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April 18, 2014

Professor Bennoune on "Ijtihad: Feminism & Reform in Islam"

Professor Karima Bennoune, author of "Your Fatwa Does Not Apply Here: Untold Stories from the Fight Against Muslim Fundamentalism," recently appeared at this event on Capitol Hill. Organized by the group Muslims for Progressive Values, the event was titled "Ijtihad: Feminism & Reform in Islam."

Here is the event poster.

April 17, 2014

Dean Johnson Delivers Lecture on Immigration Act of 1965 at University of Cincinnati

Dean Kevin R. Johnson delivers a lecture today at the University of Cincinnati College of Law. Here is the web announcement:

UC College of Law to Host Discussion on Immigration Act of 1965 and Its Impact

The lecture by Dean Kevin Johnson of the University of California-Davis School of Law will highlight the Immigration Act of 1965 and its impact on Latina/Latino immigrants. The April 17 event is open to all.

The community is invited to join UC College of Law students, faculty and staff for "Beginning of the End: The Immigration Act of 1965 and the Emergence of the Modern U.S./Mexico Border State," a lecture by Dean Kevin Johnson, University of California-Davis School of Law.

The lecture will be held  at 12:15 p.m., Thursday, April 17, in Room 118 of the College of Law building. All are invited to attend. In the lecture, Johnson will reflect on the Immigration Act of 1965, the amendments to the act that followed and the impact of the act and amendments on Latina/o immigrants.

About the Speaker
Kevin R. Johnson is dean, Mabie-Apallas Professor of Public Interest Law, and professor of Chicana/o studies at the University of California-Davis, where he has been since 1989. Johnson is a preeminent and prolific scholar, teacher and advocate in the areas of immigration law, civil rights, Latino/as and the law, and critical race theory.

His scholarly works include such books as "The Huddled 'masses' Myth: Immigration and Civil Rights," "Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws" and "Immigration Law and the U.S.-Mexico Border," which received the Latino Literacy Now's International Latino Book Award - Best Reference Book. Johnson has been regularly quoted in The New York Times, Los Angeles Times and other international news sources.

Johnson's teaching and advocacy have been recognized by various institutions throughout the country. He has been the recipient of the American Association of Law School's Clyde Ferguson Award (2004), the Hispanic National Bar Association's Law Professor of the Year Award (2006), the National Association of Chicana and Chicano Studies Scholar of the Year Award (2008) and was honored with the Central American Resource Center Romero Vive Award for his outstanding work and commitment to social justice and immigrants (2012). 

This event is sponsored by the Immigration and Nationality Law Review.

About the Immigration and Nationality Law Review at the College of Law
The Immigration and Nationality Law Review focuses on student advocacy in the area of immigration and nationality law. While primarily focused on immigration law, which seeks to define who may enter and reside in a country, INLR incorporates subject matter well beyond immigration. In particular, the INLR addresses issues of nationality which considers the formal relationship between a citizen of a nation and the nation itself. Since immigration and nationality work together to delineate citizenship and residency, they play an important part in the ongoing dialogue regarding national identity. Moreover, immigration and nationality frequently implicate issues of race, gender, class and national security.

April 11, 2014

The Narrow (and Proper) Way for the Court to Rule in Hobby Lobby’s Favor

Blog entry cross-posted from Justia’s Verdict. Co-authored with Professor Alan Brownstein.

The Sebelius v. Hobby Lobby Stores case argued before the Supreme Court last week raises the question whether the Hobby Lobby chain of arts and crafts stores is entitled, under the Constitution or the federal Religious Freedom Restoration Act (RFRA) to be exempt from the requirement in Obamacare that employers who provide health insurance to their employees include in the insurance policy certain forms of contraceptives, the use of which for some persons (including the owners of Hobby Lobby) is forbidden by religious principles. Many commentators, ourselves included, predict that Hobby Lobby will win the case, and be found to be exempt from the Obamacare requirements by virtue of RFRA.

Yet at the oral argument, many Justices, especially Justices Ginsburg and Sotomayor but also Chief Justice Roberts, pressed Hobby Lobby’s lawyer, Paul Clement, on just how far his religious-exemption argument might extend. Right out of the gate, Justice Sotomayor asked him about religiously-inspired objections to vaccines and blood transfusions. Moving beyond healthcare mandates to other federal regulations of employers, Justice Kagan asked, a few moments later: “So another employer comes in and that employer says, ‘I have a religious objection to sex discrimination laws’; and then another employer comes in, ‘I have an objection to minimum wage laws;’ and then another, child labor laws. And [under] all of that [the federal government can win only if it satisfies] the exact same test [for RFRA you describe today,] which you say is this unbelievably high test?

If, as we expect, Hobby Lobby prevails, it will be very important for the preservation of other important legal principles and public policies that the Court not rule in Hobby Lobby’s favor on too broad a basis. In the space below, then, we try to identify how an opinion in Hobby Lobby’s favor should—and should not—be crafted.

Do Corporate Entities Enjoy Protection Under the RFRA?

Let us turn first to one key question under RFRA—whether its protections extend beyond natural persons to corporate entities like Hobby Lobby (a closely held for-profit “S” Corporation owned by the Green family.) We think RFRA can be found to apply, but that the Court should make clear that RFRA is designed to protect religious freedom of conscience and that a corporation itself does not have a conscience in the same sense that human beings have a conscience.

Some commentators argue that just as the Supreme Court held that corporations are persons for freedom of speech purposes in the Citizens United case, corporations must be considered persons in free exercise or RFRA cases as well. We think that analogy is mistaken, and that grounding a decision in Hobby Lobby’s favor on this analogy would be unnecessarily expansive. Freedom of speech in the context of political expenditures by corporations is an instrumental right. We protect it because of its utility for democratic decisionmaking. In Citizens United, the Court held that corporations are persons for free speech purposes for explicitly instrumental reasons—because corporations can present voices or perspectives that should be part of the marketplace of ideas.

Freedom of religion and conscience are dignitary rights. Our society protects them not because doing so serves some instrumental goal, but because accepting and living one’s life based on religious beliefs, or deciding not to live a religious life, is part of what it means to be human. Government must respect the right of human beings to make self-defining decisions and to live their lives authentically in light of those choices.

