Matthew Lister - Profile on Academia.edu (original) (raw)

Papers by Matthew Lister

LGBTQ ASYLUM AND REFUGEE PROTECTION: PROBLEMS AND PROSPECTS

Capital Univesity Law Review, 2024

Despite marked improvements in rights for LGBTQ persons around the world, significant problems re... more Despite marked improvements in rights for LGBTQ persons around the world, significant problems remain. In many countries, LGBTQ persons face significant discrimination, lack of protection from harm by non-state actors, and persecution from their own governments. This article examines when and why protection under the UN Refugee Convention should be granted to those seeking asylum or refugee status because of maltreatment related to their LGBTQ status. To this end, Part II shows how LGBTQ asylum seekers straightforwardly fit into the definition of a “refugee” set out in the UN Refugee Convention. Subsequent Parts address how to overcome some potential complications arising out of the sorts of harms faced by LGBTQ applicants without significant modifications to the standard refugee definition. The article then turns to two further areas of practical difficulty for LGBTQ asylum seekers and suggest approaches and reforms to deal with these problems. The first issue involves the interaction between considerations around the family and refugee and asylum law. While the legal protections of the rights of LGBTQ families have improved in many countries, difficulties remain, and even in cases where these rights have been granted by a state, there are often special difficulties faced by LGBTQ asylum seekers. The article therefore proposes and justifies certain reforms in this area. Finally, the article address questions and concerns about the type of evidence that may be demanded by those adjudicating asylum and refugee cases involving LGBTQ applicants.

Australian Politics at a Crossroads: Prospects for Change, 2024

In this chapter I focus on two problems facing immigration systems around the world, and Australi... more In this chapter I focus on two problems facing immigration systems around the world, and Australia in particular. The topics addressed are chosen because each one involves important fundamental rights and because significant improvement in these areas is possible even if each state acts alone, without significant coordination with others. First, I examine refugee programmes, focussing specifically on the ‘two- tier’ refugee programmes pioneered by Australia with the introduction of Temporary Protection Visas by the Howard Government in 1999. Next, I look at recent declines in refugee resettlement schemes from already stingy levels and, in relation to Australia in particular, I show how the tying of resettlement numbers to the number of affirmative asylum claims granted is both wrong- headed and counterproductive. The second area of immigration policy explored is family migration, another area where immigration systems around the world have been moving in the wrong direction, often via less than transparent administrative processes. Australia is no exception. While Australia’s family migration system is reasonably good on its face, in practice there are several factors which make the programme significantly less than satisfactory from the perspective of protecting the basic rights of migrants and, arguably more importantly, citizens. These problems can and should be fixed in straightforward ways, and since doing so would be more just, would have few— if any— significant negative consequences, and in fact would have a number of clear benefits, those changes should be made.

The present issue of the newsletter opens with Francisco Gallegos's article "Surviving Social Dis... more The present issue of the newsletter opens with Francisco Gallegos's article "Surviving Social Disintegration: Jorge Portilla on the Phenomenology of Zozobra," winner of the 2017 APA Prize in Latin American Thought. In the article, Gallegos argues Jorge Portilla's conception of zozobra, of the anxiety that arises when a community's shared "horizon of understanding" becomes disintegrated and the basic norms that govern life in a society become unstable, is not merely psychological but existential in nature, and as such, it undermines our freedom at a deep, structural level, while giving rise to tendencies toward quietism, cynicism, nostalgia, and apocalyptic thinking. He further arues that Portilla's analysis of zozobra sheds light on the current situation in the US in the wake of the extremely divisive 2016 presidential election, and that it can help us evaluate various strategies for engaging in cultural politics. BOOK REVIEWS Book reviews in any area of Hispanic/Latino philosophy, broadly construed, are welcome. Submissions should be accompanied by a short biographical summary of the author. Book reviews may be short (500 words) or long (1,500 words). Electronic submissions are preferred. DEADLINES The deadline for spring issues is November 15. Authors should expect a decision by January 15. The deadline for fall issues is April 15. Authors should expect a decision by June 15.

