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July 1, 2015

What the Supreme Court Should Have Said in the Confederate Flag Texas License Plate Case

Cross-posted from Justia's Verdict.

Display of the Confederate battle flag on government-owned property has certainly gotten a lot of attention of late. The Supreme Court ruled 5-4 a few weeks ago, in Walker v. Texas Division, Sons of Confederate Veterans, Inc., that Texas could, consistent with the First Amendment, reject a specialty license plate design submitted by a non-profit entity due to the design’s prominent use of the Confederate battle flag, even though Texas had approved a disparate array of some 350 other designs submitted by various individuals and organizations depicting messages ranging from “I’d Rather Be Golfing” to the names of a number of (out-of-state) universities to “MIGHTY FINE” to “GET IT SOLD WITH RE/MAX.”

And, in the wake of the Charleston church shootings that occurred a day before Walker was handed down, there have been calls made and steps taken by (Republican as well as Democrat) elected leaders to remove the Confederate battle symbol from statehouses in places like Alabama and South Carolina.

Interestingly, the latter episode sheds light on how the Court should have handled the former—the Walker dispute. In short, the Court should have treated Walker more as a Confederate battle flag case, and less as a license plate case.

Why Justice Breyer’s Majority Opinion In Walker Is Unconvincing

Many able analysts, including some of my fellow Verdict columnists writing in other venues, have exposed some of the major shortcomings of Justice Breyer’s majority opinion, which holds that specialty license plates in Texas are “government speech,” such that the government is largely free to pick and choose—even on the basis of viewpoint—which messages shall be allowed on specialty plates mounted on Texas-registered vehicles. Justice Breyer’s opinion gives a few reasons why the Court believes specialty plates should be treated as government speech. First is that states have historically used license plates as a means of promoting government messages—such as a state’s motto or some iconic image of the state which its leaders want viewers to think of when the state comes to mind. Fair enough, but Justice Breyer is relying here on a prior era, and one in which Texas (and other states) had but a single, or a few, messages it allowed on any of the plates registered in the State. By opening up its license plate regime and approving over 350 disparate messages, Texas has changed the essential purpose (beyond identification of the car’s owner) of the license plate platform from government speech to private speech. And this is not a phenomenon unique to license plates. There might be a lot of public properties that once were used substantially for government speech, but that have been converted into limited or designated or nonpublic fora (where the government is no longer free to discriminate against particular viewpoints) by the government’s decision to open up the property so widely. And it is no response to a claim of improper viewpoint discrimination in any of these kinds of fora to say that the property was originally used for government speech.

The second argument Justice Breyer makes is that license plates are closely associated or identified with the state in the public’s mind. Justice Breyer adds that “a person who displays a message on a Texas license plate likely intend[s] to convey to the public that the State had endorsed the message. If not, the individual could simply display . . . a bumper sticker.” Again, that might have been true of Texas license plates in an early era, but as Justice Alito’s withering dissent points out, no remotely reasonable viewers would ever actually think, after driving Texas roads for even a short time, that Texas really supports messages like “Go [Michigan State] Spartans,” or “Roll [Alabama] Tide Roll.” Or that the person whose plate bears one of these messages actually chose the plate design over a bumper sticker in order to obtain a state imprimatur (as opposed to preferring a specialty plate over a sticker because of the permanence and cleanliness of a plate, and to avoid any stigma tied to the use of bumper stickers.) I also find it interesting that questions such as these are empirical ones, and yet the Court makes broad findings in this regard without any (easily obtainable) evidence. (This lack of empirical input concerning public perceptions was also a feature of another First Amendment case, Williams-Yulee v. Florida Bar, about which I wrote a column six weeks ago).

A Better Framing of the Issues Implicated by Walker

In spite of its analytic weaknesses, Justice Breyer’s opinion arrives at a result that many observers, on and off the Court, find intuitively correct. Can the Lone Star State really be forced to have the word “TEXAS” that runs accross the top of every license plate in the State appear just a few inches from the Confederate battle flag symbol? Walker, it is worth noting, was a rare case in which Justice Clarence Thomas joined the four “liberal” Justices to create a very unlikely 5-4 majority. Odd lineups like this usually suggest that something interesting is going on, but what might be the key to unlocking Walker?

For me, the critical fact in the case is one to which the Court gave virtually no attention—that the symbol at issue is not just an offensive one (representing, as it does, slavery, rebellion, and a combination of the two, whether or not it stands for other things as well.) It is a symbol that originated as government speech by, among other Confederate states, the State of Texas, and that is thus linked to those state governments, including Texas, who are responsible for its prominence and its (ugly) messages. The flag was adopted and used in battle by Confederate states from late 1861 until the fall of the Confederacy, and then utilized extensively by racist governors and other officials to resist desegregation during the Civil Rights movement. So even if Texas were required to permit racial slurs on specialty plates (a matter about which I’m not sure – perhaps Texas, because of its history concerning race, has a strong interest in separating itself from any racist message that, if attributed to the state, might raise equal protection problems), the present case is different: the Confederate battle flag is worse in this regard than a racial slur; it is akin to a racial slur that was adopted and previously used as a state’s motto.

Because Texas has a distinctive association with use of the Confederate flag, it has a distinctive (and non-censorial) reason to want to avoid improper attribution on its property, including its license plates. I am not saying that government owns the intellectual property rights to control the use of flag symbols—the famous Texas v. Johnson case invalidating a law prohibiting flag-burning rightly rejected that idea. Rather, because the risk of misattribution is greater with respect to the use on government property of symbols that had formerly been used by the government itself than it is with respect to other messages, the government has a correspondingly stronger reason (other than censorship) to regulate.

For example, if New Hampshire changed its motto from the traditional “Live Free or Die” message that has been appearing on its license plates for decades (and that was the subject of the other famous Supreme Court case involving a license plate, Wooley v. Maynard) because the State no longer embraced that principle, and it had a specialty plate scheme in which an applicant wanted that creed to physically appear near the words “NEW HAMPSHIRE,” the State would have a strong interest in rejecting that design to avoid any confusion.

If the approach I offer here had been the basis of the majority’s decision in Walker, various problems that Justice Breyer’s opinion creates going forward would have been avoided. If Texas specialty plates really are “government speech,” then how can the State approve and allow the design (which it has) bearing the words “Knights of Columbus,” a distinctively Catholic fraternal service organization? If people identify that design with lawmakers in Austin, isn’t there an Establishment Clause problem? And if the license plates are government (rather than private) speech, then Texas can reject a design bearing the words “Pro-Choice” even though it has already approved one bearing the words “Choose Life.” Does that kind of asymmetry make sense?

It may well be that the rationale I suggest today could, if adopted, mean that some states (i.e., those particularly associated with the Confederacy or racism) would have more latitude than others to reject the Confederate flag on specialty plate designs, and that the rejection by some states (that lack the historical association) would look like censorship, pure and simple. But even if that is true, we should remember that other equality-based constitutional doctrines are similarly contextual. For example, a jurisdiction that has engaged in racial discrimination may have more latitude to engage in race-based remedial action than one that hasn’t. The “government speech” rationale adopted by the Court may seem to create a cleaner line than the test I offer here, but in the long run it is (I suspect) less honest and will be more problematic in future disputes.

June 25, 2015

New Faculty Research: Legal Studies Research Paper Series, Vol. 17 No. 3

Here is a look at some of the most recent scholarship from UC Davis School of Law faculty from the Social Science Research Network's Legal Scholarship Network. Click through the links to download the works.

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

"Law and the Geography of Cyberspace"  
6 W.I.P.O.J., Issue 1 (2014)
UC Davis Legal Studies Research Paper No. 432

ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

The Internet was supposed to end geography. Anyone, anywhere could now run a newspaper, a search engine, a game service, and the world could access it. After millennia of geography dictating destiny, the world was now flat, and opportunity evenly distributed everywhere. Yet, a quick glance at the world's leading internet companies, from Facebook to Zillow, leads one remarkably often to the United States. In this article, I argue that law played a crucial role in creating the geography of cyberspace - specifically, that flexible intellectual property rules which permitted internet entrepreneurship in the United States proved a key ingredient in American commercial success on the internet.

"After the Revolution: An Empirical Study of Consumer Arbitration"  
Georgetown Law Journal, Vol. 104, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 436

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu
ANDREA CANN CHANDRASEKHER, University of California, Davis - School of Law
Email: andreacann@gmail.com

For decades, mandatory consumer arbitration has been ground zero in the war between the business community and the plaintiffs' bar. Some courts, scholars, and interest groups argue that the speed, informality, and accessibility of private dispute resolution create a conduit for everyday people to pursue claims. However, others object that arbitration's loose procedural and evidentiary rules dilute substantive rights, and that arbitrators favor the repeat playing corporations that can influence their livelihood by selecting them in future matters. Since 2010, the stakes in this debate have soared, as the U.S. Supreme Court has expanded arbitral power and mandated that consumers resolve cases that once would have been class actions in two-party arbitration. But although the Court's jurisprudence has received sustained scholarly attention, both its defenders and critics do not know how it has played out behind the black curtain of the extrajudicial tribunal.

This Article offers fresh perspective on this debate by analyzing nearly 5,000 complaints filed by consumers with the American Arbitration Association between 2009 and 2013. It provides sorely-needed information about filing rates, outcomes, damages, costs, and case length. It also discovers that the abolition of the consumer class action has changed the dynamic inside the arbitral forum. Some plaintiffs' lawyers have tried to fill this void by filing numerous freestanding claims against the same company. Yet these "arbitration entrepreneurs" are a pale substitute for the traditional class mechanism. Moreover, by pursuing scores of individual disputes, they have inadvertently transformed some large corporations into "extreme" repeat players. The Article demonstrates that these frequently-arbitrating entities win more and pay less in damages than one-shot entities. Thus, the Court's consumer arbitration revolution not only shields big businesses from class action liability, but gives them a boost in the handful of matters that trickle into the arbitral forum.

"The Effect of the Successful Assertion of the State Secrets Privilege in a Civil Lawsuit in Which the Government Is Not a Party: When, If Ever, Should the Defendant Shoulder the Burden of the Government's Successful Privilege Claim?"  
Wyoming Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 428

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

It is well-settled that the national government has an evidentiary privilege protecting state and military secrets. The privilege protects information that can be vital to the country's safety and survival. It was expectable that the national government would begin asserting the privilege more frequently after 9/11. The government has invoked the privilege in several prosecutions of alleged terrorists.

However, the privilege also applies in civil actions. Indeed, the government may assert the privilege in a civil action even when the government is not joined as a party. The government has the right to intervene for the purpose of claiming the privilege. In recent years, the government has asserted the privilege in a large number of civil actions, including cases involving high technology companies, private security firms, infrastructure contractors, and weapons and aircraft manufacturers.