Corporations have no such dignitary rights. They do not love. They do not feel guilt or shame. They have no conscience. They will not stand before G-d to answer for their sins after they die, because they are not human. They are artificial entities that exist in perpetuity. We are inclined to agree with Chief Justice Rehnquist’s dissenting opinion in Pacific Gas and Electric Co. v. Public Utilities Commission of California (a compelled speech case), where he wrote: “Extension of the individual freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point. To ascribe to such artificial entities an ‘intellect’ or ‘mind’ for freedom of conscience purposes is to confuse metaphor with reality.” Bluntly, if we are talking about corporations in a formal sense, corporations do not have religious liberty rights.

However, in many cases corporations can be viewed as the representative of or—as our UCLA colleague Eugene Volokh has suggested—a “proxy” for individual persons and groups. Whatever protection society provides to the corporate form is intended to recognize and protect the dignity not of the entity but, of the entity’s owners or managers. An incorporated church or a religious non-profit organization satisfies this criterion. A closely-held corporation like Hobby Lobby that is not publicly traded, and that is owned by a small number of actual individuals, does so as well.

Thus, the Court could hold that RFRA protects the conscience of the owners of Hobby Lobby notwithstanding their decision to do business in a corporate form. But it should make it clear that no such argument justifies protecting the conscience of publicly-traded corporations such as General Motors or Exxon. While Justice Roberts intimated that closely-held corporations could be distinguished from publicly-traded corporations, and that the protection provided to the latter by RFRA need not be decided in this case, a more prudent and limited opinion, and one that reflects the proper understanding of dignitary rights, could resolve this question in definitive terms once and for all.

The Strict Scrutiny Test, and (the Very Limited) Relevance of Statutory Exemptions in Assessing the Weight of the Government Interest

The most important issues that the Court will have to navigate in drafting a narrow opinion relate to the standard of review imposed by RFRA. To satisfy RFRA, the government must justify its regulations under strict scrutiny; that is, the government must demonstrate that its regulations are the least restrictive way to further a compelling governmental interest. Hobby Lobby wins its case if the government fails on either prong of this rigorous standard of review.

It is important in this case to examine each of these prongs separately. Several arguments presented to the Court attempt to establish that the government lacks a compelling interest to require the cost-free provision of medical contraceptives to employees who are provided health insurance. We think these arguments are wrong on the merits, in part because they are extremely broad and expansive in their implications. If the Court concludes that the government lacks a compelling interest in Hobby Lobby, many religious claimants might successfully challenge a very wide range of laws under RFRA.

In response to the somewhat obvious intuition that women need access to contraceptives for important birth-control and health reasons, and the fact that often the safest and most effective contraception is also among the most expensive, Hobby Lobby argues that Obamacare’s preventive medicine regulations are so underinclusive that the government interests can’t be compelling. The fact that businesses that employ fewer than 50 full-time employees are not required to offer any health plan to their employees, and the fact that many current health plans that do not include cost-free preventive medicine coverage are “grandfathered in” under Obamacare so that they continue to operate without change are said to demonstrate that the government itself does not treat the public health interest it is asserting as if it were a particularly important concern.

We think Solicitor General Verrilli effectively challenged this contention during oral argument. The fact that a law is underinclusive often has little bearing on whether the government’s goal that it furthers is compelling. Important civil rights laws, such as Title VII (which prohibits race discrimination by employers), often exclude small businesses from their coverage. Indeed, most laws have more exceptions to them, or limitations to their applicability, than their basic purposes might suggest. It is common for government to serve very important interests while moving forward in a piecemeal fashion to accommodate other non-trivial interests, particularly when it is breaking new regulatory ground. And new legislative programs serving compelling interests, such as the American with Disabilities Act, may be phased in to their operation without the phase-in suggesting that the interest being served is unimportant. It is hard to argue that the government lacks a compelling public health interest in making preventive medical services more available because—in the herculean task of transforming the provision of health care in the United States—it has grandfathered in some existing plans to protect important reliance interests and to facilitate a smoother transition to the new health care system. Most problematically, if the Court holds that the government lacks a compelling state interest in Hobby Lobby, all laws with exclusions, exemptions, limitations in applicability or phase-in periods would be vulnerable to similar RFRA challenges.

Narrow Tailoring—and A Plausible Narrow Way Out in the Hobby Lobby Dispute

The second prong of the RFRA standard—which asks whether the preventive medicine regulations are the least restrictive means to accomplish the government’s compelling state interest—provides a much narrower foundation for ruling in Hobby Lobby’s favor. Here, one arguably less restrictive means by which the government could achieve its goals that seemed to generate support from several Justices at oral argument was for the government to exempt employers asserting religious objections from the regulations, while arranging for the employees of such exempt employers to receive medical contraceptive insurance coverage from an alternative source—with either the insurance company providing the coverage or the government itself incurring the cost of these benefits. Indeed, the government already grants an accommodation to religious non-profits (recall that Hobby Lobby is for-profit), and requires health care insurers to provide the disputed coverage to the employees of the accommodated non-profit employers at the insurer’s own cost. A similar accommodation could be extended to closely held for-profit employers who object to the regulations on religious grounds.

It is important to note here that this alternative would be unavailable in most cases where a for-profit business seeks a religious exemption from a general regulation; the preventive medicine insurance coverage mandated by the Affordable Care Act is an unusual regulatory scheme in important respects. The benefits provided by the Act—generally available and affordable health insurance—are fungible, intangible goods that can be provided by either the public or private sector. And the Act’s beneficiaries have no reason to care about the source of the insurance.

This is not your ordinary workplace regulation. Both the goal and the operational design of the Affordable Care Act are directed toward providing affordable health insurance to all Americans, whether they are in a workplace or not. Employers are used simply as a convenient instrument to distribute healthcare to many Americans—but that is incidental to the ultimate purpose of the legislation. Indeed, for many Obamacare backers, providing these benefits through the healthcare plans of private employers was the second-best alternative. A government health insurance (“single payer”) program was thought by some to be the most desirable and efficient way of guaranteeing affordable health insurance in our society.

