaking public-private partnership to fight counterfeit products entering U.S. markets.

Small packages: Following the MOU re-signing, industry representatives toured the John F. Kennedy International Airport (JFK) international mail facility. Small parcels entering the United States via U.S. mail are a vital distribution channel for global counterfeiters, meaning that fake, illicit, or sub-standard products are now being delivered directly to the consumer’s door.

I believe that we will increasingly understand good and evil, right and wrong, in scientific terms, because moral concerns translate into facts about how our thoughts and behaviors affect the well-being of conscious creatures like ourselves. If there are facts to be known about the well-being of such creatures—and there are—then there must be right and wrong answers to moral questions. Students of philosophy will notice that this commits me to some form of moral realism (viz. moral claims can really be true or false) and some form of consequentialism (viz. the rightness of an act depends on how it impacts the well-being of conscious creatures). While moral realism and consequentialism have both come under pressure in philosophical circles, they have the virtue of corresponding to many of our intuitions about how the world works. Here is my (consequentialist) starting point: all questions of value (right and wrong, good and evil, etc.) depend upon the possibility of experiencing such value. Without potential consequences at the level of experience—happiness, suffering, joy, despair, etc. —all talk of value is empty. Therefore, to say that an act is morally necessary, or evil, or blameless, is to make (tacit) claims about its consequences in the lives of conscious creatures (whether actual or potential).I am unaware of any interesting exception to this rule. Needless to say, if one is worried about pleasing God or His angels, this assumes that such invisible entities are conscious (in some sense) and cognizant of human behavior. It also generally assumes that it is possible to suffer their wrath or enjoy their approval, either in this world or the world to come. Even within religion, therefore, consequences and conscious states remain the foundation of all values. 

What turn-of-the-millennium science is telling us is that human moral judgment is not a pristine rational enterprise, that our moral judgments are driven by a hodgepodge of emotional dispositions, which themselves were shaped by a hodgepodge of evolutionary forces, both biological and cultural. Because of this, it is exceedingly unlikely that there is any rationally coherent normative moral theory that can accommodate our moral intuitions. Moreover, anyone who claims to have such a theory, or even part of one, almost certainly doesn't. Instead, what that person probably has is a moral rationalization.¶ It seems then, that we have somehow crossed the infamous "is"-"ought" divide. How did this happen? Didn't Hume (Hume, 1978) and Moore (Moore, 1966) warn us against trying to derive an "ought" from and "is?" How did we go from descriptive scientific theories concerning moral psychology to skepticism about a whole class of normative moral theories? The answer is that we did not, as Hume and Moore anticipated, attempt to derive an "ought" from and "is." That is, our method has been inductive rather than deductive. We have inferred on the basis of the available evidence that the phenomenon of rationalist deontological philosophy is best explained as a rationalization of evolved emotional intuition (Harman, 1977).¶ Missing the Deontological Point I suspect that rationalist deontologists will remain unmoved by the arguments presented here. Instead, I suspect, they will insist that I have simply misunderstood whatKant and like-minded deontologists are all about. Deontology, they will say, isn't about this intuition or that intuition. It's not defined by its normative differences with consequentialism. Rather, deontology is about taking humanity seriously. Above all else, it's about respect for persons. It's about treating others as fellow rational creatures rather than as mere objects, about acting for reasons rational beings can share. And so on (Korsgaard, 1996a; Korsgaard, 1996b).This is, no doubt, how many deontologists see deontology. But this insider's view, as I've suggested, may be misleading. The problem, more specifically, is that it defines deontology in terms of values that are not distinctively deontological, though they may appear to be from the inside. Consider the following analogy with religion. When one asks a religious person to explain the essence of his religion, one often gets an answer like this: "It's about love, really. It's about looking out for other people, looking beyond oneself. It's about community, being part of something larger than oneself." This sort of answer accurately captures the phenomenology of many people's religion, but it's nevertheless inadequate for distinguishing religion from other things. This is because many, if not most, non-religious people