When the government successfully asserts the privilege in a civil action in which it is not a party, the question naturally arises: What is the procedural effect of the assertion? As the quotations at the beginning of this article indicate, the generalization has been that the only effects are that the privileged information becomes unavailable as evidence and that the case can proceed without the privileged evidence. However, Part I of this article demonstrates that that generalization is a gross over-simplification. In many cases, the court terminates the litigation, resulting in a peremptory victory for the defense. The plaintiff loses the opportunity to conduct discovery or take the case to trial.

Part II of this article presents a critical evaluation of the current state of the law. The primary thrust of Part II is that at least in one set of circumstances, the plaintiff ought to be permitted to proceed - namely, when (1) the plaintiff has sufficient unprivileged evidence to present a prima facie case, (2) proceeding would not raise a significant risk of the inadvertent revelation of privileged information, (3) the privilege claim affects the defense's ability to develop an affirmative defense, and (4) the defendant has a closer relationship to the government than the plaintiff. A factual proposition is considered an affirmative defense because the law assigns the defendant the burdens of pleading, production, and proof on the proposition. The allocation of these burdens to the defendant can be outcome determinative. If there were sufficiently weighty policies to assign those burdens to the defendant, in these circumstances the defendant should also bear the burden of the loss of the privileged evidence. The government's privilege claim neither extinguishes nor diminishes the policies that originally warranted assigning the burdens to the defense. Part II adds that there is a colorable argument that the plaintiff should also be permitted to proceed when the government claim interferes with the defendant's ability to present a simple defense, merely negating an element of the plaintiff's case.

Part II emphasizes that although the plaintiff should be permitted to proceed in these exceptional cases, the court should not grant the plaintiff the sort of peremptory victory that the defense usually obtains after the government's claim. Even when the plaintiff proceeds, it is not a foregone conclusion that there will be a plaintiff's verdict. A key plaintiff's witness may become unavailable for trial, a nervous witness might forget information critical to the plaintiff's case, or the witness may display negative demeanor that prompts the jury to disbelieve the witness's testimony. Hence, the judge should neither enter summary judgment for the plaintiff nor direct a verdict in the plaintiff's favor. However, the thesis of this article is that in these cases the law should be reformed to accord the plaintiff an opportunity to proceed and fairly win a verdict.

"Under the Sun: Casebooks and the Future of Contracts Teaching"  
68 Hastings Law Journal 899 (2015)
UC Davis Legal Studies Research Paper No. 433

THOMAS WUIL JOO, University of California - Davis Law School
Email: twjoo@ucdavis.edu

What is the future of the casebook in legal education? It is tempting and fashionable to blame the current woes of law schools on their supposedly "outdated" educational practices, such as casebooks. As this Essay shows, however, most of the current criticisms of casebooks and the case method are perennial ones. This does not render the critiques invalid, but it does undermine the notion that they reveal a contemporary crisis in legal education. Indeed, they are not even specific to legal education. Rather, they reflect fundamental tensions in the learning of any field: theory versus practice, general understanding versus specific technical knowledge. By saying that there is nothing truly new in these criticisms, I do not mean to say that proposals for reform are futile or ill-advised. It is simply that there is nothing new under the sun, in legal education or anywhere else. Legal education has gone back and forth on these matters, and will continue to do so, and that is probably as it should be.

"Family Support and Supporting Families"  
68 Vanderbilt Law Review En Banc 153 (2015)
UC Davis Legal Studies Research Paper No. 427

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu

This Essay is a Response to Professor Laura Rosenbury's recent article Federal Visions of Private Family Support. Rosenbury's piece offers critical new insights into the role of the federal government in the family. Rosenbury's first important contribution is to demonstrate that, contrary to the dominant narrative, the federal government does not "consistently defer to states' authority to define family." Second, Rosenbury takes this point further by offering one of the few theories that seeks to explain why the federal government intervenes in the family. Rosenbury argues that the overriding reason the federal government recognizes families is "to privatize the dependencies of family members," that is "to incentivize individuals to privately address the dependencies that often arise when adults care for children and for one another." At a time when one of the most visible family law questions is whether same-sex couples will be permitted to marry, this aspect of family recognition is often overlooked, or at least undertheorized. This oversight is a mistake. Rosenbury's piece seeks to keep this consequence of family recognition at the forefront of family law reform conversations.

This Essay highlights the significance of the contributions Rosenbury offers and then pushes her analysis even further. As Rosenbury herself acknowledges, the imposition of family-care obligations is not the only consequence of family recognition. In many circumstances, the government - at both the state and the federal level - also distributes family-based benefits or subsidies to help people fulfill these caregiving and support responsibilities. And while both sides of this equation - the legal obligations of and the subsidies for caretaking - clearly are interrelated, additional insights can be gained by separating these two effects of family recognition. In particular, this Essay argues that by looking at both the imposition of family-care obligations and the distribution of family-based subsidies one can better assess the effectiveness (or lack thereof) of family law and policy on particular families. In addition, looking at both sides of the equation can also provide a deeper understanding of why governments recognize families.

"The Supreme Court's Myriad Effects on Scientific Research: Definitional Fluidity and the Legal Construction of Nature"  
5 U.C. Irvine Law Review, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 431

PETER LEE, University of California, Davis - School of Law
Email: ptrlee@ucdavis.edu

This article examines the implications for biomedical research of the Supreme Court's ruling in Association for Molecular Pathology v. Myriad Genetics that isolated DNA does not comprise patentable subject matter but that complementary DNA (cDNA) does. Although most of the commentary surrounding this case has focused on the availability of genetic diagnostic tests, this Article considers the related and important implications of this opinion for scientific research. At the outset, it argues that this issue is beset with definitional complexity, as it is often difficult to disentangle "commercial" from "research" uses of patented genes. This Article further argues that context matters significantly in assessing the impact of the Court's ruling on research. Accordingly, this Article examines the implications of Myriad Genetics from three perspectives. First, considering the conduct of Myriad Genetics itself, it argues that the Supreme Court's decision creates greater real and perceived freedom to operate for uses of BRCA genes that may yield important scientific insights. Second, reviewing the literature on gene patents and anticommons, this Article argues that the Court's ruling will help enhance access to diagnostic testing more generally, thus advancing biomedical research. Third, at a doctrinal level, this Article suggests that Myriad Genetics may have significant long-term implications. The Court's opinion reflects a strong policy interest in excluding "nature" from patentable subject matter as well as a high degree of discretion in determining the contours of nature for that purpose. Such a policy-oriented, pragmatic approach to patent eligibility may create significant flexibility to challenge patents in research contexts going forward.

"The Supreme Assimilation of Patent Law"  
UC Davis Legal Studies Research Paper No. 435

PETER LEE, University of California, Davis - School of Law
Email: ptrlee@ucdavis.edu

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. Focusing on this tension, this Article explores an underappreciated descriptive theory of recent Supreme Court patent jurisprudence. Commentators observe that the Court has reined in expansive Federal Circuit patent doctrine and established holistic standards to replace bright-line rules. This Article augments these prevailing interpretations by exploring another. Building upon and significantly extending previous scholarship, it argues that the Supreme Court's recent patent jurisprudence reflects a project of eliminating "patent exceptionalism" and assimilating patent doctrine to general legal principles. In a variety of areas including appellate review of lower courts and agencies, jurisdiction, remedies, and the award of attorney's fees, the Federal Circuit has developed rather exceptional doctrine for patent cases. However, the Supreme Court has consistently eliminated such exceptionalism, bringing patent law in conformity with general legal standards. Among other observations, the Supreme Court's intervention reveals its holistic outlook as a generalist court concerned with broad legal consistency, concerns which are less pertinent to the quasi-specialized Federal Circuit. The Article concludes by arguing in favor of selective, refined exceptionalism for patent law. Although the Supreme Court should strive for broad consistency, this Article argues that unique features of patent law - particularly the role and expertise of the Federal Circuit - justify some departure from general legal norms. Finally, this Article turns to tensions between legal universality and exceptionalism more broadly, articulating principles to guide the deviation of specialized areas of law from transcendent principles.

"The Missing Pieces of Geoengineering Research Governance"  
Minnesota Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 434

ALBERT LIN, University of California, Davis - School of Law
Email: aclin@ucdavis.edu

Proposals to govern geoengineering research have focused heavily on the physical risks associated with individual research projects, and to a somewhat lesser degree on fostering public trust. While these concerns are critical, they are not the only concerns that research governance should address. Generally overlooked, and more difficult to address, are the systemic concerns geoengineering research raises: technological lock-in - the danger that sustained research efforts will predetermine geoengineering deployment decisions; moral hazard - the danger that increased attention to geoengineering will undermine efforts to reduce greenhouse gas emissions; and the potential that research itself will increase the probability of future global conflict. Developing mechanisms to address these systemic concerns is a difficult but essential task. This Article proposes an ongoing programmatic technology assessment to analyze the physical and systemic risks associated with geoengineering research, prioritization of research into techniques involving lesser risks, and establishment of safeguards against such risks.

"Brief of Interested Law Professors in Direct Marketing Association v. Brohl (10th Circuit)"  
UC Davis Legal Studies Research Paper No. 429

DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu
ALAN B. MORRISON, George Washington University - Law School
Email: abmorrison@law.gwu.edu
KIRK J. STARK, University of California, Los Angeles (UCLA) - School of Law
Email: STARK@LAW.UCLA.EDU
JOSEPH BANKMAN, Stanford Law School
Email: JBANKMAN@LELAND.STANFORD.EDU
JORDAN M. BARRY, University of San Diego School of Law
Email: jbarry@sandiego.edu
BARBARA H. FRIED, Stanford Law School
Email: bfried@stanford.edu
JOHN A. SWAIN, University of Arizona - James E. Rogers College of Law
Email: john.swain@law.arizona.edu
DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

This case, Direct Marketing Association v. Brohl, was recently remanded by the U.S. Supreme Court to the Tenth Circuit Court of Appeals. The Tenth Circuit then requested a full supplemental briefing; amici law professors submitted this brief.

Like all states with a sales tax, Colorado faced - and faces - a voluntary compliance problem with the collection of its use tax. The use tax is a complement to the sales tax; in-state vendors collect and remit the sales tax, while in-state consumers are responsible for remitting the use tax on purchases made from out-of-state vendors that do not collect the sales tax. To this compliance challenge, Colorado turned to a third-party reporting solution. In broad strokes, the Colorado Statute imposes a modest requirement on one party to a taxable transaction - specifically on relatively large retailers who do not collect the use tax - to report information on their Colorado sales both to the consumer/taxpayer and to the taxing authorities.