In other circumstances, including many mentioned by the Justices at oral argument, if the government has to bear the cost of providing religious accommodations to employers, the price tag might be prohibitively high. Or any meaningful accommodation might involve interventions that are unacceptably complex and individualized. Or, as Paul Clement pointed out, in some cases—such as RFRA claims for exemptions from civil rights laws prohibiting discrimination—the unavoidable harm caused by granting an accommodation would simply be too great. But none of those problems would arise if the government provided supplemental insurance coverage (or required health plan insurers to do so) to the employees of religiously-exempt organizations like Hobby Lobby. Indeed, if the government provided the insurance coverage, it could limit its costs in doing so by requiring any accommodated business (e.g., Hobby Lobby) to contribute whatever funds it saved by not providing the contraceptive coverage to some other public good identified by the government that would be consistent with the employer’s faith, and on which the government would otherwise be spending the public’s money. (Exempt employers would be required to offer alternative contributions to satisfy their civic obligations, in much the same way that a religious pacifist exempted from conscription as a conscientious objector would be required to perform alternative service as a condition to receiving an accommodation.)

A decision in Hobby Lobby’s favor on these “least restrictive alternative” grounds would not be completely sui generis. It would apply to some other cases. But it would be the narrowest basis for a holding in Hobby Lobby’s favor. At a minimum, it would guarantee that the Court’s decision would provide no direct support to RFRA claims for exemptions from civil rights laws.

Would Granting Hobby Lobby an Accommodation Violate the Establishment Clause?

There is one final issue about the scope of any opinion the Court will issue that has to do with a constitutional question concerning the scope of RFRA. Several commentators and amici have argued that it will violate the Establishment Clause of the First Amendment if the Court rules in Hobby Lobby’s favor. They argue that the Establishment Clause imposes a cap or limit on religious accommodations. An accommodation violates the Establishment Clause if it goes too far and imposes too heavy a burden on third parties or the general public. Such a violation will occur if Hobby Lobby is exempt from the medical contraceptive regulations, the argument runs, because Hobby Lobby’s employees will not receive valuable public health benefits to which they would otherwise be entitled. Religious exercise cannot be privileged by accommodations if doing so imposes such a heavy cost on third parties.

One expansive rejoinder to this argument challenges the contention that the employees of an exempt employer will be harmed by the accommodation. The employees had no “right” to these benefits, after all. The government was not obligated to mandate the provision of no-cost health insurance for preventive medicine to these employees or anyone else. Indeed, the benefits are available only because of the very law to which Hobby Lobby claims to be exempt. The government isn’t harming or taking something away from employees if it (through the enactment of RFRA) decides not to provide as many benefits as it might, in order to protect religious liberty.

We think this rejoinder is overly broad and mistaken on the merits. An analogy to an early religious freedom ruling by the Court might help make the point. In some ways, the Establishment Clause argument here is the flip side of the Free Exercise claim upheld in Sherbert v. Verner, the seminal case in which the Court held that the state violated the free exercise rights of a Seventh-day Adventist when it denied her unemployment compensation because she refused jobs that required her to work on the Sabbath. In that case, as in the Affordable Care Act setting, the government was under no obligation to provide unemployment benefits to anyone, and therefore might be thought to have been free to deny benefits to persons who refused appropriate job offers. The fact that the state created the benefit scheme through an act of political discretion made no difference to the Court’s free exercise analysis in Sherbert, however, and we think it should make no difference to the application of the Establishment Clause in Hobby Lobby.

As a general matter, we believe that the loss of generally available benefits to which one would otherwise be entitled is a cognizable harm for both Establishment Clause and Free Exercise Clause purposes. Thus, denying an individual a generally available benefit to which she would otherwise be entitled, in order to accommodate some other person’s religious practice, is a cognizable harm for Establishment Clause purposes. And denying an individual a generally available benefit to which she would otherwise be entitled if she obeyed the dictates of her faith is a harm for Free Exercise purposes.

There is, as should be clear from our earlier analysis, a narrower ground for rejecting the argument that a judicial finding in Hobby Lobby’s favor will violate the Establishment Cause. If the Court finds in favor of Hobby Lobby, it will basically hold that if the government wants to provide medical contraceptive insurance coverage for the employees of religious employers, it will have to choose some way to do that other than by substantially burdening the employer’s religious liberty. The Court may then conclude that this holding, standing alone, does not violate the Establishment Clause because the government still retains alternative ways to accomplish its goals without burdening either the religious exercise of objecting companies or third parties. The government, as we suggested, could pick up the cost of the insurance coverage itself, and provide coverage to the employees of religiously-exempt organizations directly, or it could assign that obligation to health plan insurers—as it has done with the accommodations for religious non-profits. (And again, if it wanted to, the government could seek—and then redistribute—money from the exempt for-profit companies who are saving dollars by not offering the coverage.) This rejoinder to the Establishment Clause concern might not be available in many cases, but it is available in Hobby Lobby, and therefore should be invoked as a basis for narrowly deciding this case.


April 2, 2014

From Anti-drone Burqas to Face Cages: What Artists Are Showing Us about Surveillance and the Law

Cross-posted from The Life of the Law.

Remember pagers? As outdated as they seem now, these were once seen as the technological tool of choice for drug dealers (to say nothing of doctors). The police also used to rely on “bumper-beepers” to track suspects in criminal investigations. There has always been an arms race of technology in crime and policing.

Today, most people have some passing familiarity with the rapidly changing world of surveillance: the revelations about the NSA’s bulk phone metadata collection, the emergence of unmanned drones, and the growing sophistication of biometric technology.

The problem is that most people aren’t well-versed in the Fourth Amendment’s third party doctrine, or the “business records” provision of the Patriot Act. The complexity of the law in these areas–and the fact that the concepts aren’t that intuitive–makes public debate about the appropriate scope of government surveillance difficult.

That’s where the artists come in.

There are a small but growing number of visual artists and designers who have raised questions about the tools of government surveillance in direct, provocative, and accessible ways.

