Michael Kagan - Academia.edu (original) (raw)
Papers by Michael Kagan
The Department of Justice (DOJ) recently argued that immigrants who have not been legally admitte... more The Department of Justice (DOJ) recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment. This Essay explores the complicated and conflicted case law governing immigrants’ free speech rights, and argues that, contrary to the DOJ position, all people in the United States are protected by the First Amendment. Moreover, it argues that for reasons that have not been widely appreciated, Citizens United v. FEC offers significant doctrinal support for immigrant speech rights because it articulates a strong rule against speech discrimination based on identity rather than content.
Journal of Human Rights Practice, 2017
We show that there is a sequence of subsets of each discrete Heisenberg group for which the non-s... more We show that there is a sequence of subsets of each discrete Heisenberg group for which the non-singular ergodic theorem holds. The sequence depends only on the group; it works for any of its non-singular actions. To do this we use a metric which was recently shown by Le Donne and Rigot to have the Besicovitch covering property and then apply an adaptation of Hochman's proof of the multiparameter non-singular ergodic theorem. An exposition of how one proves non-singular ergodic theorems of this type is also included, along with a new proof for one of the key steps.
These papers provide a means for UNHCR staff, consultants, interns and associates, as well as ext... more These papers provide a means for UNHCR staff, consultants, interns and associates, as well as external researchers, to publish the preliminary results of their research on refugee-related issues. The papers do not represent the official views of UNHCR. They are also available
This article illustrates the struggles of Sudanese refugees in Northern Uganda and their uncertai... more This article illustrates the struggles of Sudanese refugees in Northern Uganda and their uncertain future as they await the result of peace talks between the Sudanese government and the Sudanese Peoples’ Liberation Army
Many challenges surrounding refugee protection relate to a de facto shift of responsibility from ... more Many challenges surrounding refugee protection relate to a de facto shift of responsibility from sovereign governments to the UN Refugee Agency (UNHCR) to directly administer refugee policy. This phenomenon is legally anomalous, and it is UNHCR policy to avoid the operation of such "parallel structures." Yet the existence of a UN "surrogate state" offers important advantages to some host governments, which makes state-to-UNHCR responsibility shift difficult to reverse. Using the Arab Middle East as a case study, this article argues that, while not ideal, UNHCR's state substitution role offers important symbolic and material benefits to governments that host refugees and should not always be treated as an anomaly. Addressing challenges inherent in state-to-UN responsibility shift will be a key task if any government in the wake of the Arab Spring seeks to improve its system of refugee reception and protection. Responsibility shift can sometimes offer a more viable political foundation for refugee protection than conventional notions of state responsibility.
, President Obama ordered a package of immigration policy reforms by the Department of Homeland S... more , President Obama ordered a package of immigration policy reforms by the Department of Homeland Security and Department of Justice, including promises of work permits for parents of children who are U.S. citizens or legal residents.' The November announcements expanded a program the president announced in 2012, known as Deferred Action for Childhood Arrivals (DACA), through which certain young immigrants may request two-year promises of deferred action and employment authorization. 2 Even before that, President Obama's Director of Immigration and Customs Enforcement John Morton issued memoranda (known as the Morton Memos) summarizing factors that immigration enforcement officers should use in the exercise of prosecutorial discretion. 3 With legislative immigration reform stymied in Congress, broad executive action has been the Obama administration's signature contribution to American immigration policy. The centerpiece of Obama's immigration actions has been expanded use of "deferred action" policies by which the Department of Homeland Security promises to refrain from seeking the deportation of certain people and offers them authorization to seek employment. The Obama administration has also made much more transparent how it categorizes and prioritizes noncitizens for immigration enforcement purposes. The result is that many immigrants who are unlawfully present according to the Immigration and Nationality Act
Citizens United v. FEC articulated a pillar of free speech doctrine that is independent from the ... more Citizens United v. FEC articulated a pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. It is possible that protection from speaker identity discrimination had long been implicit in free speech case law, but has now been given more full-throated articulation. Or it is possible that the Court has actually introduced a conceptually new free speech doctrine. Either way, Citizens United has the potential to reshape free speech law far beyond the corporate speech and campaign finance contexts. This Article explores the basis of the speaker discrimination doctrine and points to potential implications. It shows that while the speaker discrimination principle had not been previously articulated clearly, it is a convincing explanation for much earlier First Amendment cases and thus should not be understood as an entirely new development. The speaker discrimination principle holds considerable potential to clarify otherwise confused areas of free speech jurisprudence. In particular, the bar against identity discrimination should operate as a limiting principle on forum-based speech restrictions. To illustrate this potential, this Article examines the potential application of speaker discrimination to school speech cases, especially those involving off-campus speech. At the same time, the Court's embrace of speaker discrimination raises important questions in critical legal theory about why the identity of a speaker might matter in addition to the substance of what a person chooses to say.