Amici make three specific arguments. First, amici demonstrate that third-party reporting of tax information is a ubiquitous and longstanding feature of modern tax systems. When tax authorities rely on taxpayers to self-report their taxable activities, compliance rates for the collection of any tax is low. Therefore, from the broader perspective of tax collection theory and history, including the history of very similar transaction-based taxes that attempt to tax consumption, the Colorado Statute is an unexceptional response to an otherwise intractable problem.

Second, amici argue that the Supreme Court's decision in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), does not apply to the statute at issue in this case. Quill imposed a bright-line physical presence test as a precondition for a state to impose a use tax collection obligation on a retailer. Because of its own self-limiting language and logic, not to mention greatly changed circumstances, the rule of Quill should not be extended into a new area.

Third, amici argue that, because sales and use taxes constitute a unified system, there is no discrimination simply because differently situated retailers are required to aid in the collection of what is essentially a single tax in different ways.

"Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929, by Ajay K Mehrotra (Review)"  
46 Journal of Interdisciplinary History 133 (Summer 2015)
UC Davis Legal Studies Research Paper No. 430

DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

Mehrotra's award-winning book is a tour de force. It chronicles a transformative period in the development of the American fiscal state during which the old order - characterized by indirect, hidden, mercilessly regressive, and partisan taxation - gave way to a direct, transparent, steeply progressive, and professionally administered tax regime.

June 18, 2015

Premiere of Film on the Historic Trial that Made Rape a War Crime

This week, I am in Rwanda for the premiere of the film The Uncondemned.

The President of Rwanda, Paul Kagame, hosted the screening in the capital city of Kigali. Also among those in attendance were the Minister of Justice, the Foreign Minister and a number of women parliamentarians. Official photos from the event are posted to this Flickr album; there are a couple of photos of me, including a shot with my son William.  

The Uncondemned documents the 1998 conviction of Jean-Paul Akayesu, the mayor of Taba Commune, in the first-ever conviction of rape as an act of genocide and as a crime against humanity.  The Rwandan Genocide occurred over about 3 months, beginning in April 1994, when the plane carrying the president of Rwanda, a moderate Hutu, was shot down. 

I was a gender consultant to the International Criminal Tribunal for Rwanda in 1996, and I did the initial legal analysis of the case against Jean-Paul Akayesu, arguing that the indictment (for killings as acts of genocide) against him should be amended to include charges of sexual assault.  I am in the film, as are the two American lawyers who tried the case, Pierre-Richard Prosper and Sara Dareshori. 


Photo: With two of the witnesses in the case, Serafina and Victoire

Most exciting is that the three women who were the key witnesses against Akayesu are in the film, along with the Taba commune social worker who encouraged them to testify and helped to facilitate their doing so.  Those four women attended the premiere; it was their statements I was analyzing back in 1996. 

The Uncondemned will make its U.S. debut in November at the Napa Valley Film Festival and is expected to be in wider distribution in the U.S. and worldwide in 2016.

 

June 15, 2015

Opinion analysis: Limited judicial review of consular officer visa decisions – foreshadowing the result in the same-sex marriage case?

Cross-posted from SCOTUSblog.

Today, a splintered Supreme Court issued a ruling in Kerry v. Din.  The case raised the question of the continuing vitality of the doctrine of consular non-reviewability and its prohibition of judicial review of visa denials by Department of State consular officers. The doctrine is a close cousin of immigration law's extraordinary "plenary power doctrine," which emerged in the late 1800s to uphold laws restricting immigration from China and, in its modern incarnation, immunizes the U.S. immigration laws from ordinary constitutional review.

Over the years, the courts have recognized exceptions to consular absolutism. The most well-known modern example is Kleindienst v. Mandel (1972). In that case, the Supreme Court reviewed a claim brought by U.S. citizens that the exclusion of a Marxist journalist from the United States violated their First Amendment right to hear him speak. In reviewing the visa decision, the Court found that the applicant's violation of the terms of visas on previous trips to the United States was a "facially legitimate and bona fide reason" - and thus legally sufficient - justification for the U.S. government's actions.

Kaniska Berashk is a citizen of Afghanistan and the spouse of Fauzia Din, a naturalized U.S. citizen. Based on his marriage to a U.S. citizen, he applied for a visa for which he was prima facie eligible under the Immigration and Nationality Act. A consular officer in the U.S. embassy in Islamabad, Pakistan, denied the visa application. One could guess that the denial was based on the fact that Berashk had worked as a payroll clerk for the Afghan Ministry of Social Welfare, part of the national government at one time controlled by the Taliban. The officer did not so state, however, instead relying on the immigration statute's broad definition of "terrorist activities," which Congress had greatly expanded in 1996 immigration reform legislation and later in the USA PATRIOT Act. The officer provided no explanation of what Berashk specifically had done to warrant the visa denial. Din sought judicial review of her husband's visa denial and forced separation from her. Applying Kleindienst, the court of appeals found that the consular officer's perfunctory citation to the statute was an insufficient ground for the denial.

Before the Supreme Court, the Obama administration took a firm position and relied heavily on two Cold-War-era decisions that immigration law professors love to hate: Knauff v. Shaughnessy (1950); in which the Court held that the non-citizen wife of a U.S. citizen could be denied admission based on secret evidence, and Shaughnessy v. United States ex rel. Mezei (1953), in which the Court refused, based on secret evidence, to allow a long-term U.S. resident to return to the United States after a trip abroad to visit a dying relative, even when the resident faced the prospect of indefinite detention because his native country would not accept his return. Seeking to limit Kleindienst to its facts, the U.S. government argued that it possessed absolute authority to exclude non-citizens from the country and that there therefore is no right to judicial review of visa denials by consular officers.

The opinions of the Justices reveal that the case appears to have been more a battlefield over the scope of constitutional due process rights to marriage - and thus perhaps to the same-sex marriage case (Obergefell v. Hodges) currently before the Court - than a case involving judicial review of visa decisions.

Justice Antonin Scalia announced the judgment of the Court and delivered an opinion, in which Chief Justice John Roberts and Justice Clarence Thomas joined. In the view of the plurality, Din did not have a constitutional right at stake that justified judicial review: "What Justice Breyer's dissent strangely describes as a 'deprivation of her freedom to live together with her spouse in America' . . . is, in any world other than the artificial world of ever-expanding constitutional rights, nothing more than a deprivation of her spouse's freedom to immigrate into America."

Recounting the long history of regulation of the immigration of spouses of U.S. citizens to the United States (that includes the stripping of U.S. citizenship from women who married foreigners), Justice Scalia took pains to criticize Justice Stephen Breyer's assertion (in his dissent) that Din had a constitutional right at stake. He concluded that "[t]o the extent that she received any explanation for the Government's decision, this was more than the Due Process Clause required." Consequently, the Ninth Circuit ruling to the contrary was vacated and the case was remanded for further proceedings.

Justice Anthony Kennedy, joined by Justice Samuel Alito, concurred in the judgment. While agreeing with the plurality that the case must be vacated and remanded, Justice Kennedy stated that, "rather than deciding, as the plurality does, whether Din has a protected liberty interest, my view is that, even assuming she does, the notice she received regarding her husband's visa denial satisfied due process." Refusing to join Justice Scalia's recounting of the case law on the scope of the right to marriage, Justice Kennedy would find that the reasoning offered by the consular officer for denying the visa satisfies Kleindienst, suggesting that national security justifies the minimal justification offered for the denial.

In dissent, Justice Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, would conclude that Din "possesses the kind of 'liberty' interest to which the Due Process Clause grants procedural protection. And the Government has failed to provide her the procedure that is constitutionally 'due.'" "[T]the liberty interest that Ms. Din seeks to protect consists of her freedom to live together with her husband in the United States. She seeks procedural, not substantive, protection for this freedom."

Like the Ninth Circuit and unlike Justice Kennedy, Justice Breyer would require a more complete explanation for the visa denial than the one provided to Din and Berashk. To the four dissenters, the consular officer's statement in this case (the citation to the statute's "terrorist activity" provisions) was inadequate because (1) the terrorist activity provision literally lists dozens of activities that can lead to the denial of a visa; and (2) there was no factual basis for the specific denial of a visa to this applicant. The dissent also rejected the idea that national security concerns justify the cryptic denial in this case.

Because there was no majority opinion, today's decision probably will not dramatically change the doctrine of consular non-reviewability. The debate between the Justices in this case was really about the scope of Din's constitutional right, not judicial review of a consular officer's decision. One would not be surprised if the Justices had the same-sex marriage case in the backs of their minds, with four Justices viewing the right more broadly than the plurality and Justices Kennedy and Alito refusing to join the narrow view of the right articulated by Justice Scalia.

However, the Court offers hints about the future of judicial review of immigration decisions. A majority of the Court is willing to allow some kind of review of consular officer visa decisions. Justice Kennedy's concurring opinion would allow for more deferential judicial review than Justice Breyer's dissent. However, both - representing six Justices in total - reviewed the consular officer visa denial in this case. Among the opinions, there was no ready defense of the doctrine of consular non-reviewability and no aggressive invocation of cases contrary to modern constitutional sensibilities such as Knauff and Mezei.

Today's decision could reasonably be read as reaffirming Kleindienst v. Mandel and continuing to allow some modicum of judicial review of consular visa decisions that implicate the rights of U.S. citizens. The Supreme Court's holding is consistent with its decisions for more than a decade vindicating some kind of judicial review in immigration cases.

June 5, 2015

Takeaways From the Facebook Threat and Title VII Head Scarf Cases Handed Down by the Court This Week

Cross-posted from Justia's Verdict.

On Monday, the Supreme Court handed down two cases, Elonis v. United States and EEOC v. Abercrombie & Fitch, that had received a lot of press in earlier stages of the litigations and that, judging from the briefs, posed important civil rights issues concerning freedom of speech and freedom of religion, respectively. Although the Court ended up resolving the two matters on relatively narrow grounds-disappointing some of the Justices as well as analysts-it is important to understand precisely what the Court did (and did not) hold in these two rulings, both of whose outcomes were decided by 8-1 votes. In the space below, I briefly discuss the two decisions individually and then side-by-side.

Elonis v. United States

Based on statements he posted on Facebook directed at, among others, his ex-wife, federal law enforcement officials, and school children, Anthony Elonis was convicted of violating federal criminal statutes that prohibit the interstate transmission of communications containing threats to injure other persons. For example, in referring to FBI officials (who had visited his home to interview him about his activities), Elonis wrote online (seemingly in rap-style cadence):

[T]he next time you know, you best be serving a warrant
And bring yo' SWAT an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb . . .
I was jus' waitin' for y'all to handcuff me and pat me down.
Touch the detonator in my pocket and we're all goin' BOOM!

In another posting, Elonis offered:

That's it. I've had about enough.
I'm checking out and making a name for myself.
Enough elementary schools in a ten mile radius to initiate the most heinous shooting ever imagined. . .
The only question is. . . which one?