Case #1: Brooklyn-based designer Adam Harvey has created a series of wearable objects that draw attention to the tools of mass surveillance. His Stealth Wear line of “anti-drone” clothing is made of a special fabric intended to thwart thermal imaging devices that could be mounted on unmanned police surveillance drones. (The FAA is in the midst of crafting regulations for a future in which unmanned drones will occupy our public airspace.) The state of the law on drones is changing. Although the Supreme Court’s Fourth Amendment cases probably don’t require the police to obtain a warrant for their use, many state legislatures are considering statutory limits. What Harvey’s work highlights in a direct and arresting way, however, is that the prospect of sophisticated eyes in the skies might force us to change our public habits, even our clothing, if we wish to retain some anonymity or privacy.

Case #2: The police and Facebook alike are becoming interested in the capabilities of facial recognition technology. This biometric computer software can scan a picture of a face and compare it to a database of stored information. The computer algorithms in the software typically focus on the areas around the eyes, nose, and mouth. Artist Zach Blas’s Face Cages takes this idea and makes it literal: a painful metal mask that represents the areas targeted by facial recognition technology. Scanning faces in a crowd, like the use of unmanned drones in public spaces, is a murky legal area. The Supreme Court’s Fourth Amendment cases probably don’t provide individual protections against these biometric technologies. But Blas’s work suggests how such technologies may be “trapping” us in ways that nevertheless threaten widely held beliefs about privacy.

Case #3: New York based artist Heather Dewey-Hagborg’s Stranger Visions project takes on another cutting edge technology: the growing capacity of government to collect and analyze our genetic information. The art involves extracting DNA from discarded items Dewey-Hagborg finds in public spaces, such as cigarette butts and chewing gum. She then has the DNA extracted from these discarded items analyzed for specific genomic sequences associated with physical traits like hair and eye color, and creates life-size three dimensional masks of the persons she has “identified” from their garbage. Dewey-Hagborg’s faces are a best guess about the source of the DNA (although a recent scientific paper suggests that predictive modeling based on unidentified DNA samples could one day soon be a reality). The point isn’t accuracy, though. The Stranger Visions project asks us to confront directly how we feel about the fact that we are leaving genetic information behind everywhere we go. Should that information be considered as devoid of privacy expectations as the literal trash we throw away? Do we feel comfortable that third parties—both governmental and commercial—might be able to identify who we are from our genetic traces? The law here, too, is unclear at best.

Enormous technological changes are making it possible for us to be identified, watched, and listened to in ways that were once unimaginable. What we should do about these changes is difficult because the surveillance is sometimes surreptitious, often complicated to understand, and undetermined with regard to is regulation.

Art has the power to question, provoke, and reveal new truths to us. These artists are opening up the conversation about the place of surveillance and the law in our lives to anyone willing to watch and to listen.

Feature photo: Anti-drone burqa, Adam Harvey

March 31, 2014

Professor Jack Chin Presents Leary Lecture on Intersection of Immigration Law, State Laws

Professor Jack Chin delivered the Leary Lecture at the University of Utah S.J. Quinney College of Law today. Here is the web announcement from Utah.

March 31 Leary Lecture to Focus on Intersection of Immigration Law, State Laws

For 150 years, states have fought Congress for the power to control authorized and unauthorized migration. The immigrant stream continues to change the demographics of the nation, and immigration’s economic effects are debated in the midst of a tough job market. On March 31, Professor Jack Chin will deliver the 48th Annual Leary Lecture, “The Endless Battle for State Immigration Crimes,” at the University of Utah S.J. Quinney College of Law. The 12:15 lecture, to be held in the Sutherland Moot Courtroom, is free and open to the public.

“Jack Chin is one of the leading scholars on the intersection of immigration law and criminal law,” Professor Robin Craig said. “His Leary Lecture reflects a career's worth of research and thought, as well as Professor Chin's acute observations of the real world.”

In the context of the current debate about immigration, a number of states and localities have become interested in using their own police, laws and courts to address what some consider an invasion, taking place in open disregard of the nation’s laws. “What could be wrong,” they ask, “with helping the federal government carry out its own laws?” This lecture will address the constitutionality of the recent wave of state and local laws dealing with immigration, the Supreme Court’s decisions on the matter, President Obama’s administrative amnesties, and the SAFE Act, pending in Congress, which would explicitly allow the states to enact their own immigration laws, so long as they were consistent with federal law.

Gabriel "Jack" Chin teaches at the UC Davis School of Law where he specializes in criminal law, immigration and race and law. He is an award-winning scholar whose work has been published in the Cornell, UCLA and Penn law reviews, and the Yale, Duke and Georgetown law journals. His scholarship has been cited four times in the U.S. Supreme Court in cases dealing with prosecution of immigrants.

The 48th Annual Leary Lecture is free and open to the public. One hour free CLE available. The event will be streamed live at and archived for future viewing.

The Leary Lecture is named in honor of William H. Leary, the College of Law’s dean from 1915 to 1950, who was renowned for his intellectual rigor and love of teaching.

March 28, 2014

Is Tim Draper’s Six Californias Plan to Split the State Legal Under California Law?

Cross-posted from Justia's Verdict.

In early January, I wrote about Silicon Valley billionaire Tim Draper's proposed initiative ("Six Californias") that seeks to bring about a division of California into six separate states. As I explained, many large hurdles the plan faces are political-perhaps the biggest one being the requirement of federal legislation approving the creation of any new states. Specifically, because Mr. Draper's plan would for the foreseeable future likely hurt the Democratic Party's representation in the U.S. Senate and (even more so) in the electoral college, Democrats in Congress and the White House would be disinclined to approve the idea.

But putting political constraints aside, I also mentioned in January some possible legal challenges to Mr. Draper's initiative. Now that the measure's adherents are in the process of gathering signatures to place the proposal before the voters, the time is ripe to begin addressing in more depth these potential legal problems. Today I analyze one key issue-whether the measure might be blocked by California courts on the ground that the proposal constitutes a "revision" of the California constitution.

Can Californians Consent to a Break-Up Through a State Constitutional Amendment Initiative?