The Center for Migration and Refugee Studies (CMRS), previously known as the Forced Migration and... more The Center for Migration and Refugee Studies (CMRS), previously known as the Forced Migration and Refugee Studies program (FMRS), at the American University in Cairo (AUC) was established in 2000 as a program of education, research, and outreach on refugee issues and was developed in 2008 into a regional center that encompasses all forms of international mobility, whether voluntary or forced, economic or political, individual or collective, temporary or permanent. CMRS offers an MA in Migration and Refugee Studies (MRS) in addition to a Graduate Diploma in Forced Migration and Refugee Studies, and a specialized diploma in psychosocial issues of refugees. CMRS's research program includes a systematic and comparative inventory of the situation regarding migration and refugee movements across the MEA, as well as in-depth studies of emerging issues in the region. Finally, CMRS' outreach includes disseminating knowledge on migration and refugee issues beyond the university's gates, as well as providing a range of educational services to refugee communities. The Center for Migration and Refugee Studies Working Paper Series is a forum for sharing information on migration and refugee issues in Egypt and the region of the Middle East and North Africa. This working paper, by a former International Human Rights Fellow at the American University in Cairo, is addressing the challenges of refugee status determination when the asylum seeker is a member of a persecuted religious minority.
The long-standing doctrine of deferential review by appellate courts of findings of fact by admin... more The long-standing doctrine of deferential review by appellate courts of findings of fact by administrative agencies is seriously flawed for two main reasons. First, the most prominent justification for deference relies on the empirical assumption that first-instance adjudicators are best able to determine the truth because they can directly view witness demeanor. Decades of social science research has proven this assumption about the value of demeanor false. Second, in principle, the deference rule applies to all types of administrative adjudication, with no attention to the relative gravity of interests at stake in different types of cases or to the varying levels of actual expertise that different executive agencies bring to bear. These weaknesses are particularly acute in immigration appeals and help explain why the 2002 streamlining of the Board of Immigration Appeals has proven problematic for the ftderal courts. Appellate courts often take advantage of the inherent ambiguities of the deference doctrine to prevent unacceptable results, but this approach does little to repair the essential flaws in the doctrine and exposes courts to criticism that they are acting arbitrarily. A more coherent way to understand how appellate courts use deference in practice would be to apply a balancing analysis similar to the procedural due process doctrine.
In this working paper, refugee law expert Michael Kagan develops the idea of conflicting rights a... more In this working paper, refugee law expert Michael Kagan develops the idea of conflicting rights as a means of addressing Israeli objections to Palestinian refugee return. Rather than explore Palestinian arguments for the right of return, this paper starts from the assumption that the right of return exists and must be accepted by Israel in order to reach a just peace that complies with international law.
This report identifies flaws and shortcomings in the international protection regime for Palestin... more This report identifies flaws and shortcomings in the international protection regime for Palestinian refugees and highlights the lack of any international human rights standards in most host Arab states’ treatment of Palestinian refugees. The report focuses on Palestinians in Lebanon, but also alerts us to the existence of wider, related issues and policies that need to be examined regionally and globally, in terms of their impact on Palestinian refugees. The report calls for further research to be done.
Refugee Survey Quarterly, 2009
... 18 Akram, op. cit., 174. ... cit., para. 5, 8, 10. ↵ 22 UN High Commissioner for Refugees (UN... more ... 18 Akram, op. cit., 174. ... cit., para. 5, 8, 10. ↵ 22 UN High Commissioner for Refugees (UNHCR), “UNHCR Position on the International Protection Needs of Asylum Seekers from Lebanon Displaced as Result of the Recent Conflict”, Geneva, UNHCR, 2006, FN 12. ...
Journal of Refugee Studies, 2009
... similarly short and offers only a skeletal legal argument. The most complete and thorough arg... more ... similarly short and offers only a skeletal legal argument. The most complete and thorough argument disputing the right of return is offered by Bar-Ilan University's Yaffa Zilbershats (2007). To argue against the right of return in ...
Journal of Refugee Studies, 2005
... Rights in Exile: Janus-Faced Humanitarianism. By Guglielmo Verdirame and Barbara Harrell-Bond... more ... Rights in Exile: Janus-Faced Humanitarianism. By Guglielmo Verdirame and Barbara Harrell-Bond (with Zachary Lomo and Hannah Garry). New York, Oxford: Berghahn Books, 2005. 480 pp. 89.95/£55,ISBN1571815260hb;89.95/£55, ISBN 1 57181 526 0 hb; 89.95/£55,ISBN1571815260hb;29.95/£19.95, ISBN 1 57181 527 9 pb. ...