New Criminal Law Review: An International and Interdisciplinary Journal, 2014

A number of articles and empirical studies over the past decade suggest a relationship between th... more A number of articles and empirical studies over the past decade suggest a relationship between the criminal law’s reputation for being just—its “moral credibility”—and its ability to gain society’s deference and compliance through a variety of mechanisms that enhance the system’s crime-control effectiveness. This has led to proposals for criminal liability and punishment rules to reflect lay intuitions of justice—“empirical desert”—as a means of enhancing the system’s moral credibility. In a recent article, Christopher Slobogin and Lauren Brinkley-Rubinstein (SBR) report seven sets of studies that, in their view, undermine these claims about empirical desert and moral credibility. Instead, say SBR, the studies support their own proposed distributive principle of “individual prevention.” As this article shows, however, SBR have it wrong on both counts: not only do their studies actually confirm the crime-control power of empirical desert, but they provide no support for their own pri...

Saint Louis University law journal, 2018

The rule of law is an example of what has been called an “essentially contested concept.” These a... more The rule of law is an example of what has been called an “essentially contested concept.” These are concepts where the conditions of their proper application are subject to deep, arguably intractable, dispute among people who are otherwise able to apply the terms.1 A wide number of authors have offered accounts of the rule of law, and yet none have been able to garner general support.2 This might make us worry about the usefulness of further work on the topic. However, as shown in the papers making up this book symposium, Paul Gowder, in his recent book, The Rule of Law in the Real World, offers us both a novel account of the rule of law and a fruitful application of the account. While each of the commenters take issue with one or another aspect of Gowder’s account, all agree that it makes a significant contribution to our understanding of the rule of law and offers fresh insight for further analysis. In what follows I will briefly set out the core elements of Gowder’s account and t...

Law and Philosophy, 2010

, and two anonymous reviews for Law and Philosophy also provided very helpful comments. 1 By fami... more , and two anonymous reviews for Law and Philosophy also provided very helpful comments. 1 By family-based immigration I shall primarily mean cases where one member of a family (or would-be family, in some cases) is already an 'insider' in the country of immigration-usually a citizen but sometimes a legal permanent resident, and the would-be immigrant is a family member who is allowed to immigrate, or at least seeks to immigrate, because of the family tie in question. Exactly which family ties should qualify for immigration benefits is part of what I hope to establish in this paper. There are many possible complications to the basic case given above. I shall discuss some of them as necessary, but shall mostly be concerned with this sort of core case in this paper.

Saint Louis University law journal, 2018

The border is an area where the rule of law has often found difficulty taking root, existing as l... more The border is an area where the rule of law has often found difficulty taking root, existing as law-free zones characterized by largely unbounded legal and administrative discretion. In his important new book, The Rule of Law in the Real World, Paul Gowder deftly combines historical examples, formal models, legal analysis, and philosophical theory to provide a novel and compelling account of the rule of law. In this paper I consider whether the account Gowder offers can provide the tools needed to bring the border under the rule of law. I argue that on Gowder’s account, there are two ways in which we might try to extend the rule of law to the border.The first is to look at concrete connections that current citizens or members of the political community have with non-citizens. Just as the interests of current citizens give them strong reasons to coordinate to establish the rule of law in their own community, so may the interests of current members in connections with nonmembers give ...

Canadian Journal of Law and Jurisprudence, 2022

Employers seeking to control employee behavior outside of working hours is nothing new. However, ... more Employers seeking to control employee behavior outside of working hours is nothing new. However, recent developments have extended efforts to control employee behavior into new areas, with new significance. Employers seek to control legal behavior by employees outside of working hours, to have significant influence over employee's health-related behavior, and to monitor and control employee's social media, even when this behavior has nothing to do with the workplace. In this article, I draw on the work of political theorists Jon Elster, Gerald Gaus and Michael Walzer, and privacy scholars Daniel Solove and Anita Allen, to show what is wrong with this extension of employer control of employee's outside of work behavior. I argue that there are ethical limits on the controls that employers may put on their employees' out of work behavior, and that many of these limits should be enshrined into legal protections which would prevent employers from conditioning employment on the regulations criticized.

Philosophy Compass, 2020

Over the last few years, an increasingly sophisticated literature devoted to normative questions ... more Over the last few years, an increasingly sophisticated literature devoted to normative questions arising out of the enforcement of immigration law had developed. In this essay, I consider what sorts of constraints considerations of justice and legitimacy may place on the enforcement of immigration law, even if we assume that states have significant discretion in setting their own immigration policies, and that open borders are not required by justice. I consider constraints placed on state or national governments, constraints on enforcement by substate governments, and constraints on the actions of individuals. I show that there are significant limits on what states may do and what they may require substate governments and individuals to do, in enforcing their immigration laws, but that these constraints are not clearly incompatible with significant state discretion in setting immigration policy. Nonetheless, consideration of justice in enforcement is necessary for any complete normative account of immigration.