In entries about his wife, Elonis wrote: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch . . . " And so forth.

At Elonis's criminal trial, the federal district judge instructed the jury that, for purposes of whether Elonis had issued threats prohibited by the statute, "[a] statement is a true threat [subject to prosecution] when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Elonis argued under both the First Amendment and also under the federal criminal statute he was charged with violating that, before a person can be punished for expressing a threat, the government must allege and prove that the defendant subjectively intended to threaten his victim. In other words, Elonis argued that the government needed to prove that he had some subjective state of mind with respect to the effect that his words would have on the individuals to whom they were directed, and not simply that he voluntarily uttered the words and should have known the effect those words would create.

The U.S. Court of Appeals for Third Circuit (along with a large number of other circuits) have rejected the idea that the First Amendment requires the government to prove any subjective state of mind in order to punish threats consistent with the First Amendment. Instead, the Third Circuit held that statements that are reasonably construed as threats by listeners can lawfully be punished. In contrast, the Ninth Circuit (and a number of state high courts) has read the First Amendment as requiring the proof of a subjective intent to threaten as a predicate to a prosecution for threatening speech.

When the Supreme Court granted review, most commentators expected it to weigh in on and resolve this divergence in the lower courts over what the First Amendment requires. But in its ruling three days ago, the Justices decided the case purely on the basis of the federal statute under which Elonis was prosecuted; the Court explicitly deferred any analysis or interpretation of First Amendment requirements. And under the federal statute at issue, the Court said, Elonis is correct that some subjective intent by the person uttering the alleged threat is required; negligence by the person issuing the threat (in the sense that he reasonably should have foreseen that his words would be interpreted as threatening) was not enough. Although Chief Justice Roberts's majority opinion conceded that there is no intent standard written into the text of the federal statute, the Court nonetheless found one based on the way similar statutes had been construed. The Court did not specify precisely what level of intent the federal government must prove-and explicitly left open the question whether recklessness (a conscious disregard of a known risk that words could cause fear) is enough for the government to prove, or instead whether a higher form of intent such as actual knowledge is needed-but reversed Elonis's conviction and sent the case back to the lower courts because negligence on his part was not adequate to support a conviction under the statute.

EEOC v. Abercrombie & Fitch

Samantha Elauf is a practicing Muslim who regularly wears a headscarf for religious reasons. When she applied for a job at an Abercrombie & Fitch (A&F) retail store, the A&F managers evaluating her candidacy declined to hire her because the wearing of head scarves violates an appearance (or "Look") policy A&F has; employees in retail positions are prohibited from wearing caps and other headwear. Prior to their decision not to hire Ms. Elauf, the A&F managers had internal discussions about her in which one of the managers who had some acquaintance with Ms. Elauf expressed the belief that Ms. Elauf wore headscarves because of her faith.

The Equal Employment Opportunity Commission sued A&F on Ms. Elauf's behalf, alleging that A&F had violated Title VII, which prohibits an employer from deciding not to hire an individual because of the individual's religious observance or practice, unless the accommodating the observance or practice would create an undue hardship for the employer. A&F argued, and the Court of Appeals for the Tenth Circuit agreed, that A&F should not be liable because "ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant . . . provides the employer with actual knowledge of his need for an accommodation."

The Supreme Court reversed. Justice Scalia, calling this a "really easy" case when he delivered the decision from the bench, authored the majority opinion which said a Title VII plaintiff need not show "actual knowledge [by the employer] of a conflict between an applicant's religious practice and a work rule," because requiring such actual knowledge would involve the Court "add[ing] words to the law to produce what is thought to be a desirable result [. . . , which] is Congress's province." He went on: "We construe Title VII's silence [as to the requirement of actual knowledge] as exactly that: silence."

But Justice Scalia did say that a Title VII plaintiff like Ms. Elauf had to show the employer's adverse action against the applicant was based at least in significant measure on a motive to avoid the religious accommodation. But how can an employer be acting based on a motive to avoid accommodating an applicant's religion practice-"because of" an applicant's religious observances, in the language of Title VII-if the employer doesn't know that the applicant's conduct requiring an accommodation is itself religiously based? Justice Scalia acknowledged, in an important footnote, that it "is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice," but that issue need not be decided in the A&F case because it has not been briefed by either side and because A&F "knew or at least suspected that the scarf was worn for religious purposes." Oddly enough, then, the majority opinion technically holds open the possibility that an employer who had no clue that a prospective employee's likely non-compliance with a work rule was religiously motivated could be held liable under Title VII, a result that Justice Alito in his separate concurrence rightly calls "very strange" and "surely wrong."

The Two Cases Taken Together

What can we say about these cases when we look at them in tandem? First, it is interesting that Justice Clarence Thomas is the lone dissenter in both decisions, and that he parted company with Justices Scalia and Alito (with whom he is often aligned as to result) on the interpretation of the federal threats statute and Title VII. Also, Justice Alito wrote separately for himself in both cases, decrying the minimalist nature of the majority's holdings. So, in both Elonis and Abercrombie & Fitch, Justice Scalia, Justice Thomas, and Justice Alito each had a different take from one another.

Second, both majority opinions conclude that Congress had not fleshed out in the text of the statute in question a requirement as to the defendant's subjective knowledge, but the Court reacted to that absence differently in the two cases. In Elonis, the Court said that because the statute is a criminal one, a wrongful state of mind on the part of the defendant should be found in the statute even when Congress was silent. But in Abercrombie & Fitch, Justice Scalia's majority opinion insists (to the extent that one can separate motive from knowledge) that Congress's silence as to the level of knowledge required of employers before they can be held liable is not something to be fixed by courts. The more ambitious attitude by the Court in the context of a criminal statute makes sense; there are special rules of statutory construction that apply particularly to laws that impose criminal sanctions.

But, and this is a third point, the criminal nature of the statute in Elonis might have properly led the Court to want to provide more notice to lower courts and potential defendants about precisely what level of subjective knowledge concerning the fear-inducing nature of words is required; the criminal law setting usually calls for clearer notice to be given to potential offenders. In particular, the disinclination by the Elonis majority to weigh in on whether recklessness by a defendant-e.g., a defendant who fleetingly wonders whether his proposed speech might cause fear in others but who never forms a view on the likelihood fear will in fact ensue-is sufficient under the statute, while perhaps understandable given absence of explicit lower court consideration of this matter, is sub-optimal. And, of course, because many statutes that criminalize threats are state statutes instead of federal laws, the question of whether and how the First Amendment requires government to prove any particular mental state of a defendant before criminal punishment may be imposed remains one on which the Supreme Court will need to give guidance. Indeed, in an earlier column I wrote previewing Elonis, I noted that it may not have been a good case in which to grant review precisely because the statutory ground could complicate the ability of the Court to give needed constitutional guidance. If this happened (as it did), I observed, the Court "would still need to rule in a later case on whether the First Amendment requires subjective intent (in the context of a federal or state statute that clearly does not require it.)"

The absence of guidance to lower courts and litigants in Abercrombie & Fitch is also quite frustrating, even though criminal liability was not at issue. On the facts of the Abercrombie & Fitch case, the employer "knew-or at least suspected-that the scarf was worn for religious purposes." But the tougher situation arises when the employer doesn't actually know but perhaps should be encouraged to find out, prior to declining to hire someone. For example, what if the A&F managers had no personal knowledge of Ms. Elauf during the interview process, but noted that she wore a head scarf and said to themselves, "Gee, I wonder if that is a style statement or a religious practice?" (In some respects, that could be thought of as "recklessness" but not knowledge on the part of the employer.)

Would the fact that the possibility of religious motivation even occurred to the employer be enough to trigger a requirement that the employer investigate the basis of the practice? Or would imposing such a duty on employers cause them to invade the religious privacy of employees and job applicants? (Courts in other countries that take religious liberty seriously often focus on religious privacy more than do American courts.) I do not know the answer to this, but I would observe that minority religious practices are often less well-known to many employers, a fact which might argue in favor of requiring employers to do some diligence once the possibility of a religiously inspired practice occurs to an employer. As for respecting privacy, there may be sensible ways to avoid making applicants feel uncomfortable. For example, all prospective employees could be given a list of all the employer's work rules and then asked, as a matter of course, whether religious practices would require accommodations with respect to any such rules. But this precisely the kind of detail the majority in Abercrombie & Fitch did not want to wade into. The reason it was a "really easy" case for the Court is that the Justices shied away from the difficult matters that actually needed some clarification.

June 1, 2015

Opinion analysis: Court rejects removal based on misdemeanor drug paraphernalia conviction

Cross-posted from SCOTUSblog.

Today, the Supreme Court decided Mellouli v. Lynch, a case involving the removal from the United States of Moones Mellouli, a lawful permanent resident from Tunisia, based on a Kansas misdemeanor drug paraphernalia conviction for possession of a sock used to hide four tablets of the prescription drug Adderall.

Removal based on a sock conviction may sound like a story line from a television sitcom. However, the U.S. government instituted removal proceedings based on the conviction and dramatically changed Mellouli's life. Forced to leave the country where he had resided since 2004 after an immigration court ruled against him, Mellouli now lives apart from his U.S. citizen fiancé.

For purposes of removal, the immigration statute requires that a drug conviction under state law must "relat[e] to a controlled substance (as defined) by" federal law. This requirement is important because some states ban substances in addition to those regulated by federal law. (Kansas, for example, regulates at least nine substances not regulated by federal law.) The charging document and plea agreement in Mellouli's criminal case failed to identify the specific controlled substance related to the paraphernalia that served as the basis for his conviction and thus did not make it clear that the substance was controlled by federal law. Nonetheless, the immigration court and Board of Immigration Appeals (BIA), with the approval of the court of appeals, ordered Mellouli deported from the United States.

The arguments in the case, as often is true in modern cases in which the courts review the actions of administrative agencies, revolved around the application of the Court's 1984 decision in Chevron v. Natural Resources Defense Council, Inc., holding that the courts must defer to an agency's reasonable interpretation of an ambiguous statute. Cases involving Chevron deference necessarily require careful analysis of the statute in question to determine whether the text is ambiguous, which triggers deference to reasonable agency interpretations of the statute.

Justice Ruth Bader Ginsburg wrote for a majority of the Court, which included all but Justices Clarence Thomas and Samuel Alito.  The opinion carefully marches through the statutory language and agency interpretations and concludes "that Mellouli's Kansas conviction did not trigger removal under" the immigration statute.   The Court, as it had in Moncrieffe v. Holder, reiterated its adherence to the "categorical approach" to removal under criminal statutes, which requires that all of the convictions under a statute must trigger removal without a need for inquiry into the facts of the individual case. The Court further observed that "Congress and the BIA have long required a direct link between an alien's crime of conviction and a particular federally controlled drug." Recognizing that Kansas law regulated nine substances not included in the federal controlled substances lists, the Court found that the government's emphasis on the "relating to" language in the immigration statute to justify removal for a conviction in connection with a substance that was not clearly regulated by federal law was a "sweeping interpretation [that] departs so sharply from the statute's text and history that it cannot be considered a permissible reading" In rejecting the government's position, the majority stated that "[t]he incongruous upshot [of the government's argument] is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance. Because it makes scant sense, the BIA's interpretation, we hold, is owed no deference under the doctrine described in Chevron."