aspire to love deeply, look out for other people, avoid self-absorption, have a sense of a community, and be connected to things larger than themselves. In other words, secular humanists and atheists can assent to most of what many religious people think religion is all about. From a secular humanist's point of view, in contrast, what's distinctive about religion is its commitment to the existence of supernatural entities as well as formal religious institutions and doctrines. And they're right. These things really do distinguish religious from non-religious practices, though they may appear to be secondary to many people operating from within a religious point of view. In the same way, I believe that most of the standard deontological/Kantian self-characterizatons fail to distinguish deontology from other approaches to ethics. (See also Kagan (Kagan, 1997, pp. 70-78.) on the difficulty of defining deontology.) It seems to me that consequentialists, as much as anyone else, have respect for persons, are against treating people as mere objects, wish to act for reasons that rational creatures can share, etc. A consequentialist respects other persons, and refrains from treating them as mere objects, by counting every person's well-being in the decision-making process. Likewise, a consequentialist attempts to act according to reasons that rational creatures can share by acting according to principles that give equal weight to everyone's interests, i.e. that are impartial. This is not to say that consequentialists and deontologists don't differ. They do. It's just that the real differences may not be what deontologists often take them to be. What, then, distinguishes deontology from other kinds of moral thought? A good strategy for answering this question is to start with concrete disagreements between deontologists and others (such as consequentialists) and then work backward in search of deeper principles. This is what I've attempted to do with the trolley and footbridge cases, and other instances in which deontologists and consequentialists disagree. If you ask a deontologically-minded person why it's wrong to push someone in front of speeding trolley in order to save five others, you will getcharacteristically deontological answers. Some will be tautological: "Because it's murder!"Others will be more sophisticated: "The ends don't justify the means." "You have to respect people's rights." But, as we know, these answers don't really explain anything, because if you give the same people (on different occasions) the trolley case or the loop case (See above), they'll make the opposite judgment, even though their initial explanation concerning the footbridge case applies equally well to one or both of these cases. Talk about rights, respect for persons, and reasons we can share are natural attempts to explain, in "cognitive" terms, what we feel when we find ourselves having emotionally driven intuitions that are odds with the cold calculus of consequentialism. Although these explanations are inevitably incomplete, there seems to be "something deeply right" about them because they give voice to powerful moral emotions. But, as with many religious people's accounts of what's essential to religion, they don't really explain what's distinctive about the philosophy in question.

Perry wishes more people were familiar with the concept of “expected value.” That is a statistical way of understanding events of very large magnitude that have a low probability. The large magnitude event could be something good, like winning a lottery ticket. Or it could be something bad, like a nuclear bomb exploding. Because the odds of winning the lottery are so low, the rational thing is to save your money and not buy the ticket. As for a nuclear explosion, by Perry’s lights, the consequences are so grave that the rational thing would be for people in the United States and everywhere to be in a state of peak alarm about their vulnerability, and for political debate to be dominated by discussion of how to reduce the risk. And just how high is the risk? The answer of course is ultimately unknowable. Perry’s point, though, is that it’s a hell of a lot higher than you think. Perry invites his listeners to consider all the various scenarios that might lead to a nuclear event. “Mathematically speaking, you add those all together in one year it is still just a possibility, not a probability,” he reckons. “But then you go out ten, twenty years and each time this possibility repeats itself, and then it starts to become a probability. How much time we have to get those possibility numbers lower, I don’t know. But sooner or later the odds are going to get us, I am afraid.” *** Almost uniquely among living Americans, Bill Perry has actually faced down the prospect of nuclear war before—twice. In the fall of 1962, Bill Perry was 35, father of five young children, living in the Bay Area and serving as director of Sylvania’s Electronic Defense Laboratories—driving his station wagon to recitals in between studying missile trajectories and the radius