The Political Philosophy of Refuge; David Miller & Christine Straehle (eds.), Cambridge University Press, 2020

A Significant percentage of the people outside their country of citizenship or residence who are ... more A Significant percentage of the people outside their country of citizenship or residence who are unable to meet their basic needs on their own, and need international protection, do not fall under the definition set out in the UN Refugee Convention. This has led many - both academic commentators and activists - to call for a new, expanded refugee definition, preferably backed up by a new, binding, international convention. In earlier work I have resisted this call, arguing that there is good reason to pick out a sub-stet of those in need of international aid - a set that largely, if not completely, corresponds to those picked out by the Refugee Convention - for special benefit and protection. However, even if Convention refugees are in some ways special, we are left with the question of what, if anything, is owed to those in need of aid who are not Convention refugees. In this chapter, I set out philosophical foundations for so-called complementary protection, and show how this may and should apply to people in need of international aid who are not Convention refugees.

Sovereignty and the New Executive Authority, 2019

It is a common charge that treaties, perhaps especially recent treaties relating to economic acti... more It is a common charge that treaties, perhaps especially recent treaties relating to economic activity, provide unreasonable restrictions on the sovereignty of the state parties. While this charge has been made most forcefully by smaller states, it is sometimes raised with justification by larger states or state-like bodies such as the E.U. as well. When a tribunal judging a dispute on an economic treaty tells a state that it may no longer make decisions such as to accept or reject genetically modified foods, allow internet gambling, or produce generic drugs for domestic consumption, the citizens of the state may rightfully think they have lost important aspects of sovereignty to bodies that do not have legitimate authority to govern. This, in turn, makes negotiating treaties, despite their obvious value, much harder than it otherwise would be, leading to decreased cooperation and the forgoing of potentially significant gain. In this paper, I argue that by importing certain ideas from contract theory to the interpretation of treaties, these worries may be significantly reduced. Contracts have the seemingly paradoxical ability to increase the autonomy of the signers by allowing them to bind themselves to perform certain future actions. But, the ability of contracts to perform this function would be greatly reduced if the only possible remedy for breach were specific performance. Yet, an analogous approach to treaties is common among many important theorists of international law, who demand the equivalence of specific performance in the case of treaties. I will show how importing ideas from contract law can help ensure that treaties, especially economic treaties, are sovereignty-enhancing for states in a way that is similar to the way that contracts may be autonomy-enhancing for individuals, and will show that importing these elements from contract law will strengthen, not undermine, the legitimacy and fairness of international law.

Please download the full paper from SSRN here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3372640

St. Louis University Law Journal, 2017

St. Louis University Law Journal, Vol. 62, No. 1, 2017 This paper proposes a novel use of tax ... more St. Louis University Law Journal, Vol. 62, No. 1, 2017

This paper proposes a novel use of tax policy to address one of the most pressing issues arising from economic globalization and international migration, that of “brain drain” – in particular, the migration of certain skilled and highly trained or educated professionals from less and least developed countries to wealthy “western” countries. This problem is perhaps most pressing in relation to doctors, nurses, and other medical professionals, but exists also for teachers, lawyers, economists, engineers, and other highly skilled or trained professionals. While there have been other proposals in the past to use tax policy to address brain drain (most famously versions of the so-called “Bhagwati Tax”, a form of exit tax), in this paper I provide an account of and justification for using tax credits, modeled loosely on the foreign tax credits U.S. citizens receive in certain situations for taxes paid in other countries. My proposal avoids several of the pitfalls of other methods of using tax policy to ameliorate the harms of brain drain, as it does not subject people from the developing world to potentially onerous double taxation, and does not depend on sophisticated tax collection capabilities within developing countries, capabilities which are often lacking. Additionally, my proposal also leads to fewer morally problematic restrictions on the liberty of citizens of less and least developed countries than do non-taxed based alternative proposals, such as temporary bans on migration. While the proposal cannot hope to completely solve the problems that arise in relation to brain drain – no approach can do this – it does provide a straightforward way to ameliorate the problems that arise from it without placing significant financial or liberty burdens on already less advantaged people from the developing world.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3226855

In this short paper I hope to use some ideas drawn from the theory and practice of... more In this short paper I hope to use some ideas drawn from the theory and practice of civil disobedience to address one of the most difficult questions in immigration theory, one rarely addressed by philosophers or other theorists working on the topic: How should we respond to people who violate immigration law? I will start with what I take to be the easiest case for my approach—that of so-called “Dreamers”—unauthorized immigrants in the US who were brought to this country while still children (often as infants) and who have spent the majority of their lives in the US. Members of this group have engaged in wide-scale protests, making the civil
disobedience paradigm all the more plausible. I will then move on to the case of unauthorized immigrants who have engaged in protests, but who do not fall into the “Dreamer” category. Finally, I will consider whether thinking about immigration law violations from the perspective of civil disobedience—and the proper response to that—can help us think about immigration enforcement more generally.