Justice Thomas, in a dissent joined by Justice Alito, would have accepted the U.S. government's argument. The broad "relating to" language in the removal statute resolved the case for him, as he would have accepted that "faithfully applying [the] text means that an alien may be deported for committing an offense that does not involve a federally controlled substance."

Today's decision is a typical statutory interpretation and agency deference case, which would not seem to have many far-reaching doctrinal implications. It is consistent with the Roberts Court's reluctance to subject small-time drug offenders to mandatory removal from the United States. In Moncrieffe, for example, the Court rejected a removal order of a long-term lawful permanent resident based on a single conviction for possession of the equivalent of a few marijuana cigarettes. Similarly, in Carachuri-Rosendo v. Holder (2010), the Court ruled that mandatory removal of a lawful permanent resident could not be premised on a misdemeanor conviction for possession of a single tablet of a prescription drug (Xanax) and a previous misdemeanor marijuana possession conviction.

Today's decision will serve as an incentive to prosecutors to clearly state in charging documents and plea agreements what specific drug a drug paraphernalia charge relates to. In this case, such precision would have helped facilitate removal. It seems unlikely that the decision will have much of a general impact on the U.S. government's efforts to remove convicted drug offenders from the country.

In sum, the decision once again demonstrates that the Roberts Court will not rubber-stamp the removal decisions of the executive branch, even those involving immigrants convicted of drug-related crimes that the immigration laws target for harsh treatment.

May 26, 2015

The Significance of the Supreme Court’s Williams-Yulee Decision Upholding Florida’s Regulation of Judicial Elections

Cross-posted from Justia's Verdict.

A few weeks ago the Supreme Court handed down an important yet under-noticed case, Williams-Yulee v. Florida Bar, in which a 5-4 majority upheld a Florida law that forbids candidates running in contested elections for judicial office from personally soliciting campaign contributions, even though the state permits such candidates to raise money through surrogates (campaign committees) and also allows candidates to find out who contributed to their campaigns. In the space below, I identify four key takeaways from this "sleeper" ruling by the Court, a ruling that affords important insights about constitutional doctrine and also about the membership of the Roberts Court.

1. The Speech Clause Juggernaut May Be Losing Steam

The (unsuccessful) challenge to the Florida law was brought under the First Amendment; the defendant in Williams-Yulee argued that Florida's ban on personal solicitation was a regulation that singled out certain speech-a personal request for money-because of its content, in violation of free speech principles. The Court acknowledged that the Florida law was a content-based regulation of political speech (and, as explained in more detail below, thus purported to apply "strict scrutiny" to the matter), but nonetheless upheld the law because of the important countervailing interest in preserving public confidence in the integrity of the judiciary.

In holding that public perceptions of integrity should carry the day, the Williams-Yulee ruling stands in contrast to the great majority of free speech cases decided by the Court over the last generation. Since the early 1990s, the overwhelming majority of plausible free speech claims (and the defendant's claim in Williams-Yulee was certainly plausible) that have reached the Court have prevailed, and expressive autonomy has regularly trumped competing constitutional and societal values. Over the last quarter-century, the Court has invoked the Speech Clause to invalidate federal, state, or local laws and regulations in well over fifty cases, averaging close to three cases each year, a substantial number given the Court's small yearly docket of between seventy and eighty cases for most of that period.

But a quantitative inquiry tells only part of the story. It is particularly noteworthy that First Amendment claims grounded in expressive autonomy rights have not just been winning, but have been winning against-and requiring significant sacrifices of-other values that traditionally have enjoyed high esteem in our legal, social, and constitutional traditions, including the efficient functioning of labor unions, the protection of military honor and military families, antidiscrimination laws and norms, election and campaign finance regulation intended to make elections more free and fair, parental control over the upbringing of their children, and consumer protections, among others.

Whether Williams-Yulee represents simply one exception to this great tide of free speech victories, or instead should be viewed as part of the beginning of a more balanced approach to free speech cases remains to be seen. There are at least two (and maybe more) other interesting and difficult free speech decisions yet to be decided this Term. The first is a case that considers the extent to which the First Amendment protects against prosecution individuals who utter words that cause objectively reasonable people to feel fear (Elonis v. U.S.), and the second is a case about how readily a State can discriminate among messages on personalized automobile license plates (Walker v. Texas Division, Sons of Confederate Veterans). It is possible that the free speech claimants in both of those cases (who assert plausible, if to my mind flawed, free speech arguments) will also lose. If that happens, commentators will begin to wonder whether the free speech juggernaut is indeed beginning to slow.

2. "Strict Scrutiny" Is in the Eye of the Applier

As I noted above, the Court in Williams-Yulee applied strict scrutiny-which requires the government to prove that the law in question is narrowly tailored to serve a compelling interest-to the Florida election regulation. But, as Justice Scalia remarked in dissent, "[although the Court] purports to reach [its] destination by applying strict scrutiny, . . . it would be more accurate to say that it does so by applying the appearance of strict scrutiny." In particular, the Court seemed quite tolerant of underinclusiveness in Florida's scheme, whereas significant underinclusiveness usually prevents a statutory scheme from being considered "narrowly tailored" in the way that strict scrutiny dictates.

For example, the defendant pointed out that Florida permits candidates to write personal thank-you notes to donors (guaranteeing that the candidates will know who the donors are) and also allows campaign committees to act explicitly on behalf of candidates in directly soliciting donations. If personal solicitations by candidates undermine "public confidence in judicial integrity," why do not these other practices create the same harm? The Court acknowledged that Florida does allow activities that might create some suspicion over whether judges are beholden to or favor donors, but concluded that "narrowly tailored" does not mean "perfectly tailored," and that the "First Amendment does not put a State to [an] all-or-nothing choice." For the Williams-Yulee majority, it was sufficient that Florida has targeted the "conduct most likely to undermine public confidence[,]" and that personal solicitations are "categorically different" from solicitations by campaign committees. The Court did not go to great lengths to explain this "categorical" difference, other than to say that while committee and personal solicitations may be "similar . . . in substance, a State may conclude that they present markedly different appearances to the public."

Importantly, though, the Court did not cite to, or seem to insist upon, any proof by the State that these two types of solicitations were viewed differently by the public. Indeed, when the Court said that a State "may conclude," it was using language most often associated with deferential review-where benefits-of-the-doubt about the real-world state of affairs are given to the government-not the language of truly strict scrutiny, in which the government must establish not just that its views are plausible, but that its views are grounded in actual fact.

3. Stare Decisis Is Often Not Very Powerful at the Court

The seemingly generous implementation of strict scrutiny brings up another important facet of Williams-Yulee-its tension with the most relevant Supreme Court case in the realm of judicial election regulation. There is, as one of the Williams-Yulee opinions put it, "only [one] prior case concerning speech restrictions on a candidate for judicial office"-the 2002 case of Republican Party of Minnesota v. White. And in that case the Court (in striking down Minnesota's judicial election regulation) applied a stricter version of strict scrutiny.

In White five Justices used the First Amendment to strike down a Minnesota law that prohibited candidates for judicial office from speaking out on controversial issues of the day. The law at issue prohibited a candidate for elected judicial office from "announc[ing] his or her views on disputed legal or political issues." The prohibition went beyond candidate "promises" and forbade, for example, a candidate from criticizing a past court decision and indicating a willingness to consider a different result in similar cases down the road.

Minnesota argued that it needed to regulate candidate speech to ensure that the public believes that judges are sufficiently open-minded about important matters that might come before them, an interest very similar to Florida's goal of "preserving public confidence in judicial integrity." But Justice Scalia's opinion for the majority in White rejected this justification for Minnesota's law because the scheme was woefully underinclusive, insofar as judicial candidates were not prohibited from voicing their views prior to the time they became declared candidates. The Court rejected the argument, made by dissenting Justices, that "statements made in an election campaign pose a special threat to open-mindedness because the candidate, when elected judge, will have a particular reluctance to contradict them." The Court said that the idea that judges feel particularly constrained by statements they make qua candidates is "not self-evidently true[,]" and thus cannot carry the day given the "burden [on the government] imposed by our strict scrutiny test to establish th[e] proposition that campaign statements are uniquely destructive of open-mindedness [or the appearance of open-mindedness]."

The tension between White and Williams-Yulee is clear. In the former, the State lost because it did not prove that campaign statements were "uniquely" destructive of the appearance of open-mindedness, but in the latter the State prevailed because it was allowed to "conclude" (without any proof) that personal solicitations "present markedly different" appearances to the public as compared to committee solicitations. Why Minnesota had to prove "unique" destruction of confidence whereas Florida could simply reasonably surmise "markedly different" problems of public perception is left unexplained.

Let me be clear here that I think the overall approach of Williams-Yulee is largely correct and that the analysis of the White majority was largely misguided. As I have written in law review articles and elsewhere, while the First Amendment protects one's right to speak about the bench, there is no right to to sit on it, and the Tenth Amendment gives states broad powers to regulate the process by which people become judges. The key point is not merely that judges are not supposed to be politicians; it is that throughout American history, we have often selected judges (but not legislators or chief executive officers) without the use of contested elections. And in these non-election processes, what would-be judges have said and done is held against them by government decisionmakers. Just as the president and the Senate certainly, and permissibly, may refuse to make someone a federal judge because of what that person has said, even though such refusals are undeniably "content-based" and indeed "viewpoint-based," and thus might, in other contexts, run afoul of basic First Amendment principles, a state should be generally available to deny judicial office to candidates who speak in ways that contradict certain judicial decorum norms set by the state. (There is the separate question, implicated in both White and Williams-Yulee, of whether the sanction for violating campaign rules can extend beyond mere disqualification for judicial office, which is a topic I save for another day.)

But my point here is not that Williams-Yulee's result is wrong-only that its application of strict scrutiny is not very authentic and that its leniency contradicts the approach in White.

4. Chief Justice Roberts Is no Clone of Chief Justice Rehnquist

How do we explain the tension between White and Williams-Yulee? The answer seems to rest largely on changes to the Court's personnel. White was a 5-4 case, with the majority consisting of Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas. The dissenters were Justices Stevens, Souter, Ginsburg, and Breyer.