of nuclear detonations. Where he resided was not then called Silicon Valley, but the exuberance and spirit of creative possibility we now associate with the region was already evident. The giants then were Bill Hewlett and David Packard, men Perry deeply admired and wished to emulate in his own business career. The innovation engine at that time, however, was not consumer technology; it was the government’s appetite for advantage in a mortal struggle against a powerful Soviet foe. Perry was known as a star in the highly complex field of weapons surveillance and interpretation. So it was not a surprise, one bright October day, for Perry to get a call from Albert “Bud” Wheelon, a friend at the Central Intelligence Agency. Wheelon said he wanted Perry in Washington for a consultation. Perry said he’d juggle his schedule and be there the next week. “No,” Wheelon responded. “I need to see you right away.” Perry caught the red-eye from San Francisco, and went straight to the CIA, where he was handed photographs whose meaning was instantly clear to him. They were of Soviet missiles stationed in Cuba. For the next couple weeks, Perry would stay up past midnight each evening poring over the latest reconnaissance photos and help write the analysis that senior officials would present the next morning to President Kennedy. Perry experienced the crisis partly as ordinary citizen, hearing Kennedy on television draw an unambiguous line against Soviet missiles in this hemisphere and promising that any attack would be met with “a full retaliatory response.” But he possessed context, about the capabilities of weapons and the daily state of play in the crisis, that gave him a vantage point superior to that of all but perhaps a few dozen people. “I was part of a small team—six or eight people,” he recounted of those days 54 years earlier. “Half of them technical experts, half of them intelligence analysts, or photo interpreters. It was a minor role but I was seeing all the information coming in. I thought every day when I went back to the hotel it was the last day of my life because I knew exactly what nuclear weapons could do. I knew it was not just a lot of people getting killed. It was the end of civilization and I thought it was about to happen.” It was years later that Perry, like other more senior participants in the crisis, learned how right that appraisal was. Nuclear bombs weren’t only heading toward Cuba on Soviet ships, as Kennedy believed and announced to Americans at the time. Some of them were already there, and local commanders had been given authority to use them if Americans launched a preemptive raid on Cuba, as Kennedy was being urged, goaded even, by Air Force Gen. Curtis LeMay and other military commanders. At the same time, Soviet submarines were armed and one commander had been on the verge of launching them until other officers on the vessel talked him out of it. Either event would have in turn sent U.S. missiles flying. The Cuban Missile Crisis recounting is one of the dramatic peaks in “My Journey on the Nuclear Brink,” the memoir Perry published last fall. It is a book laced with other close calls—like November 9, 1979, when Perry was awakened in the middle of the night by a watch officer at the North American Aerospace and Defense Command (NORAD) reporting that his computers showed 200 Soviet missiles in flight toward the United States. For a frozen moment, Perry thought: This is it—This is how it ends. The watch officer soon set him at ease. It was a computer error, and he was calling to see whether Perry, the technology expert, had any explanation. It took a couple days to discover the low-tech answer: Someone had carelessly left a crisis-simulation training tape in the computer. All was well. But what if this blunder had happened in the middle of a real crisis, with leaders in Washington and Moscow already on high alert? The inescapable conclusion was the same as it was in 1962: The world skirting nuclear Armageddon as much by good luck as by skilled crisis management. Perry is part of a distinct cohort in American history, one that didn’t come home with the large-living ethos of the World War II generation, but took responsibility for cleaning up the world that the war bequeathed. He was a 14-year-old in Butler, Pennsylvania when he heard the news of the Pearl Harbor attack in a friend’s living room, and had the disappointed realization that the war might be over by the time he was old enough to fight in it. That turned out to be true—he was just shy of 18 at war’s end—a fact that places Perry in what demographers have called the “Silent Generation,” too young for one war but already middle-aged by the time college campuses erupted over Vietnam. Like many in his generation, Perry was not so much silent as deeply dutiful, with an understated style that served as a genial, dry-witted exterior to a life in which success was defined by how faithfully one met his responsibilities. Perry said he became aware, first gradually and over time profoundly, of the surreal contradictions of his