Let us start with a brief summary of the Six Californias initiative proposal. (Readers who want more background or detail can consult my January column.) The initiative provides for California's consent to the creation of six separate states out of what currently makes up the Golden State. The initiative sets up the basic geographic contours of the six new states, but the proposed lines separating each of the six are provisional; under the measure, over the next few years, any county that adjoins any of the proposed states can choose to become part of that contiguous state, provided that the counties that are provisionally in that neighboring state also agree to add such a county. On January 1, 2018, the Governor of California is to certify to Congress that California has consented to the creation of six separate states that are defined along the lines described in the initiative-subject to any modification that has occurred because some counties have successfully attempted to join contiguous proposed states-and to ask Congress to approve the creation of these six new states.

One big legal question this measure raises is whether the people of a state can validly cede territory for the creation of a new state through a popular initiative. This question actually has multiple parts. Article IV, Section 3, of the federal Constitution requires, for the creation of new states, the "Consent of the Legislatures of the States concerned," so one issue would be whether the California electorate can act directly as a "legislature" for these purposes, or instead whether the elected folks in Sacramento have to sign on, to satisfy the U.S. Constitution.

But today I dwell not on the federal constitutional aspects (to which I hope to return in later columns), but instead on California state law, and the distinction California draws between "revisions" of the state constitution and "amendments" to it. An "amendment" can be put on the ballot for voter approval if two-thirds of each house of the legislature votes to place it on the ballot or if enough voter signatures are gathered to qualify the measure (as Six Californias backers are trying to do). A "revision," by contrast, can appear on the ballot for voter consideration only if two-thirds of the houses of the legislature vote to place it, or if a legislatively proposed state constitutional convention decides to place it on the ballot. (Until a change in the state constitution in 1962, only constitutional conventions could propose revisions.) Thus, under current law, revisions must go through a process that starts in and runs through the legislature, whereas amendments can bypass the legislature altogether and rely on signature gathering.

How to Tell a Revision From an Amendment

The key and difficult question, of course, is what differentiates "amendments" from "revisions." The California constitutional text itself offers few clues, but the California Supreme Court-in rulings that span many decades-has told us that to determine whether something is a revision, we must look "quantitatively" (that is, to the number of existing constitutional provisions a proposed change affects or the number of words the proposed change involves) and "qualitatively" to see if the proposed measure "substantially change[s] our preexisting government framework," makes "a fundamental change in our preexisting governmental plan," or "involves a change in [the] fundamental structure . . . [of] California government." The court has, in more than one case, given a standard hypothetical example of such a change: a measure that would "vest all judicial power in the Legislature." Such an alteration in the respective powers of the judicial and legislative branches, says the court, would profoundly change the "scheme" of government so as to be a revision.

In Raven v. Deukmejian, a 1990 case and the most recent ruling by the court holding a measure to be a revision, the Justices considered an initiative that directed the courts of California to construe a set of state constitutional rights of criminal defendants to afford no more protection than that provided for by the United States Constitution. The California court found that this provision wrested power from the California Supreme Court to give independent meaning to a host of state constitutional liberties and provisions. In so doing, the Justices reasoned, the initiative told the California court how to do its job and made the California jurists simply puppets of the U.S. Supreme Court's Justices, who have the final say in determining the meaning of the federal Constitution: "[The measure] in practical effect, vests a critical portion of state judicial power in the United States Supreme Court, [which constitutes] a fundamental change in our preexisting plan of government."

In Raven, the court distinguished earlier cases in which it had rejected claims that initiative measures were revisions rather than amendments-including a case involving a measure that directed state courts to construe the state constitutional ban on "cruel and unusual punishments" to be no broader than the federal Eighth Amendment's prohibition. Those earlier cases, the court said, involved "isolated provisions," did not concern "far reaching, fundamental changes in our governmental plan," and did not amount to "a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution."

Raven is to be contrasted with the 2009 ruling in Strauss v. Horton, the California Supreme Court's most recent detailed examination of the revision/amendment distinction. In Strauss, the court overwhelmingly rejected the argument that California's initiative ban on same-sex marriage (Proposition 8) was a revision and therefore was improperly presented to the voters simply by signature gathering. The court held that, as important as equal protection and due process principles are, a denial of marriage eligibility and marriage equality does not constitute a fundamental change in the California government plan or framework. (Proposition 8 has since died in California for other reasons.)

How Would/Should Six Californias Fare Under the Revision/Amendment Formula?

On which side of the line should (would) the Draper proposal fall? While I am disinclined to make predictions, I think there is a forceful argument that dividing up the state into six new states ought to be considered a "change in [the] fundamental structure . . . [of] California government." For starters, when the Raven court's Justices (and earlier decisions) talk about "revisions," they almost always do so in terms of changes to the "plan," "scheme," or "structure" of government. "Plans," "schemes," and "structures," in constitutional law, are generally terms of art that refer to the division of authority between, and the relationship among, different government entities. These "structural" provisions and themes are often distinguished from the "rights" aspects of a constitution, which concern the relationship between all institutions of government, on the one hand, and private individuals (or groups of individuals), on the other. Dividing up a state certainly could affect individual rights, but such a division is first and foremost a matter of structure: structure is literally all about the edifice, about how something is put together, about constituent parts and elements, and how they do-or don't-fit together to form a whole.

And as to whether dividing up a state into six pieces is a major, pervasive change in (rather than an isolated alteration to) its essential structure, we might ask: What is of greater importance to a state than its geographic boundaries? As recent events in the Ukraine (and elsewhere) remind us, legitimate regulatory authority over people who reside in particular physical territories is largely how we define government. It is much of what we mean when we talk about the sovereignty of a nation or state. Tweaks in a state's boundaries (say, to assimilate former federal enclaves) may not implicate basic structure, but division of a whole state that has existed in its current form for a century-and-a-half into six separate new ones would be hard to characterize as anything but fundamental.

Uncertainty in How the Draper Measure Would be Resolved

Why, then, am I reluctant to predict with confidence that Six Californias, if challenged, would be struck down? (For these purposes I do not distinguish between a pre-election attack and a lawsuit filed shortly after the measure's adoption, although state courts may be more receptive to a challenge before the voters speak.) The first reason is that the revision/amendment test the court has cobbled together is itself open to a great deal of criticism, and thus might evolve further in subsequent cases. Why, for example, should we engage in a "quantitative" assessment at all? For example, if a state constitution, when written in the 1700s or the 1800s used "he" and "his" pervasively, and later on we wanted to alter it to say "he or she" and "his or her," should we conclude that this updating involves a fundamental change in the plan of government simply because of the number of words and provisions involved in the proposal? To be sure, there may be a correlation between the number of provisions affected and the basic importance of the proffered change, but we need not rely on such a correlation when we can examine the qualitative nature and scope of the change directly.