The Department of Justice (DOJ) recently argued that immigrants who have not been legally admitte... more The Department of Justice (DOJ) recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment. This Essay explores the complicated and conflicted case law governing immigrants’ free speech rights, and argues that, contrary to the DOJ position, all people in the United States are protected by the First Amendment. Moreover, it argues that for reasons that have not been widely appreciated, Citizens United v. FEC offers significant doctrinal support for immigrant speech rights because it articulates a strong rule against speech discrimination based on identity rather than content.
Journal of Human Rights Practice, 2017
We show that there is a sequence of subsets of each discrete Heisenberg group for which the non-s... more We show that there is a sequence of subsets of each discrete Heisenberg group for which the non-singular ergodic theorem holds. The sequence depends only on the group; it works for any of its non-singular actions. To do this we use a metric which was recently shown by Le Donne and Rigot to have the Besicovitch covering property and then apply an adaptation of Hochman's proof of the multiparameter non-singular ergodic theorem. An exposition of how one proves non-singular ergodic theorems of this type is also included, along with a new proof for one of the key steps.
These papers provide a means for UNHCR staff, consultants, interns and associates, as well as ext... more These papers provide a means for UNHCR staff, consultants, interns and associates, as well as external researchers, to publish the preliminary results of their research on refugee-related issues. The papers do not represent the official views of UNHCR. They are also available
This article illustrates the struggles of Sudanese refugees in Northern Uganda and their uncertai... more This article illustrates the struggles of Sudanese refugees in Northern Uganda and their uncertain future as they await the result of peace talks between the Sudanese government and the Sudanese Peoples’ Liberation Army
Many challenges surrounding refugee protection relate to a de facto shift of responsibility from ... more Many challenges surrounding refugee protection relate to a de facto shift of responsibility from sovereign governments to the UN Refugee Agency (UNHCR) to directly administer refugee policy. This phenomenon is legally anomalous, and it is UNHCR policy to avoid the operation of such "parallel structures." Yet the existence of a UN "surrogate state" offers important advantages to some host governments, which makes state-to-UNHCR responsibility shift difficult to reverse. Using the Arab Middle East as a case study, this article argues that, while not ideal, UNHCR's state substitution role offers important symbolic and material benefits to governments that host refugees and should not always be treated as an anomaly. Addressing challenges inherent in state-to-UN responsibility shift will be a key task if any government in the wake of the Arab Spring seeks to improve its system of refugee reception and protection. Responsibility shift can sometimes offer a more viable political foundation for refugee protection than conventional notions of state responsibility.
, President Obama ordered a package of immigration policy reforms by the Department of Homeland S... more , President Obama ordered a package of immigration policy reforms by the Department of Homeland Security and Department of Justice, including promises of work permits for parents of children who are U.S. citizens or legal residents.' The November announcements expanded a program the president announced in 2012, known as Deferred Action for Childhood Arrivals (DACA), through which certain young immigrants may request two-year promises of deferred action and employment authorization. 2 Even before that, President Obama's Director of Immigration and Customs Enforcement John Morton issued memoranda (known as the Morton Memos) summarizing factors that immigration enforcement officers should use in the exercise of prosecutorial discretion. 3 With legislative immigration reform stymied in Congress, broad executive action has been the Obama administration's signature contribution to American immigration policy. The centerpiece of Obama's immigration actions has been expanded use of "deferred action" policies by which the Department of Homeland Security promises to refrain from seeking the deportation of certain people and offers them authorization to seek employment. The Obama administration has also made much more transparent how it categorizes and prioritizes noncitizens for immigration enforcement purposes. The result is that many immigrants who are unlawfully present according to the Immigration and Nationality Act
Citizens United v. FEC articulated a pillar of free speech doctrine that is independent from the ... more Citizens United v. FEC articulated a pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. It is possible that protection from speaker identity discrimination had long been implicit in free speech case law, but has now been given more full-throated articulation. Or it is possible that the Court has actually introduced a conceptually new free speech doctrine. Either way, Citizens United has the potential to reshape free speech law far beyond the corporate speech and campaign finance contexts. This Article explores the basis of the speaker discrimination doctrine and points to potential implications. It shows that while the speaker discrimination principle had not been previously articulated clearly, it is a convincing explanation for much earlier First Amendment cases and thus should not be understood as an entirely new development. The speaker discrimination principle holds considerable potential to clarify otherwise confused areas of free speech jurisprudence. In particular, the bar against identity discrimination should operate as a limiting principle on forum-based speech restrictions. To illustrate this potential, this Article examines the potential application of speaker discrimination to school speech cases, especially those involving off-campus speech. At the same time, the Court's embrace of speaker discrimination raises important questions in critical legal theory about why the identity of a speaker might matter in addition to the substance of what a person chooses to say.