professional life. His work—first at Sylvania and then at ESL, a highly successful defense contracting firm he co-founded in 1963—was relentlessly logical, analyzing Soviet threats and intentions and coming up with rational responses to deter them. But each rational move was part of a supremely irrational dynamic—“mutually assured destruction”—that placed the threat of massive casualties at the heart of America’s basic strategic thinking. It was the kind of framework in which policymakers could accept that a mere 25 million people dead was good news. Also the kind that in one year alone led the United States to produce 8,000 nuclear bombs. By the end, the Cold War left the planet with about 70,000 bombs (a total that is now down to about 15,500). “I think probably everybody who was involved in nuclear weapons in those days would see the two sides of it,” Perry recalls, “the logic of deterrence and the madness of deterrence, and there was no mistake, I think, that the acronym was MAD.” *** Perry has been at the forefront of a movement that he considers the sane and only alternative, and he has joined forces with other leading Cold Warriors who in another era would likely have derided their vision as naïve. In January 2007, he was a co-author of a remarkable commentary that ran on the op-ed page of the Wall Street Journal. It was signed also by two former secretaries of state, George Schulz and Henry Kissinger and by Sam Nunn, a former chairman of the Senate Armed Services Committee—all leading military hawks and foreign policy realists who came together to argue for something radical: that the goal of U.S. policy should be not merely the reduction and control of atomic arms, it should be the ultimate elimination of all nuclear weapons. This sounded like gauzy utopianism, especially bizarre coming from supremely pragmatic men. But Perry and the others always made clear they were describing a long-term ideal, one that would only be achieved through a series of more incremental steps. The vision was stirring enough that it was endorsed by President Obama in his opening weeks in office, in a March 2009 address in Prague. In retrospect, Obama’s speech may have been the high point for the vision of abolition. “A huge amount of progress was made,” recalled Shultz, now 93. “Now it is going in the other direction.” “We have less danger of an all-out war with Russia,” in Nunn’s view. “But we have more danger of some type of accident, miscalculation, cyber interference, a terrorist group getting a nuclear weapon. It requires a lot more attention than world leaders are giving it.” Perry’s goal now is much more defensive than it was just a few years ago—halting what has become inexorable momentum toward reviving Cold War assumptions about the central role of nukes in national security. More recently he’s added yet another recruit to his cause: California Governor Jerry Brown. Brown, now 78, met Perry a year ago, after deciding that he wanted to devote his remaining time in public service mainly to what he sees as civilization’s two existential issues, climate change and nuclear weapons. Brown said he became fixated on spreading Perry’s message after reading his memoir: He recently gave a copy to President Obama and is trying to bend the ear of others with influence in Washington. If Bill Perry has a gift for understatement, Brown has a gift for the theatrical. In an interview at the governor’s mansion in Sacramento, he wonders why everyone is not paying attention to his new friend and his warnings for mankind. “He is at the brink! At the brink! Not WAS at the brink—IS at the brink,” Brown exclaimed. “But no one else is.” A California governor can have more influence, at least indirectly, than one might think, due to the state’s outsized role in policy debates and the fact that the University of California’s Board of Regents helps manage some of the nation’s top weapons laboratories, which study and design nuclear weapons. Brown, who was a vocal critic in the 1980s of what he called America's "nuclear addiction," reviewed Perry's recent memoir in the New York Review of Books, and said he is determined to help his new friend spread his message. “Everybody is, 'we are not at the brink,' and we have this guy Perry who says we are. It is the thesis that is being ignored." Even if more influential people wake up to Perry’s message—a nuclear event is more likely and will be more terrible than you realize—a hard questions remains: Now what? This is where Perry’s pragmatism comes back into play. The smartest move, he thinks, is to eliminate the riskiest part of the system. If we can’t eliminate all nukes, Perry argues, we could at least eliminate one leg of the so-called nuclear triad, intercontinental ballistic missiles. These are especially prone to an accidental nuclear war, if they are launched by accident or due to miscalculation by a leader operating with only minutes to spare. Nuclear weapons carried by submarines beneath the sea or aboard bomber planes, he argues, are logically more than enough to deter Russia. The