Why I Write About History to Change the Law

The powerful effect of story on our sacred values about immigration

Our family (and my first airplane trip), 1974

I’m a lawyer. I teach law, in a law school. I still practice law, supervising law students as they represent clients in immigration cases. When I write, my goal is to make the law work better.

So why write about history?

The answer has everything to do with the subject I write about: immigration.

This Is Your Brain on Immigration

In a 2020 survey, most respondents reported holding sacred values around immigration, meaning they considered their opinions about immigration to be absolute and non-negotiable.

In the study, social scientists Nichole Argo and Kate Jassin surveyed a nationally representative sample of 1,370 U.S. citizens about their opinions on fourteen immigration issues. All fourteen issues were held sacred by significant percentages of survey respondents, on both the right and the left. For example, those with open stances on immigration most often held sacralized stances around stopping family separation (47%), being a nation of immigrants instead of preserving a white and Christian culture (37%), and stopping construction of the border wall (33%). Those with restrictive stances most often sacralized withholding public benefits from unauthorized immigrants (33%), stopping undocumented immigration (22%), and continuing to build the border wall (21%).

If asked to negotiate trade-offs of sacred values, people respond with emotions such as anger, disgust, and refusal to deal further with anyone involved. There’s a reason for that. Neurologists have demonstrated that we process questions about sacred values in different parts of the brain (the left temporoparietal junction and the ventrolateral prefrontal cortex) than we use when conducting cost-benefit decisionmaking (the dorsolateral prefrontal cortex). Imagine the difference between someone offering to buy your car for $5000 and someone offering to buy your child for $5000. You’ve just experienced the neurological difference between negotiating around routine values versus negotiating around sacred values.

If immigration values are often sacred values, then changing immigration law requires a delicate hand. Failure to heed them will result in the listener reacting by disengaging or even advocating violent adherence to the sacred value. As Argo and Jassin wrote, “sacred values must be acknowledged with respect. If they are not central to an issue, they must be avoided; if they are central to an issue, it may be possible to reframe them — but they can never be negotiated by using incentives or disincentives.”

How I Got Here

I came to immigration law by accident when my law school needed a replacement for a retiring colleague, James Friedberg, who had started our immigration law clinic. The timing heightened the dilemma: Donald Trump had just won the presidency on a platform of restricting immigration. While West Virginia had a small immigrant population, it had an almost nonexistent immigration law bar. Without the clinic, most immigrants in the state would have had few or no options for a lawyer to help them present their claims to remain in the country. I volunteered to help.

Working with clinic co-founder Robert S. Whitehill, an experienced Pittsburgh-based immigration lawyer, I began the process of learning what I didn’t know about immigration law and clinical legal education. That turned out to be like climbing Mt. Everest and Mt. Kilimanjaro at the same time. Though I had experience with many different areas of law and with high-stakes litigation, nothing compared to the morass of immigration law. The system seemed designed to defeat through sheer insanity what it could not accomplish through coherent restriction. Learning to play this Kafka-esque chess game consumed all my time and attention for years. Finding the right way to teach students how to play it took even longer. (No doubt I’ll look back after another seven years and see how much I still had to learn.)

As a newcomer to immigration law, I was frequently stunned by what I saw in the system. For starters, I could not explain why the immigration courts, which decide questions of people’s liberty and sometimes their lives, were located in the Department of Justice, the nation’s law enforcement department. As a longtime scholar of administrative law, that arrangement made no sense to me.

As I puzzled over questions like these, I kept coming back to one question: Why? When were such decisions made, and by whom? Who contested them, and how? What forces weighed on the other side to result in such unsatisfactory compromises? Those questions led me to write a book, The Accidental History of the U.S. Immigration Courts, as I explored the structure of the immigration court system. That search led me to the personalities and politics of the FDR administration on the eve of World War II, and then the George W. Bush administration in the response to 9/11.

As it turned out, the stories unlocked a trap I’d unwittingly stumbled into when I offered to take on immigration law.  

An American Tale

I never intended to practice or teach immigration law. As a law student, I never took an immigration law class. I didn’t think immigration law had much to do with me.

Looking back, I wonder how I could have missed it.

My mother, Cassandra Mivec, was born in Ohio in 1943. Her father had immigrated from Slovenia (then part of Yugoslavia) in 1929. Her mother grew up in a Slovenian immigrant family in the ethnic villages east of Pittsburgh. They both loved music and they met, we think, at a Slovenian dance hall in Lake Milton, Ohio.

My father, Stephen Peck, was born in Bethesda, Maryland, while his father worked as a labor reporter in Washington. My grandfather had quit college to take the newspaper job – he was lucky to get any work during the Depression. No one remembers now when or from where their forbears came to this country, but they probably worked their way west from Virginia to Indiana. They believed in staying straight, working hard, and asking for nothing.

Immigration, I soon realized, presented me with an existential dilemma. Although superficially I tend to resemble my mother’s family in both appearance and politics, my father gave me my love of writing and my reverence for government in all its imperfection. We often butted heads, especially when I was younger, but his conservative instincts formed my thinking in more ways than I probably know. Though they’re both gone now, I love both of my parents profoundly, and what’s more, they loved each other.

Approaching Sacred Values with Respect

This is all very inconvenient for an immigration lawyer. I would love to focus on fighting for the values I hold most sacred. I admire my colleagues who do, and I think their contributions are invaluable.

But for me, it’s not that simple. I’m acutely aware of the other side, even if I often disagree with it. In some ways I was raised by it. I can’t dismiss it as evil or ignorant.

Immigration issues are complex – if they weren’t, we’d have solved them already. I felt it in my gut when Jose Antonio Vargas wrote that the boys in the Texas detention facility with him kept repeating one word – miedo (“fear”). But I can’t imagine what a world of completely open borders would look like, either, or how that would solve the problems without creating new ones.

What do you do when you have no choice existentially but to approach conflicting sacred values with respect?

I found the answer in stories. In stories, we find human lives and events and loyalties and frailties just as complex and conflicted as our own. By telling stories, we have the privilege of seeing human lives from 10,000 feet – perhaps coming just a tiny bit closer to the way God sees us. From that vantage point, sacred values often remain sacred, but I usually find that the edges blur a little.

So in my day job, I read and teach and write and argue about the law. But when I have a moment to retreat, to make sense of what doesn’t make sense, I take refuge in stories. From there, sometimes, we can become something we’ve lost – not red, not blue, just human.

Only from there, I believe, can the law start to change. In fact, from there, the law tends to change by itself, because the law is nothing more than a reflection of us.