This is a short introduction to a book symposium on Paul Gowder's recent book, _The Rule of Law i... more This is a short introduction to a book symposium on Paul Gowder's recent book, _The Rule of Law in thee Real World_ (Cambridge University Press, 2016). The book symposium will appear in the St. Luis University Law Journal, 62 St. Louis U. L.J., -- (2018), with commentaries on Gowder's book by colleen Murphy, Robin West, Chad Flanders, and Matthew Lister, along with replies by Paul Gowder.

This is an introduction to an interview conducted with me by Richard Marshall for 3AM Magazine. ... more This is an introduction to an interview conducted with me by Richard Marshall for 3AM Magazine. Please follow the link below for the full interview.

'The questions that are most interesting are ones about how our duties or obligations change when we have different sorts of interaction with people in different countries, and what this says about our domestic obligations as well. If moving a factory to a poor country will help people who are much less well off than those in the sending country, is that a sufficient reason to do it? If poorer countries are better able to compete in the global market and so become wealthier by taking advantage of labor and safety standards that are close to those that countries like the U.S. had in the mid to late 19th Century, when the U.S. was rapidly industrializing, is this morally problematic?' 'What can be required of immigrants once they are admitted? In most cases I'd say that we cannot ask any more of them then we ask of citizens – that they be law abiding, and that they try their best to engage in reciprocal fairness. The view is in conflict with arguments from people like David Miller or Noah Pickus (among others), that societies can and should require certain sorts of actions from immigrants.'

Alien Ideas: Review of Strangers in our Midst: The Political Philosophy of Immigration, by David Miller

David Miller, Professor of Politics at Oxford University, has long been one of the most import... more David Miller, Professor of Politics at Oxford University, has long been one of the most important and interesting contributors to political theory and philosophy. He is well known for insisting on the mutual relevance of philosophical reflection and political practice, an approach well captured by the title of his recent book, Justice for Earthlings. In his most recent book, Strangers in our Midst: The Political Philosophy of Immigration, Miller revises and extends the work he has been doing for several years now on immigration. The result is a short yet rich defense of the right of states to control their own immigration policy.

To read my full review of Miller's book, which appeared in Aug. 2016 in The New Rambler Review, please follow the link below.

http://newramblerreview.com/book-reviews/philosophy/alien-ideas

For many years now Allen Buchanan has been one of the most important theorists working on the phi... more For many years now Allen Buchanan has been one of the most important theorists working on the philosophy of human rights, producing a large number of papers and two books significantly devoted to the topic. In the work under consideration in this symposium, Buchanan breaks new ground by examining what he claims to be the “heart” of international human rights practice – the international legal human rights (“ILHR”) system, subjecting it to moral and philosophical analysis and criticism. Buchanan's book was the subject of an author meets critics session sponsored by the APA Committee on Law and Philosophy at the 2015 Pacific APA Meeting. The following paper introduces the resulting special issue of the journal, _Law and Philosophy_, summarizing Buchanan's important contribution and criticisms by William Talbot, Brooke Ackerley, Erin Kelly, and Mathias Risse, as well as Buchanan's replies.

Empirical Desert, Individual Prevention, and Limiting Retributivism: A Reply

"A number of articles and empirical studies over the past decade, most by Paul Robinson and co-au... more "A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and punishment rules reflect lay intuitions of justice – "empirical desert" – as a means of enhancing the system's moral credibility. In a recent article, Christopher Slobogin and Lauren Brinkley-Rubinstein (SBR) report seven sets of studies that they argue undermine these claims of empirical desert and moral credibility and instead support SBR's proposed distributive principle of "individual prevention," a view that focuses on an offender's future dangerousness rather than on his perceived desert.