In Williams-Yulee, the remaining White dissenters (Ginsburg and Breyer) are (predictably) in the majority, and the remaining members of the White majority (Justices Scalia, Kennedy, and Thomas) are (predictably) in the dissent. Between White and Williams-Yulee, Justice Alito replaced Justice O'Connor, and voted the same way as we would have expected her to vote, and Justices Kagan and Sotomayor replaced Justices Stevens and Souter, and voted the same way as we would have expected them to vote. So far, so good-an even swap.

But Chief Justice Roberts, who replaced Chief Justice Rehnquist, did not follow in the footsteps of his predecessor here. So what was a 5-4 majority in favor of the First Amendment claimant in White became in Williams-Yulee a 5-4 majority in favor of the State. Chief Justice Roberts apparently has a different view of judicial elections (and the extent to which First Amendment protections for election-related speech apply to them) than his mentor and former boss. Whether there is a broader divergence between Chief Justice Roberts and his predecessor in First Amendment cases is a question that might be worthy of more attention now that the Roberts Court is finishing its first decade.

May 8, 2015

The (Limited) Utility of State Religious Freedom Restoration Acts (RFRAs): Part Two in a Two-Part Series of Columns

Cross-posted from Justia’s Verdict. Co-authored with Professor Alan Brownstein.

As we noted in a column for this site two weeks ago, state religious freedom restoration acts, or RFRAs, such as the recently amended Indiana religious liberty statute, have been criticized on the ground that they are intended to permit discrimination against gays, lesbians, and same-sex couples in the provision of goods and services. Given the intensity of this national controversy, we think it would be useful to take a step back-indeed, to take several steps back-and look at the historical background and evolution of the RFRA device. In this column, we focus not on any particular state statute but rather on three general topics: (1) the purpose of the earliest state RFRA laws and how that purpose relates to the goals of the more recently enacted and proposed legislation; (2) the virtues (and drawbacks) of enacting a general religious liberty statute as opposed to adopting religion specific accommodations on a case-by-case basis; and (3) the best way, in light of the current controversy about the conflict between state RFRA laws and anti-discrimination principles, to move forward when state legislatures consider these laws.

The Purpose of Early State RFRAs and What It Tells Us About the Recent Legislative Efforts

As we discussed in Part One, the Supreme Court, in 1990, decided the case of Employment Division v. Smith, a dispute involving the right of Native Americans to use the proscribed substance of peyote in their religious rituals. The Court ruled that neutral laws of general applicability are not subject to any rigorous scrutiny even when these laws have the effect of burdening religious practices. Unless the state targets religion-think of a law prohibiting Catholics from attending Mass-the Free Exercise Clause of the First Amendment simply does not require the state to explain or justify a law that has the effect of prohibiting religiously mandated practices or requiring the performance of religiously prohibited conduct.

The Smith decision came as a surprise to many, perhaps most, constitutional scholars. Based on prior cases, the parties to Smith had assumed that the Free Exercise Clause required, even in the context of neutral laws of general applicability, the government had to justify burdens on religious practice by showing that laws creating such burdens were narrowly tailored to accomplish compelling governmental interests. It is true that the Supreme Court, in applying this "strict scrutiny" narrow tailoring/compelling interest test had very rarely actually ruled in favor of a plaintiff asserting a free exercise claim against a general law. But it had often reached its conclusion by nuanced application of strict scrutiny, rather than rejection of the need for meaningful governmental justification altogether. Prior to Smith, lower courts could not summarily dismiss free exercise claims. After Smith, the door to the federal courts was, in effect, locked tight against free exercise claimants.

The Smith decision drew fire both from legal scholars and advocacy groups. In 1993, Congress enacted the federal Religious Freedom Restoration Act (RFRA), essentially to reinstate, as a matter of federal statute, the strict scrutiny religious liberty rights regime that individuals and institutions had previously understood to emanate from the Constitution itself. But in 1997, in City of Boerne v. Flores, the Supreme Court held that Congress exceed its enumerated powers in enacting RFRA insofar as RFRA applied to and regulated state and local governments. After Boerne, RFRA could be constitutionally applied only to burdens on religion created by the federal government.

This was the legal and political background against which several states considered the enactment of the first wave of state RFRA laws. It is important to recognize three conditions that characterize the consideration of state RFRA laws during this initial period in the late 1990s. First, support for or opposition to these laws did not correlate tightly to party affiliation. There was no doubt concern by some liberals about the application of state RFRAs to civil rights laws, but this concern was only part of the debate and did not cause legislators to be divided along party lines in their ultimate views on state RFRAs. In California, for example, in 1998, a state RFRA law passed both houses of the Democratic legislature, only to be vetoed by Republican Governor Pete Wilson.

Second, general concerns about the correctness of the Smith holding fueled the movement toward state RFRAs. Religious liberty proponents continued to believe and argue that free exercise rights should count for something if they were substantially burdened even by a neutral law of general applicability.

Third, the arguments in favor of state RFRAs were not grounded just in abstractions; they were nested in actual cases and real-world narratives. A pair of real-life settings received particular attention. One was land-use regulation. Religious congregations, it was argued, often found it extremely difficult to develop land to construct new houses of worship because of restrictive state and local zoning laws. Many towns didn't seem to want new venues of worship in residential areas, or commercial districts, or even in agricultural zones. And minority faiths seemed to bear the brunt of these regulatory restrictions. The other narrative involved the religious freedom of prison inmates. It was widely believed that state prison authorities imposed relatively arbitrary burdens on the ability of inmates to engage in worship or other religious activities.

The first and third of these conditions no longer exist today. As to the first, religious liberty legislation is far too often a partisan political issue at this moment, with Republicans favoring state RFRAs and Democrats opposing them.

And, importantly, as to the third, the pair of persuasive narratives for adopting a state RFRA-the burdens created by state and local land use regulations on congregations trying to develop land for a new house of worship and the difficulties state prison inmates experienced in engaging in religious worship and exercise-were effectively dealt with by federal legislation. In 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA requires state and local governments to justify under rigorous review land use regulations or decisions that substantially burden the use of land for religious purposes and prison regulations and decisions that substantially interfere with the ability of inmates to engage in religious worship or otherwise follow the dictates of their faith. Because RLUIPA invokes Congress's Spending Clause power to attach conditions to federal funding-and because virtually all state and local governments and prisons depend on federal funding-RLUIPA has been upheld and applied by countless lower federal courts and (in the context of the prison provisions) the Supreme Court.

Recent state RFRA laws and proposals can still be justified by the second backdrop condition animating the first generation of state RFRAs-the abstract idea that Smith created a gap in the protection of religious liberty, and that religious activity deserves to be protected to some extent against even neutral laws of general applicability. But because, other than the land-use and prison settings, there are no easily described categories of state regulatory activity that burden religion in ways most people find problematic, a modern state RFRA might seem like a solution in search of a problem. Indeed, the only unifying narrative that describes a general problem, as opposed to isolated cases, to which modern RFRAs might be directed is the narrative grounded in religious objections to same-sex marriage and the claims for exemptions from civil rights regulations that prohibit discrimination on the basis of sexual orientation.

This is the crux of the problem. Legislators and governors who argue that they support a state RFRA law today for reasons that have nothing to do with discrimination related to same-sex marriage have a difficult time persuading anyone of their position because there are no religious liberty narratives involving significant real-world areas of concern other than civil rights laws. The original, principled basis for enacting state RFRA laws still exists, and state RFRAs certainly may be of value to religious individuals or institutions in occasional varied circumstances-religious burdens do arise outside of land-use and prison contexts as we demonstrated with some hypothetical examples at the end of Part One of this series-but there is no well-organized storyline here that can be easily understood and valued. In other words, because, after RLUIPA, the contexts in which state RFRAs might provide needed protection do not fall into any easy-to-define or easy-to-predict categories of regulation, avoiding antidiscrimination laws is the primary narrative that is still left standing. It is the one that most people see. And, to be frank, it certainly appears to be the primary motivation for the introduction of new RFRA bills in state legislatures these days.

A General Religious Liberty Statute Versus Religion-Specific Accommodations on a Case-by-Case Basis

Assuming that some exemptions for religious activity outside of the land-use and prison arenas may be worthwhile, the question becomes whether a state statute (e.g., a RFRA) is the best way to facilitate them. Another way of framing the issue is, given that some religious exemptions will be recognized by government, whether we are better off determining when exemptions should be granted by having the more political branches of government evaluate practice- or sect-specific requests for accommodation, or whether it would be preferable to enact a general religious liberty statute, like a state RFRA, and shift the task of determining when an exemption is appropriate to the judiciary. We think general religious liberty statutes have some important virtues over religious practice- or sect-specific accommodations.

First, the general religious liberty statute is, by definition, general. It seeks formally to apply the same standard to all faiths. Thus, a religious person's ability to obtain an exemption will not, in theory at least, depend on his or her ability to influence the political branches of government. It is true that judges, like legislators, may also be unfamiliar with or unsympathetic to religious minorities. Still, under a general religious liberty statute, a minority faith with insufficient muscle to achieve an accommodation through political channels has an additional forum where its claims can be heard-a court of law.

Second, the business of obtaining sect- or practice-specific accommodations has other serious drawbacks. Restricting religious exemptions to the political branches of government politicizes religion. The freedom to practice one's faith becomes a benefit controlled by the government. Accordingly, religious groups have to organize politically as religious groups to obtain the exemptions their faith requires.

Third, and related, a system in which all accommodations are political actions requires religious individuals and groups to spend their political capital on freedoms that should be theirs as of right. This system operates like a political tax on religion.

Fourth, if the ability to practice one's faith depends on a religious group's political power in a jurisdiction, we create an incentive for religious people to live in communities where there are a sufficiently large number of co-religionists to influence the government. A legal regime that promotes the segregation of communities along religious lines is problematic and much less desirable than a regime that facilitates the religious integration of our communities.

Of course, there are problems with general religious liberty statutes as well. The standard of review to be applied by courts in these laws is intrinsically subjective, value-laden and unpredictable. No one can really be sure how a given court will interpret and apply the law to the facts of any given case. Accordingly, the protection provided to religious liberty may turn out to be much narrower or much broader than the community anticipated when it enacted the law. In theory these statutes can be amended to cure wrongly decided cases, but there is no guarantee that the political branches of government will be capable of effectively monitoring and responding to errant RFRA decisions by courts.

Moreover, the indeterminacy inherent in these laws means that, at least initially and in all cases of first impression, they will provide little guidance either to potential defendants or to plaintiffs. In the context of anti-discrimination laws, uncertainty imposes serious burdens on all the relevant parties. Service providers do not know if they are permitted to deny services for same-sex weddings, for example, because of their religious objections to such ceremonies. And same-sex couples lack the security of knowing that they cannot be denied the services they seek when they attempt to patronize a provider of wedding services.

