Rethinking the rule of law and administrative justice from managed to neoliberal capitalism in the United States : evidence from the case of temporary labor migrant regulation (1942-2011)

Abstract

What can the case of temporary labor migration regulation tell us about the rule of law and administrative justice from managed to neoliberal capitalism in the United States? This paper demonstrates how the enforcement of temporary migrant labor contracts from state-led economic planning into a market-driven order (1942-2011) challenges dominant understandings of economic rights in jurisprudential theory and histories of the American administrative state. Contrary to existing conceptualizations of the managed capitalist state as a rights-abrogator, I show how regulatory agencies created and backed private contracts (1942-64). I subsequently trace what happened to this legal form through the roll-back of managed migration in the post-1964 period. Counterintuitively, from the perspective of temporary labor migration, neoliberalism is not about the strengthening of private contract, but contract's changing form in kind and process. Through the retreat of managed migration, private contracts are deformalized and subsumed to a fragmented, "bottom-up" administrative justice, empowering employers in the legal process.