Moreover, and perhaps more basically, having to run all "fundamental structural changes" through the legislature may be a dubious notion after states like California adopted the initiative device in the early 1900s. Requiring the state legislature to approve (or convene a state constitutional convention to approve) measures that are themselves designed to check the legislature-and circumventing legislative inertia or self-dealing was precisely why direct democracy devices like the initiative came into being in the first place-seems odd.  (Legislative) foxes simply ought not to be allowed to guard (reform) henhouses.

Moving beyond the test the courts have articulated to distinguish revisions from amendments, and focusing instead on the results the judiciary has reached, we see more reasons to be cautious about predicting judicial invalidation of Six Californias. Raven is the only case in many decades to hold that a measure is a revision because it fundamentally changes government structure, and that case involved the court protecting its own powers. Indeed, notice that the specific things the court has in recent times said must go through the revision process-the hypothetical shift in power from state courts to the state legislature or (as in Raven) an actual shift from the California Justices to the United States Supreme Court-involve diminutions of judicial power in particular. Other significant changes to California government operations-the creation of the initiative device itself, the adoption of limits on legislative terms, massive changes in state and local tax power and tax revenue distribution, and the 1962 change that allowed the legislature to propose revisions without the need for a constitutional convention-have all been allowed to come about via amendments to the state constitution rather than revisions of it. And in at least a few of these instances the California Supreme Court explicitly rejected the claim that revision procedures should have been followed.

So while my sense is that Six Californias should be considered a revision (to the extent that the California courts continue to follow the test they have laid out), there is some chance that the measure, if challenged, would survive this attack.

Other Possible Counterarguments: Six Californias Does Not, by Itself, Change Anything in the World or the State Constitution

Six Californias proponents might try to argue their measure is not a revision because it does not actually change the state structure, but merely begins a process that could lead to a six-way split. To be sure, the precise lines between the six new states can undergo some tweaks, and congressional approval would be required before any new states were actually created. But the Draper measure does, by its own terms, assert that the measure, if enacted, would constitute the legislative consent by California that the federal Constitution requires for creating new states. That there needs to be another event (congressional approval) that takes place before the split goes into effect does not, to my mind, diminish the important change this measure brings about. Imagine, for example, that no congressional approval were required under the federal Constitution (and that only state approval were needed) but that the Six Californias measure, by its terms, made the proposed split contingent on California reaching the 40-million-resident mark. This condition subsequent (a condition that must occur before the old California borders are to be undone) would not diminish the fundamental change occasioned by enactment of the hypothetical measure. So too with the need for congressional approval.

Perhaps one could argue that my hypothetical is distinguishable because congressional approval is not just a condition subsequent like a population trigger, but is also a requirement for a deliberative process that is a safeguard against ill-advised break-ups of states. But I don't see how a national approval process could be a substitute for the more involved intra-California process through which revisions are supposed to go (as compared to signature-driven amendments). If there are valid reasons (and California law supposes that there are) for having a distinction between revisions and amendments within California (e.g., a more careful vetting process in the legislature), these reasons do not disappear by virtue of federal approval.

Indeed, to the extent the California Supreme Court has ever talked about conditions subsequent in initiative amendments, its discussion hurts, rather than helps, Six Californias.  In 1894, in Livermore v. Waite, the court addressed a challenge to a proposed measure to be submitted to the voters that would have moved the state capital from Sacramento to San Jose, but only if San Jose gave up some land and some money to facilitate the move. The court first rejected the notion that the measure had, as was required of all revisions at that time, to be generated by a constitutional convention, saying the measure wasn't fundamental enough to be considered a revision, but not relying at all on the condition subsequent as a basis for rejecting the revision challenge. But then the court said that, as a constitutional amendment proposal, the measure was unlawful and could not be submitted to the voters because its effect was conditional on San Jose's subsequent actions. If this reasoning were followed (and I hope it wouldn't be, because this part of Livermore makes little sense-why can't an amendment take effect only upon certain conditions?), then the Six Californias proposal would be blocked on that basis, and the only way California could consent to creating a new state would be through an act of the legislature (which is what the Livermore court said could be done if California wanted to move its capital).

A final argument supporters of Six Californias might make is that the proposal doesn't  really alter the California constitution at all, and thus can't be a revision of it.  The notion here would be that (notwithstanding that Six Californias mentions tweaking Article III of the California constitution), the California legislature already has the power to pass a simple statute to consent to divide up the State, so that Six Californias is not changing the state constitution-it is merely exercising ordinary legislative power.  On this view, Six Californias is thus best thought of not as a constitutional amendment initiative or a revision, but rather as a statutory initiative.  This argument has problems, though.  For example, it is not clear to me that the California legislature is given the free-wheeling power by the California constitution to pass an ordinary statute approving a break-up.  The California constitution does vaguely refer to California's boundaries having been "modified pursuant to statute" since 1849, but without more study of those statutes we cannot necessarily conclude the legislature is authorized by California law to pass simple statutes dissolving the entire State.  Of course, Article IV of the federal Constitution-which, by virtue of federal supremacy becomes the law of every state-arguably gives each state legislature the power to pass statutes approving the creation of new states within its borders (subject to federal approval), but this invocation of federal law doesn't directly confront the question whether California law contemplates that the people, acting directly and without going through vetting in the legislature, are permitted to exercise a power that radically alters the State plan, even if the legislature would (by virtue of Article IV) have statutory authority. That is the question posed modernly by the revision/amendment distinction, and I am not sure that question can be easily avoided by characterizing Six Californias as statutory.  But I readily acknowledge that these are tricky matters.

In later columns, I will (assuming Six Californias remains relevant) explore other legal claims raised by the proposal.