While we recognize that reasonable people can disagree on this point, we think on balance there are legitimate reasons for a state to consider enacting a state RFRA law. But that does not mean that we think the RFRA law should operate to provide exemptions in all cases in which religious exercise is substantially burdened by law.

What is the Best Way for State Legislatures to Balance State RFRAs and Anti-Discrimination Principles?

Church-state scholars generally agree that most RFRA challenges to civil rights laws governing for-profit economic activity will and should be unsuccessful. The state has a compelling state interest in protecting members of particular classes against discrimination in the workplace and in places of public accommodation. And conventional civil rights laws are the least restrictive means available to accomplish this egalitarian goal. Still, no one is certain that all RFRA claims against regulations prohibiting discrimination will fail. Nor is there agreement as to which claims, if any, deserve to succeed.

Because RFRA laws are unlikely to provide any kind of expansive protection to discrimination in employment or public accommodations based on religious beliefs, an obvious solution to the controversy surrounding these laws would be to enact a civil rights carve-out that limits the scope of the RFRA legislation. Indiana amended its RFRA law to provide explicitly that the law does not authorize, or establish a defense for, discrimination in employment or places of public accommodation. Such a civil rights carve-out would make the RFRA law available to protect religious liberty in in various idiosyncratic circumstances in which general laws unnecessarily burden religious practice, but would preclude any possibility that the law would undermine the enforcement of anti-discrimination regulations.

The argument against a civil rights carve-out is that it could carve out too many RFRA claims. Many proponents of state RFRAs argue that there are at least a limited number of situations in which religious exemptions to some civil rights laws are justified, and yet these claims would be excluded from protection under a general civil rights carve-out. These arguments often focus on caterers, bakers, florists and photographers who provide goods and services for wedding ceremonies and receptions, but the arguments are not limited to these commercial activities.

We think the appropriate response to these concerns is straightforward. In addition to adopting a broad civil rights carve-out from the state RFRA, the state could negotiate explicit exemptions-exceptions to the carve-out, if you will-to cover the limited number of situations in which faith-based discrimination might deserve to be protected against civil rights laws. From a policy perspective, this approach would have several advantages. It would provide more clarity than a generic state RFRA. It would guarantee religious exemptions to civil rights laws in specific circumstances where they were thought to be particularly justified. It would avoid any concern that the law would be interpreted too broadly to protect discrimination in inappropriate circumstances. And it would allow a state RFRA to be adopted to protect religious liberty in all of the situations that do not involve discrimination in violation of civil rights laws.

Our suggested course of action may be challenged, however, by the argument that such negotiations in the legislature about the particular exceptions to a civil rights carve-out would be futile. The two sides debating religious liberty and gay rights issues are so polarized that they would never agree on explicit limited exemptions. We are unconvinced that this will always be the case-particularly if states that currently do not protect gays and lesbians or same-sex couples from discrimination bring legislation prohibiting discrimination based on sexual orientation and identity to the bargaining table. Working out what the specific exemptions for religion-based discrimination will undoubtedly be hard political work. But that is no reason not to engage in the attempt.

May 1, 2015

New Research from the Faculty at UC Davis School of Law

Here is a look at some of the most recent scholarship from UC Davis School of Law faculty from the Social Science Research Network's Legal Scholarship Network. Click through the links to download the works.

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

"Productive Tensions: Women's NGOs, the 'Mainstream' Human Rights Movement, and International Lawmaking" Free Download
Non-State Actors, Soft Law and Protective Regimes: From the Margins (Cecilia M. Bailliet ed., Cambridge University Press, 2012).
UC Davis Legal Studies Research Paper No. 422

KARIMA BENNOUNE, University of California, Davis - School of Law

Non-govermental organizations (NGOs) are among the most discussed non-state actors involved in the creation, interpretation, and application of international law. Yet, scholars of international law have often over looked the critical issue of diversity among NGOs, and the differing stances they may take on key international law issues and controversies. This oversight exemplifies the ways in which international law scholarship sometimes takes overly unitary approaches to its categories of analysis. Feminist international law questions the accuracy of such approaches. When one unpacks the "NGO" category, one often discovers multiple NGO constituencies reflecting conflicting concerns and perspectives. Hence, feminist international law theories should reflect a view of NGOs as international lawmakers that is equally complexified.

This chapter will focus on one example of such NGO diversity, namely the inter-NGO dynamic sometimes found between women's human rights NGOs and what is often termed the "mainstream" human rights movement. These relationships have long been complicated . At times these constituencies are allies with the same international law priorities. At other times they are opponents or at least involved in what might be described as a tense dialogue. Sometimes the "mainstream" human rights groups become themselves the targets of the lobbying of women's human rights groups. Indeed, women's human rights NGOs and other human rights NGOs may have very different views of particular inter­ national law questions . Over time, however, the women's rights groups have often - though not always - prevailed on human rights groups to evolve their view of international law in a more gender-sensitive direction.

This dialectical relationship between women's groups and other human rights groups has played out in numerous arenas, including in the 1990s debate over the definition of torture, and, most recently in regard to the need to (also) respond to atrocities by fundamentalist non-state actors in the context of critiquing the "war on terror:' In each instance, women's groups and other human rights NGOs have some­ times had uneasy, multifaceted and shifting relationships that have shaped critical international lawmaking processes and debates. Groups within both of those broad categories of NGOs have also taken diamet­rically opposed positions at times. All of these sets of complexities, these putatively productive tensions, have both enriched and rendered more difficult the role of NGOs as lawmakers, and must be reflected in any meaningful theorizing of the issue.

What then should these layered inter-NGO dynamics tell us about our conception of "NGO" as a category of analysis, and about the role of NGOs in the creation and practice of international law? What can analyzing these dynamics tell us about how progress can most success­ fully be made toward a feminist reshaping of international law? This chapter will consider each of these questions in light of several case studies.

I come at this subject from a range of vantage points, having been an Amnesty International legal adviser, having also worked closely with a range of women's NGOs, and currently as an academic. Hence, I will try to look at these questions at the intersection of both academic and these various practitioner perspectives. To that end, this chapter begins with a brief overview of NGOs and their roles on the inter­national law stage, as described in the literature. An examination of the categories used here follows, interrogating the meaning of the terms, "women's human rights NGO" and "mainstream human rights NGO." Subsequently, the chapter reviews the case studies drawn from practice, first with regard to NGO interaction concerning the definition of torture, and then bearing on responses to the "war on terror." It then concludes with a brief application of the lessons learned from these case studies about the meaning of NGO participation in international lawmaking.

"Administering Section 2 of the VRA After Shelby County" Free Download
Columbia Law Review, vol. 115 Forthcoming
UC Davis Legal Studies Research Paper No. 372

CHRISTOPHER S. ELMENDORF, University of California, Davis - School of Law
Email: cselmendorf@ucdavis.edu
DOUGLAS M. SPENCER, University of Connecticut, School of Law
Email: dspencer@berkeley.edu

Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court's evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; second, that the courts have authority to create rebuttable presumptions to regularize Section 2 adjudication. Section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases - each relying on data from a different set of elections - are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This approach would also end the dependence of vote-dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.

"Bait, Mask, and Ruse: Technology and Police Deception" Free Download
128 Harvard Law Review Forum 246 (2015)
UC Davis Legal Studies Research Paper No. 423

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

Deception and enticement have long been tools of the police, but new technologies have enabled investigative deceit to become more powerful and pervasive. Most of the attention given to today's advances in police technology tends to focus either on online government surveillance or on the use of algorithms for predictive policing or threat assessment. No less important but less well known, however, are the enhanced capacities of the police to bait, lure, and dissemble in order to investigate crime. What are these new deceptive capabilities, and what is their importance?

"Richard Delgado's Quest for Justice for All" Free Download
Law and Inequality: A Journal of Theory and Practice, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 421

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This is a contribution to a symposium celebrating Richard Delgado's illustrious career in law teaching. This commentary offers some thoughts on Delgado's contributions to pushing the boundaries of Critical Race Theory - and legal scholarship generally - in seeking to create a more just society. This ambitious program has been the overarching theme to his scholarly agenda throughout his career.

"Leaving No (Nonmarital) Child Behind" Free Download
48 Family Law Quarterly 495 (2014)
UC Davis Legal Studies Research Paper No. 414

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu

Almost ten years, in 2005, I wrote a piece for the Family Law Quarterly describing the legal status of children born to same-sex couples. This Essay explores the some of the positive and some of the worrisome developments in the law since that time. On the positive side, today many more states extend some level of protection to the relationships between nonbiological same-sex parents and their children. Moreover, in many of these states, lesbian nonbiological parents are now treated as full, equal legal parents, even in the absence of an adoption.

There are other recent developments, however, that should be cause for concern. Specifically, this Essay considers recent legislative proposals that contract (rather than expand) existing protections for functional, nonmarital parents. I conclude by arguing that while advocates should celebrate the growing availability of marriage for same-sex couples, they must also be careful not to push legislative efforts that inadequately protect the large and growing numbers of families that exist outside of marriage.

"Amici Curiae Brief of Family Law Professors in Obergefell v. Hodges" Free Download
UC Davis Legal Studies Research Paper No. 420

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu
JOAN HEIFETZ HOLLINGER, University of California, Berkeley - School of Law
Email: joanhol@law.berkeley.edu

This Amici Curiae brief was filed in the Supreme Court on behalf of 74 scholars of family law in the four consolidated same-sex marriage cases.

The two questions presented in the cases concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Those defending the marriage bans rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the "optimal" setting for raising children is a home with their married, biological mothers and fathers. The brief demonstrates that these asserted rationales conflict with basic family laws and policies in every state, which tell a very different story.

"Fracking and Federalism: A Comparative Approach to Reconciling National and Subnational Interests in the United States and Spain" Free Download
Environmental Law, Vol. 44, No. 4, 2014
UC Davis Legal Studies Research Paper No. 424

ALBERT LIN, University of California, Davis - School of Law
Email: aclin@ucdavis.edu

Hydraulic fracturing presents challenges for oversight because its various effects occur at different scales and implicate distinct policy concerns. The uneven distribution of fracturing's benefits and burdens, moreover, means that national and subnational views regarding fracturing's desirability are likely to diverge. This Article examines the tensions between national and subnational oversight of hydraulic fracturing in the United States, where the technique has been most commonly deployed, and Spain, which is contemplating its use for the first time. Drawing insights from the federalism literature, this Article offers recommendations for accommodating the varied interests at stake in hydraulic fracturing policy within the contrasting governmental systems of these two countries.