The idea that there is a relationship between the criminal law's reputation for justness and its crime-control effectiveness did not originate with Robinson and his co-authors. Rather, it has been a common theme among a wide range of punishment theory scholars for many decades. A particularly important conclusion of recent Robinson studies, however, is their confirmation that this relationship is a continuous one: even small nudges in moral credibility can produce corresponding changes in the community's deference to the criminal law. This is important because it shows that even piecemeal changes or changes at the margin – as in reforming even one unjust doctrine or procedure – can have real implications for crime-control. SBR's studies, rather than contradicting the crime-control power of empirical desert, in fact confirm it. Further, SBR's studies do not provide support for their proposed "individual prevention" distributive principle, contrary to what they claim.

While SBR try to associate their principle with the popular "limiting retributivism" adopted by the American Law Institute in its 2007 amendment of the Model Penal Code, in fact it is, in many respects, just the reverse of that principle. With limiting retributivism, the Model Code's new provision sets desert as dominant, never allowing punishment to conflict with it. SBR would have "punishment" essentially always set according to future dangerousness; it is to be constrained by desert only when the extent of the resulting injustices or failures of justice is so egregious as to significantly delegitimize the government and its law. This ignores the fact that even minor departures from justice may have an important cumulative effect on the system as a whole. What SBR propose – essentially substituting preventive detention for criminal justice – promotes the worst of the failed policies of the 1960s, where detention decisions were made at the back-end by "experts," and conflicts with the trend of the past several decades of encouraging more community involvement in criminal punishment, not less."

Justice and Temporary Labor Migration

Temporary labor migration programs have been among the most controversial topics in discussions o... more Temporary labor migration programs have been among the most controversial topics in discussions of immigration reform. They have been opposed by many, perhaps most, academics writing on immigration, by immigration reform activists, and by organized labor. This opposition has not been without some good reasons, as many historical temporary labor migration programs have led to significant injustice and abuse. However, in this paper I argue that a well-crafted temporary labor migration program is both compatible with liberal principles of justice and likely to be an important part of a sensible immigration policy for the near future, at least. I show how the many injustices and high potential for abuse of earlier programs may be avoided. I also show good reason to favor a well-crafted temporary labor migration program over either the more likely alternative outcome of officially tight borders (which would almost certainly maintain our current dependence on large-scale unauthorized immigration) and the much less likely option of nearly open borders. As increased labor migration of all sorts is an intrinsic part of increased economic globalization, it is especially important to craft guidelines for just temporary labor migration programs if we are to both gain the advantages of globalization and protect the rights of workers.

(To download this paper, please use the link to SSRN given below.)

LGBTQ ASYLUM AND REFUGEE PROTECTION: PROBLEMS AND PROSPECTS

Capital Univesity Law Review, 2024

Australian Politics at a Crossroads: Prospects for Change, 2024

New Criminal Law Review: An International and Interdisciplinary Journal, 2014

Saint Louis University law journal, 2018

Law and Philosophy, 2010

Saint Louis University law journal, 2018

Canadian Journal of Law and Jurisprudence, 2022

Philosophy Compass, 2020

The Political Philosophy of Refuge; David Miller & Christine Straehle (eds.), Cambridge University Press, 2020

Sovereignty and the New Executive Authority, 2019

Please download the full paper from SSRN here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3372640

St. Louis University Law Journal, 2017

St. Louis University Law Journal, Vol. 62, No. 1, 2017 This paper proposes a novel use of tax ... more St. Louis University Law Journal, Vol. 62, No. 1, 2017

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3226855

Alien Ideas: Review of Strangers in our Midst: The Political Philosophy of Immigration, by David Miller

To read my full review of Miller's book, which appeared in Aug. 2016 in The New Rambler Review, please follow the link below.

http://newramblerreview.com/book-reviews/philosophy/alien-ideas

Empirical Desert, Individual Prevention, and Limiting Retributivism: A Reply

Justice and Temporary Labor Migration

(To download this paper, please use the link to SSRN given below.)

Ethics, 2021

For several years Michael Blake has been among the most important contributors to the philosophic... more For several years Michael Blake has been among the most important contributors to the philosophical literature on immigration. This book is therefore greatly anticipated, and develops a number of fruitful arguments. Although I will argue that the account is unsuccessful or incomplete at key points, it's clearly an important work of relevance to those working on immigration, as well as to political philosophers more generally. In particular, Blake provides powerful arguments against the claim that "open borders" are required by liberal principles of justice, develops his own "jurisdictional" account justifying immigration restrictions and the acceptable limits to these restrictions, and, in the most interesting and novel part of the books, discusses the role of virtues and values other than justice in relation to immigration policy, focusing specifically on the virtue of mercy. This last section of the book has potential for starting a rewarding line of research for political philosophers working on many topics, not just immigration.