March 3, 2014

A Roundtable on the 1965 Immigration Act

Last Friday, Professors Jack Chin and Rose Villazor organized a day-long roundtable discussion at UC Davis School of Law of chapters of their forthcoming book, "Legislating a New America," on the 50th Anniversary of the Immigration Act of 1965. The book is under contract with Cambridge University Press and scheduled for release in 2015. 


The Immigration Act, which came on the heels of the Civil Rights Act of 1964, represented a monumental change to U.S. immigration law and, among other reforms, eliminated a discriminatory quotas system. 

Presenters and commentators included:

Atticus Lee, UC Davis Law

Bill Ong Hong, UC Davis Law

Brian Soucek, UC Davis Law

Gabriel “Jack” Chin, UC Davis Law

Giovanni Peri, UC Davis Economics

Jeanette Money and Kristina Victor, UC Davis Political Science

Kevin Johnson, UC Davis Law

Leticia Saucedo, UC Davis Law

Pratheepan Gulasekaram, Santa Clara School of Law

Raquel Aldana, McGeorge School of Law

Robyn Rodriguez and Valerie Francisco, UC Davis Asian American Studies

Rose Cuison-Villazor, UC Davis Law

Sarah Song, UC Berkeley School of Law

I must say that I was energized by the provocative and innovative quality of all the papers.  The book project will be extremely interesting reading.

March 3, 2014

The Grapes of Wrath Symposium at UC Davis

The UC Davis Department of Theatre and Dance will host The Grapes of Wrath Symposium on Friday, March 7, to explore John Steinbeck's work directly as well as the larger social, cultural and historical issues it raises, while celebrating this 75th anniversary year since the publication of the epic novel.

The symposium, open to the public and free-of-charge, will be held in Lab A at Wright Hall from 10:30 a.m. to 5:45 p.m.

Participating UC Davis scholars include Sasha Abramsky, author of "The American Way of Poverty: How the Other Half Still Lives" (one of the New York Times 100 Most Notable Books of 2013), who is a freelance journalist and part-time lecturer in the University Writing Program and research affiliate with the Center for Poverty Research.

Abramsky discusses contemporary poverty and the new Dust Bowl of Texas and New Mexico, the dislocation that water shortage causes, and how policies post-1930s have limited agricultural calamity. Marianne Page, professor of economics and deputy director of the Center for Poverty Research, joins Abramsky to discuss how poverty policies deal (or don't) with issues specific to rural areas.

Professor Eric Rauchway, history department, is discussing the Great Depression as a background context. Matthew Stratton, assistant professor of English, will be talking about changes between the play and the novel, and W. Scott McLean, lecturer in comparative literature, examines how some of Steinbeck's issues influenced later song writers.

Professors Philip Martin, chair, UC Comparative Immigration and Integration Program, and Lisa Pruitt (School of Law) will discuss rural poverty in Oklahoma/Dust Bowl and in the Central Valley, then and now, including efforts to prevent indigents from entering the state in the 1930s. They will also touch on the similar (and different) stresses of rural poverty in the 21st century.  Kathy Olmsted, professor of history, talks about labor politics in the 1930s in relation to Steinbeck.

The symposium, open to the public and free-of-charge, will be held in Lab A at Wright Hall from 10:30 a.m. to 5:45 p.m. A complete agenda is available at

What: The Grapes of Wrath Symposium featuring UC Davis scholars explores Steinbeck's work directly as well as the larger social, cultural and historical issues it raises.
Where: Lab A, Wright Hall, UC Davis
When:  Friday, March 7, 10:30 a.m.-12 noon.; 1:30 p.m.-5:45 p.m.
Unticketed, free-of-charge

February 28, 2014

Consistency in the Treatment of Religious Liberty Claims: Hobby Lobby and Town of Greece Viewed Side by Side

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

In the space below, we offer some unconventional thoughts about the highly-anticipated Sebelius v. Hobby Lobby Stores, Inc. cases that will be argued in the Supreme Court next month, and that involve challenges under the federal Religious Freedom Restoration Act (RFRA) to the Affordable Care Act's requirement that employers must provide contraceptive services in their healthcare policies offered to employees. In particular, we try to lay the Hobby Lobby disputes alongside the other big case this Term that raises religious liberty issues, Town of Greece v. Galloway. That case was argued last Fall but hasn't yet been decided, and involves the permissibility of state-sponsored prayers before town board meetings. (Town of Greece involves important religious equality issues, as well as religious liberty concerns, but we limit our discussion in this column to plaintiffs' religious liberty claims.) By comparing the two settings and the way advocates in each of them have framed their religious liberty arguments, we hope to identify more common ground than has previously been acknowledged in these religious skirmishes at the Court. At the same time, we try to convince readers and other commentators that with regard to certain issues, in all fairness their approaches to the two disputes should be more consistent. (One of us has previously expressed this perspective in other fora.)

The "Liberal" and "Conservative" Take on the Two Lawsuits

Although few analysts have been looking at the two lawsuits together, the two cases have much in common. Neither dispute is particularly easy to resolve, in part, we believe, because both controversies raise serious religious liberty issues. As a matter of law and social reality, the plaintiffs in both lawsuits assert serious religious liberty claims that deserve our attention, empathy, and respect. Indeed, we think that important parallels between the two settings suggest that some of the main arguments raised against the religious liberty claims in each case would apply with roughly equal force in the other case as well.

We start by noting that the gist of the commentary among church-state scholars, including many colleagues we greatly admire and respect, seems sharply split and polarized on these cases. Generally speaking (and obviously there are exceptions to our claim here), liberal commentators see a significant religious liberty issue in Town of Greece, but are dubious about, if not dismissive of, the plaintiffs' claims in the Hobby Lobby set of cases. Conversely, conservative commentators tend to see a significant religious liberty issue in Hobby Lobby, but are dubious about, if not dismissive of, the plaintiffs' claims in Town of Greece. Perhaps we are wrong to see parallels between these two cases, but we worry that political and cultural polarization is making it harder for everyone to appreciate the similarly legitimate concerns of claimants who, from one perspective or the other, are on the wrong side of the culture-war dividing line. And the protection of religious liberty is itself undermined if we choose to protect it only when nothing that we value personally is at stake.

