In Contesting Immigration Policy in Court, Leila Kawar explains how immigration rights legal advocacy emerged through coherent, parallel networks in American and French legal communities, in similar ways at around the same time. From those beginnings, the book then traces divergent paths by which activist communities in the two countries were constrained by legal institutions, and how interactions that followed also began to shape legal cultures (and in turn changed those same institutions). The larger point she makes is that not only were immigrant rights constructed as a discrete legal concept, but that doing so then changed the two nations’ broader legal and social structures, at multiple levels.
Kawar recounts how during the late 1960s and early 1970s increasing demand for legal defense from migrant networks (like the Haitian Refugee Project in the U.S. or the Cimade in France) met with a large, independent supply of law graduates who saw their work on behalf of migrants as part of the era's larger liberation struggles, and who saw organizing as a principled end in and of itself. This happened either through new networks like the Groupe d'information et de soutien des immigrés (GISTI) in France or within existing activist legal organizations, like the National Lawyers Guild in the U.S. Small cadres of immigration lawyers and advocates had existed even before this time, but a rise in demand for legal practice, in a context of political dissent, caused immigrant advocacy as a legal concept to emerge directly into activist, organized networks. Kawar contends that a parallel restrictionist trend in the two countries’ immigration policies accelerated this process, although this point is made in less detail and may not be necessary to explain the trends that followed.
While the emergence of these networks shared many similarities across the two countries, the manner in which they then began to engage with their respective countries’ legal institutions diverged at an early point, reflecting the context-specific political content of the previous era's political mobilization. For example, American migration activists were most often victorious when they showed that individual migrants had claims based on historical discrimination, while French victories came when broader, systemic tendencies toward administrative overreach could be shown. The two countries also diverged in how the legal activist communities were institutionalized following their emergence. While both become permanent features of the legal landscape, opportunity structures in the American legal field allowed several groups to directly copy the model of the public interest law firm, while French counterparts were forced to develop a new model, leading to GISTI's key role as an organizing node for immigrant rights activism. In the former case, this resulted in groups with an institutional need to demonstrate effectiveness and remain solvent, while in the latter, the organization that emerged remained weaker in its control over highly independent members’ actions.
Kawar ends with a deep tracing of processes that legal organizations have used in each country to further the defense of immigrant rights. Based on extensive interviews and oral histories, the narrative reveals differences in repertoires open to activists in the two contexts. In the United States, adversarial legal structures and an emphasis on mitigating effects of discrimination histories pushed immigrant advocates to specific types of legal procedure. First, this involved a sustained, class-action based movement engaged largely with the Immigration and Naturalization Service (INS). When this pathway was made more difficult by legislation, immigrant rights advocates turned to a strategy of test cases, working upward from the individual to the general principle.
In France, the Conseil d'Etat served as an intermediary body and both immigration activists and enforcement agencies found themselves pursuing strategies of deference to this court. However, after the Conseil d'Etat became recognized as an effective partner in state governance, appeals to general legal principle, which it deemed successful were not just used to overturn administrative action, but were adopted into administrative policy whenever this court was consulted—which is on most matters, and increasingly so. Kawar also points to interactions between the French courts and European courts (the European Court of Justice and the European Court of Human Rights), and suggests that the Conseil d'Etat’s increasing intervention on migration questions was a rare opportunity to restore some of the French national judiciary's relative power, giving the court an incentive to invite migration cases into its jurisdiction, and giving activists further reason to pursue immigration litigation.
Despite its richly detailed narrative, this book is not overly dense; if anything, it could have been longer, and would still have been successful. Kawar's parallel narratives are well constructed and clearly written, giving the reader an overview of multiple institutional and legal constraints operating in each country. The focus is not on comparative details but rather on parallel evolution, so that a fuller account of relevant actors and paths not taken would have provided an even more plausible, positive case for the developments she traces—and it is clear that her extensive, structured qualitative research could have supported many additional narratives. The book offers a clear integration of legal culture and case framings, political institutions, and the literature on immigration policy. Kawar's description of differences between legal argumentation in the two countries is accessible even to the reader without a background in law, and clearly links back to the book's broader claims about how legal cultures affect social relations. In addition to its contributions to legal studies, Contesting Immigration Policy in Court helps lay readers understand how underlying norms of immigrant rights can be transformed in periods between legislative actions, and in turn shape subsequent rounds of legislation and juridical practice.