"Access to Justice in Rural Arkansas" Free Download
UC Davis Legal Studies Research Paper No. 426

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
J. CLIFF MCKINNEY, Independent
Email: cmckinney@QGTlaw.com
JULIANA FEHRENBACHER, Independent
Email: jfehr@ucdavis.edu
AMY DUNN JOHNSON, Independent
Email: adjohnson@arkansasjustice.org

This policy brief, written for and distributed by the Arkansas Access to Justice Commission, reports two sets of data related to the shortage of lawyers in rural Arkansas. The first set of data regards the number of lawyers practicing in each of the state's 25 lowest-population counties and the ratio of lawyers per 1,000 residents in each of those counties. This data is juxtaposed next to the poverty rate and population of each of county.

The policy brief also reports the results of a survey of Arkansas lawyers and law students, the latter from both the University of Arkansas Fayetteville Law School and the University of Arkansas at Little Rock/Bowen School of Law. These surveys probed respondents' attitudes toward rural practice, among other matters. The policy brief reports a summary of those responses. Finally, the policy brief reports on a 2015 legislative proposal aimed at alleviating the shortage of lawyers serving rural Arkansans.

This policy brief is a forerunner to a fuller, academic analysis of these and other data sets relevant to the geography of access to justice in Arkansas. That analysis will appear in an article that will be published by the University of Arkansas at Little Rock Law Journal (forthcoming 2015). The authors anticipate that these investigations in Arkansas may provide a model for other states concerned about the shortage of lawyers working in rural areas.

"Using Taxes to Improve Cap and Trade, Part I: Distribution" Free Download
75 State Tax Notes 99 (2015)
UC Davis Legal Studies Research Paper No. 425

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

In this article, the first of a series, we analyze the distributional issues involved in implementing U.S. state level cap-and-trade regimes. Specifically, we will argue that the structure of California's AB 32 regime will unnecessarily disadvantage lower-income Californians under the announced plan to give away approximately half of the permits to businesses and pollution-emitting entities.

 

April 24, 2015

How Best to Understand State Religious Freedom Restoration Acts (RFRAs)

Cross-posted from Justia's Verdict. Part one in a two-part series of columns. Co-authored with Alan Brownstein.

Over the past month or two, religious accommodation laws that have been enacted or proposed by states have attracted much attention in the media and among legal analysts. Such state laws are often called Religious Freedom Restoration Acts, or RFRAs-named and patterned after the federal RRFA adopted by Congress after the Supreme Court's 1990 decision in Employment Division v. Smith, where the Court interpreted the First Amendment free exercise protection narrowly to reject a claim by Native Americans to use the prohibited drug peyote for religious purposes. RFRAs require that before government is allowed to impose a substantial burden on the practice of someone's religion, the government must have a compelling objective that cannot be accomplished by any narrower means for doing so. State RFRAs have been around in some states for a few decades, but this spring saw a new round of state legislative activity in places like Indiana and Arkansas, presumably triggered by the anticipated tension between the tenets of some religions and the ruling most analysts expect the U.S. Supreme Court to render this summer making clear that the legal institution of marriage cannot be denied to same-sex couples.

Other Verdict columnists have already offered insights and arguments about the best way to understand and interpret state RFRAs. In this two-part series, we offer our own take on the state RFRA movement and how best to incorporate it into a nation dedicated to free religious exercise and separation of church and state at once. In Part One, in the space below, we offer some reactions to the doctrinal analyses presented in a recent essay by Verdict columnist Michael Dorf. In Part Two, in a few weeks, we widen the focus to examine more fundamentally how and when state RFRAs came about and what their origin should mean for how they should be implemented.

Mike Dorf's Analysis of State RFRAs in the Context of Private Litigation

Mike Dorf's elegant doctrinal analysis of state RFRAs focuses on whether these laws "should apply in private litigation [i.e., litigation in which neither party is a government entity] if the statute is silent on the matter." Mike offers a couple of arguments for why state RFRAs perhaps ought not to apply to private lawsuits altogether. His first argument begins with a reminder that RFRAs are designed to "restore" the "constitutional right to free exercise of religion that was weakened by the U.S. Supreme Court in its 1990 peyote decision. Because a RFRA restores a constitutional right that applies only against the government, it is natural to assume that a RFRA should be available only in litigation against the government."

But, as Mike rightly points out, oftentimes constitutional rights are at stake and vindicated in cases in which the government is not a party, but in which a party is using some law or policy the government has adopted as the basis for its legal position. So, for example, when a public-figure plaintiff sues a magazine under the state tort law of defamation, the defendant can properly invoke the First Amendment as a defense, even though the plaintiff is a private individual rather than the government, because the plaintiff is relying on state-adopted tort law for his claim. It is the state, through the creation of its tort law, that is effectively burdening the defendant's speech.

Or, as in another example Mike offers, if a state passes an alimony law that treats men and women unequally, such a law can be challenged in a lawsuit between a divorcing husband and wife, even though the state is not a party, because one of the parties is so directly invoking the state law as the basis for asking a court to do something.

Mike properly acknowledges that even in the context of religion, a state's fingerprints can be all over a burden imposed on someone's religion, even if the state is not doing the litigating. So, for instance, if a state gives a landowner's neighbor a right to veto the landowner's decision to expand his building, and a church that wants to expand is blocked by a vetoing neighbor, the church might seek to invoke the free exercise of religion as a basis for resisting the veto, even if the opposing party in the lawsuit is the neighbor to whom the state has given the veto right instead of the state agency itself.

Does Private Litigation Under a RFRA Implicate State Action in a Way Different From Cases in Which Government Is a Party?

After all this, however, Mike argues that the state's involvement in RFRA cases is distinct in a way that perhaps argues against allowing state RFRAs to be invoked in private litigation. Says Mike, about the examples he offered earlier: "When [a defamation defendant] invoked the freedom of the press against [the defamation plaintiff], it objected that the [state] tort rule was defective in permitting a public figure to prevail [under a standard] that afforded insufficient protection for free speech. . . [And] [w]hen [a husband] resisted his alimony obligation, he complained that the [state] statute favoring women over men denied him equal protection of the laws. In these, and many other situations, the party invoking a rights provision in private litigation argues that some legal rule or standard violates his, her or its own rights. In contrast, a RFRA claim does not challenge any rule or standard."

Here is where we think we disagree with Mike. A RFRA claim does challenge a rule or standard-the rule or standard on which the private party opposing the religious claimant is relying in the private litigation. The fact that the right a RFRA claimant seeks to invoke is a statutory (RFRA-created) right to religious accommodation, rather than a constitutional right (such as the right to free speech or equal protection), is beside the point; remember, RFRAs are designed to "restore," by statute, the liberties previously recognized under the First Amendment's Free Exercise Clause. The RFRA claimant has been conferred a right, just as much as a free speech or equal protection claimant has been. And state law, it is alleged in RFRA cases, is protecting the other party's ability to violate that right-by substantially burdening the religious claimant's exercise of his or her religion.

Mike's instinct that a RFRA claimant is not alleging that any state law creating a burden is "defective" is understandable but, we think, wrong. A law challenged by a RFRA claimant is indeed "defective" in the legally technical but important sense that it (allegedly) fails to adequately accommodate religion, which is what the RFRA seeks to guarantee. In the defamation case alluded to above, state tort law wasn't defective in any a priori sense; it was defective only in the sense that it failed to sufficiently accommodate free speech. And RFRA claimants make the same claim as to religion.

Indeed, the example Mike offers concerning the neighbor's veto over land-use decisions seems to illustrate our point. If a church's plans to expand are blocked by a zoning board, clearly the church could invoke both the First Amendment prior to 1990, and a state RFRA nowadays. The same should be true if the opposing party is not the zoning board, but the vetoing neighbor. The law giving the neighbor veto power is defective not in a generic sense, but only in the sense that it may have the effect of frustrating religious freedom. Yet it ought not to matter whether the opposing party is the government or the neighbor himself, or whether the claim is brought under the First Amendment (before it had been watered down) or a RFRA (that seeks to reclaim the undiluted religious right).

We think our analysis makes sense in part because a state can (and often does) elect to have a lot of different kinds of laws enforced through private causes of action-and when it chooses to do so we often find there to be "state action" in the enforcement. The Supreme Court's willingness to find state action involves several factors and seems to vary depending on the particular freedoms that are at issue. We note that the Court has taken a particularly expansive approach to state action in interpreting the Establishment Clause, and it would not be unreasonable to argue that a similarly expansive understanding of state action should apply Free Exercise values. And if there is state action, if the burden would be sufficient to trigger free exercise review if the state itself enforced the law, why should it make any difference if the law is enforced by a private party?

What About Third-Party Burdens?

Mike's second argument for perhaps not applying state RFRAs to private litigation arises from the fact that in all private litigation, accommodating religion creates "the potential for substantially burdening a third party." And the Supreme Court, in the recent Hobby Lobby decision and elsewhere, has given indications that accommodating religion when such accommodation takes the form of inconveniencing government is one thing, but religious accommodations that impose on third parties may be another thing entirely.

Like Mike, we think third-party burdens ought to figure prominently in any application of state RFRAs. But we are not sure a prophylactic rule prohibiting invocation of a RFRA in all private litigation is necessary to properly take account of third parties. Because state law may allow private individuals who don't suffer much, if any, injury to be in litigation against religious adherents (remember that state courts are not limited by the Constitution's Article III standing rules), and because some third-party injuries may be of such a nature that avoiding them cannot reasonably be thought to be a compelling government interest, we think the better course is not to categorically reject RFRA claims in private litigation, but to examine any third-party burdens on a case-by-case basis. When racial or gender discrimination is at issue, the third-party costs will justify denying the accommodation. But imagine the following two hypotheticals:

  1. Suppose a municipal stadium district has a rule that says no one can wear hats taller than 5 inches to sporting events, because people's views get blocked, and allows for a private right of action in small claims court by aggrieved persons. Suppose someone wears a turban to a football game, and gets sued for $500 by another fan seated behind him who had to stand up more often to see the action.
  2. Or suppose a City bans discrimination in the provision of goods and services against people who openly display tattoos. A religious small businessperson who runs his business out of his home declines to serve a patron because the patron refuses to cover up a sexist tattoo on his upper arm, and display of such an image in the home violates the religious tenets of the businessperson. The aggrieved customer sues.

In both of these examples, accommodating religion does create some state-recognized burdens on third parties. But are they the kinds of burdens that would justify a flat, prophylactic rule prohibiting invocation of a RFRA in all private litigation? We are not yet sold on that. Thus, if a state RFRA does not by its terms prevent its application to private litigation (and, of course, every RFRA must be interpreted in light of its own language, read in the context of the entire statute), we think the better course may be to examine each such private litigation case on an individual basis, to look carefully at the extent of state action and third-party burdens.

In Part Two of this series, we locate state RFRAs in a larger historical and doctrinal context, and offer some thoughts on how to give meaning to state RFRAs while avoiding some of the externalities and complications with which Mike is properly concerned.