problem, he knows, is that logic is not necessarily the prevailing force in political debates. Psychology is, and this seems to be dictating not merely that we deter a Russian military force that is modernizing its weapons but that we have a force that is self-evidently superior to them. It is an argument that strikes Perry as drearily familiar to the old days. Which leads him the conclusion that the only long-term way out is to persuade a younger generation to make a different choice. His granddaughter, Lisa Perry, is precisely in the cohort he needs to reach. At first she had some uncomfortable news for her grandfather: Not many in her generation thought much about the issue. “The more I learned from him about nuclear weapons the more concerned I was that my generation had this massive and dangerous blind spot in our understanding of the world,” she said in an interview. “Nuclear weapons are the biggest public health issue I can think of.” But she has not lost hope that their efforts can make a difference, and today she has put her graduate studies in public health on hold to work full time for the Perry Project as its social media and web manager. “It can be easy to get discouraged about being able to do anything to change our course,” she said. “But the good news is that nuclear weapons are actually something that we as humans can control...but first we need to start the conversation.” It was with her help that Perry went on Reddit to field questions ranging from how his PhD in mathematics prepared him to what young people need to understand. “As a 90s baby I never lived in the Cold War era,” wrote one participant, with the Reddit username BobinForApples. “What is one thing today's generations will never understand about life during the Cold War?” Perry’s answered, as SecDef19: “Because you were born in the 1990s, you did not experience the daily terror of ‘duck and cover’ drills as my children did. Therefore the appropriate fear of nuclear weapons is not part of your heritage, but the danger is just as real now as it was then. It will be up to your generation to develop the policies to deal with the deadly nuclear legacy that is still very much with us.” For the former defense secretary, the task now is to finally—belatedly—prove Einstein wrong. The physicist said in 1946: “The unleashed power of the atom has changed everything save our modes of thinking and we thus drift toward unparalleled catastrophe.” In Perry’s view the only way to avoid it is by directly contemplating catastrophe—and doing so face to face with the world’s largest nuclear power, Russia, as he recently did in a forum in Luxembourg with several like-minded Russians he says are brave enough to speak out about nuclear dangers in the era of Putin. “We could solve it,” he said. “When you’re a prophet of doom, what keeps you going is not just prophesizing doom but saying there are things we do to avoid that doom. That’s where the optimism is.”

Can the master theorists in our critical theory consensus make the same claim? All scientific assertions are potentially falsifiable through the use of the scientific method, but what experiments or logics would the master theorists accept as a basis for the falsifiability of their ideas? Looking at the theorists featured in Critical Theory and Performance, one might say that they represent a range of approaches that admit of greater or lesser degrees of falsifiability. At one end of the continuum, the theories of Bourdieu, Habermas, Gramsci, and Williams generally work within the falsifiability protocols of social science, which (though open to dispute) have been fairly well established for fifty years. When Raymond Williams's version of Gramsci's hegemony theory was gaining a curious audience among historians, its potential falsifiability was widely discussed.46 While social scientists, including historians, cannot apply falsifiability to their work with the same rigor as scientists who work with nonhuman subjects, their standards concerning evidence, economy, and consistency are high.47¶ Somewhere in the middle of the continuum of falsifiability, perhaps, are the psychoanalytic theories of Freud, their synthesis with semiotics in Lacan, and the many theorists who build their own ideas on some version of a psychoanalytic base. Their advocates often claim scientific validity for these theories. Most psychologists, however, have rejected psychoanalysis and its spin-offs as unfalsifiable. In her Psychoanalysis and Cognitive Science, for example, Wilma Bucci concludes that Freud's meta-psychology has not "been subject to the empirical evaluation and theory development that is necessary for a scientific field." Specifically, the type of systematic inference that is applied in cognitive science and in all modern science requires explicit definitions that limit the meaning of the concepts, correspondence rules mapping hypothetical constructs and intervening variables onto observable events, and means of assessing reliability of observation. Each of the indicators that analysts rely on to make inferences