The Center for Migration and Refugee Studies (CMRS), previously known as the Forced Migration and... more The Center for Migration and Refugee Studies (CMRS), previously known as the Forced Migration and Refugee Studies program (FMRS), at the American University in Cairo (AUC) was established in 2000 as a program of education, research, and outreach on refugee issues and was developed in 2008 into a regional center that encompasses all forms of international mobility, whether voluntary or forced, economic or political, individual or collective, temporary or permanent. CMRS offers an MA in Migration and Refugee Studies (MRS) in addition to a Graduate Diploma in Forced Migration and Refugee Studies, and a specialized diploma in psychosocial issues of refugees. CMRS's research program includes a systematic and comparative inventory of the situation regarding migration and refugee movements across the MEA, as well as in-depth studies of emerging issues in the region. Finally, CMRS' outreach includes disseminating knowledge on migration and refugee issues beyond the university's gates, as well as providing a range of educational services to refugee communities. The Center for Migration and Refugee Studies Working Paper Series is a forum for sharing information on migration and refugee issues in Egypt and the region of the Middle East and North Africa. This working paper, by a former International Human Rights Fellow at the American University in Cairo, is addressing the challenges of refugee status determination when the asylum seeker is a member of a persecuted religious minority.
The long-standing doctrine of deferential review by appellate courts of findings of fact by admin... more The long-standing doctrine of deferential review by appellate courts of findings of fact by administrative agencies is seriously flawed for two main reasons. First, the most prominent justification for deference relies on the empirical assumption that first-instance adjudicators are best able to determine the truth because they can directly view witness demeanor. Decades of social science research has proven this assumption about the value of demeanor false. Second, in principle, the deference rule applies to all types of administrative adjudication, with no attention to the relative gravity of interests at stake in different types of cases or to the varying levels of actual expertise that different executive agencies bring to bear. These weaknesses are particularly acute in immigration appeals and help explain why the 2002 streamlining of the Board of Immigration Appeals has proven problematic for the ftderal courts. Appellate courts often take advantage of the inherent ambiguities of the deference doctrine to prevent unacceptable results, but this approach does little to repair the essential flaws in the doctrine and exposes courts to criticism that they are acting arbitrarily. A more coherent way to understand how appellate courts use deference in practice would be to apply a balancing analysis similar to the procedural due process doctrine.
In this working paper, refugee law expert Michael Kagan develops the idea of conflicting rights a... more In this working paper, refugee law expert Michael Kagan develops the idea of conflicting rights as a means of addressing Israeli objections to Palestinian refugee return. Rather than explore Palestinian arguments for the right of return, this paper starts from the assumption that the right of return exists and must be accepted by Israel in order to reach a just peace that complies with international law.
This report identifies flaws and shortcomings in the international protection regime for Palestin... more This report identifies flaws and shortcomings in the international protection regime for Palestinian refugees and highlights the lack of any international human rights standards in most host Arab states’ treatment of Palestinian refugees. The report focuses on Palestinians in Lebanon, but also alerts us to the existence of wider, related issues and policies that need to be examined regionally and globally, in terms of their impact on Palestinian refugees. The report calls for further research to be done.
Refugee Survey Quarterly, 2009
... 18 Akram, op. cit., 174. ... cit., para. 5, 8, 10. ↵ 22 UN High Commissioner for Refugees (UN... more ... 18 Akram, op. cit., 174. ... cit., para. 5, 8, 10. ↵ 22 UN High Commissioner for Refugees (UNHCR), “UNHCR Position on the International Protection Needs of Asylum Seekers from Lebanon Displaced as Result of the Recent Conflict”, Geneva, UNHCR, 2006, FN 12. ...
Journal of Refugee Studies, 2009
... similarly short and offers only a skeletal legal argument. The most complete and thorough arg... more ... similarly short and offers only a skeletal legal argument. The most complete and thorough argument disputing the right of return is offered by Bar-Ilan University's Yaffa Zilbershats (2007). To argue against the right of return in ...
Journal of Refugee Studies, 2005
... Rights in Exile: Janus-Faced Humanitarianism. By Guglielmo Verdirame and Barbara Harrell-Bond... more ... Rights in Exile: Janus-Faced Humanitarianism. By Guglielmo Verdirame and Barbara Harrell-Bond (with Zachary Lomo and Hannah Garry). New York, Oxford: Berghahn Books, 2005. 480 pp. 89.95/£55,ISBN1571815260hb;89.95/£55, ISBN 1 57181 526 0 hb; 89.95/£55,ISBN1571815260hb;29.95/£19.95, ISBN 1 57181 527 9 pb. ...