about the conscious and unconscious states of other persons (as [End Page 571] about one's own conscious states) must itself be independently validated as having the implications that are assumed.48¶ In defense, Freudians and Lacanians often claim that their theories are consonant with good science because their concepts have been scientifically validated in therapeutic sessions.49 But clinical success, however it is measured, is not the same as empirical verification. Just because "the talking cure" has been effective in some cases does not mean that Freud's or Lacan's explanation for why it worked is valid. Humans have had many explanations for fire over the centuries, but understanding why and how combustion really works must rely on recent physics and chemistry.¶ At the other end of the continuum are theorists such as Baudrillard, Derrida, Féral, and other poststructuralists, whose radical skepticism challenges the ability of science or any other discourse to provide a valid standard of falsifiability. The relativism of poststructuralism, including its challenges to empirical verification, defies any protocols that might stabilize knowledge based on the slippery signifiers provided by language. Despite what they take to be the inherent contradictions of textual assertions, poststructuralists from Lyotard to Derrida rely chiefly on logic and argumentation rather than scientific or historical evidence. Within the assumptions of poststructuralism, Derrida's gnomic remark, "There is nothing beyond the text," is simply unfalsifiable. The critic who wishes to rely on what Derrida might have meant in that statement, however, will have to ignore a great deal of good science in linguistics and evolutionary psychology to be able to assess the probable truth of Derrida's assertion.50¶ Brian Vickers challenges the weak scientific credentials of several of the master theorists that many humanist academics have embraced. As he points out with acerbity:¶ Freud's work is notoriously speculative, a vast theoretical edifice elaborated with a mere pretense of corroboration, citing "clinical observations" which turn out to be false, with contrary evidence suppressed, data manipulated, building up over a forty-year period a self-obscuring, self-protective mythology. The system of Derrida, although disavowing systematicity, is based on several unproven theses about the nature of language which are supported by a vast expanding web of idiosyncratic terminology. . . . Lacan's system, even more vastly elaborated . . . is a series of devices for evading accountability. . . . Foucault places himself above criticism.51¶ Whether all of Vickers's charges are valid may be less important than his general point: he presents suggestive evidence that these master theorists tried to place their ideas beyond the protocols of falsifiability.

However, with a lack of available concepts or a grammar of how to create and use the bridging tools, a dialogue between disciplines with different premises and concepts cannot be easy. For a successful dialogue to emerge, understanding of the language of both par- ticipants is a necessity. A living grammar is required to connect the languages of both fields and to avoid confusion. Its creation is. to express it diminutively, not a small challenge.¶ Neuroscience cannot prove psychoanalysis to be correct. However, when coherence between the findings of the two fields is shown, neuroscience may strengthen the credibility of psychoanalytical theory. The criterion for this, then, is that meaningfulness can be seen to prevail in the connection of the findings within these two fields, even though the connections arc in a strict sense not causal, as they always require interpretation of their meaning.¶ The history of psychoanalysis is a history of diverging schools of psychoanalytic thought. Psychoanalysis scarcely needs new schools of thought, which is what the development of neuro-psychoanalysis might lead to. In assessing the meaning of neuroscience to psychoanalysis, it is important to stress the mutuality of their cooperation and not surrender to a misleading impression of their merging with one another. Psychoanalysis needs a conception of mental reality based on its own observations and concepts of the unconscious and conscious, presymbolic and symbolic nature of the mind, which cannot be replaced by paradigms of experimental research (see, c.g.. von Wright. 1971: EnckelK H. 2002. 2010).¶ Although recent information-theoretical models of the human mind may have narrowed the gap between these two paradigms {Sun ct al.. 2009). neurocognitive models have not changed either the symbolic or the presymbolic nature of the symbiosis of human relations or the differences prevailing between them and experimental models. A crucial question in the dialogue between neuroscience and psychoanalysis is whether a real benefit is gained from their interactions. New concepts or denotations, such as neuro-psychoanalysis do not create a new reality. They do so only if they truly widen the understanding of the mind.