Liberals (again, as a general matter) place special value on gender equity, and see universal access to medical contraceptives as an important public health and women's rights concern. For them, protecting religious liberty in a situation that creates even small risks to women's health and equality is a hard sell. Conservatives, by contrast, attach important value to government-sponsored religious activities, such as state-sponsored prayers during public events. If protecting religious liberty requires placing some limits on such religious activities, conservatives will experience the price of religious freedom in this context as being particularly costly.

But (and this is really our big suggestion) if we expect other people to bear what they experience as real and significant costs in order to protect religious liberty, then we have to be prepared to demonstrate that we are willing to accept costs to interests that we ourselves value as well. In Town of Greece, liberals seem willing to protect religious liberty when something they do not value, public prayer, may be burdened, but are disinclined to protect religious liberty in Hobby Lobby. And conservatives are willing to protect the religious liberty of Hobby Lobby, but assign little, if any, weight to the religious liberty interests of the Town of Greece claimants.

The Dismissive Attitude of Opponents to the Religious Claimants in Each Case 

Indeed, in each case opponents of the plaintiffs/religious claimants seem incredulous, wondering what the religious adherent can possibly be complaining about. In Hobby Lobby, the suggestion seems to be that there is no reason to think that the plaintiffs' rights are burdened there at all. If a large corporation is engaged in commerce, it is subject to hundreds of regulations regarding working conditions, hiring, salaries, health plans and retirement plans. The benefit plans it provides to its employees may cover thousands of health and retirement topics. Being in commerce and employing hundreds or thousands of people means that a lot of things out of your control are going to happen. That is the way the world is, and how it has to be. In Town of Greece, the argument is made against the claimant there that town board meetings necessarily involve exposure to a lot of disagreeable expression from both board members and the public. If you attend such a meeting, you will have to sit through a lot of speech that you find objectionable. That's the way the system works. Learn to live with it.

But when we ask "What can they possibly be complaining about?" in religion cases, we must remember that a meaningful commitment to religious liberty means that burdens relating to religion must be treated specially; they must be evaluated differently than other costs or consequences. A business regulation requiring a business to engage in conduct that the owner or manager's religion prohibits requires a different analysis than the analysis that would apply to other regulatory burdens that owners and managers dislike. Similarly, having to sit through a state-sponsored prayer is different than having to sit through a politically- or ideologically- annoying discussion of fiscal or other policy issues. What is key here is that if religious liberty claims deserve attention in either of these contexts, regardless of the way things generally work, then religious liberty claims deserve respect in both situations.

The Inconsistency in the Treatment of Risk-Based Arguments

Consider some more focused and sophisticated arguments against the plaintiffs in each case. Some liberal commentators argue that an employer objecting on religious grounds to insurance coverage requirements under the Affordable Care Act may simply decline to continue to offer a health insurance plan to its employees. To be sure, the employer will have to pay a penalty for doing so, but that payment will probably be far less than the savings it incurs by ending employee health care benefits. It may be that there are other costs (say, in recruiting and retaining employees) associated with discontinuing employee health insurance coverage, but it is unclear whether, and in what circumstances, those costs would constitute a substantial economic burden on businesses declining to offer health plans to their employees. Because the economic consequences of declining to offer health plans is indeterminate, and may in fact be modest or negligible, courts should not consider claimants like Hobby Lobby to be subject to a substantial burden on their religious liberty.

It is easy to understand, however, why an employer would legitimately worry that terminating the existing health plans it offers its employees might have significant negative consequences on its bottom line. Most employees would not look kindly on having their existing health plans terminated and being told to purchase insurance through exchanges developed under the Affordable Care Act. So rejecting the notion that employers are burdened here would in effect reject the idea that a risk of adverse consequences constitutes a cognizable burden on religious liberty. No one knows for sure what will happen if the employer protects its religious liberty interests by terminating the health care plans for its employees, but the risk and reason for concern are there. The employer's worry can hardly be characterized as mere speculation.

Conservatives see that in Hobby Lobby, but seem to ignore similar concerns raised by the claimants in Town of Greece. Plaintiffs there also identify a significant risk-based burden on their religious liberty: They worry that the town board members whom they will be petitioning for support or assistance when the business part of the town board meeting is conducted will be alienated by the claimants' refusal to stand, bow their heads, or otherwise participate in the state-sponsored prayers that open the board meeting. Of course, no one knows whether or not board members will be alienated by or annoyed at audience members who choose not to participate in the prayer, or whether or not those board members will allow their feelings about claimants' not participating in the offered prayer, or publicly disassociating themselves from it, to influence the way the board members hear and decide the matters on which the claimants offer public comment. But here again, the risk and reasons for concern are present.

We believe that a significant risk of adverse consequences, that is, a reasonable ground for worrying about adverse consequences, should be understood to impose a legally-cognizable burden on protected interests. Certainly, the chilling effect arising from the risk of being exposed to penalties from overbroad laws is recognized as constitutionally-significant for freedom of speech purposes. But in Hobby Lobby, liberals seem unwilling to accept that indeterminate burdens on the religious liberty of employers deserve recognition, and in Town of Greece, conservatives seem unwilling to accept that indeterminate burdens on the religious liberty of individual non-adherents should be recognized, and steps taken to alleviate them. We think that the question of whether the risk of adverse consequences should be recognized as substantial burdens on religious liberty should be answered the same way in both cases.

Inconsistency in the Treatment of Attenuation and Misattribution Arguments

A separate criticism of plaintiffs' claims in the two cases focuses on arguments about attenuation, perception and attribution. In cases like Hobby Lobby (and perhaps more so in the related cases brought by religious non-profits), claimants are concerned that they will be complicit in sinful behavior. In addition, religious nonprofits in particular are concerned that they will be misperceived as supporting or acquiescing in sinful behavior, or that support for such behavior may be attributed to them. These concerns transcend material subsidy and emphasize the expressive dimension of being associated with unacceptable conduct. These concerns for us bring to mind the Catholic idea of "scandal." Liberals dismiss such claims based on complicity as being too attenuated. Concerns about misattribution are also deemed insignificant since they can be so easily remedied by the religious nonprofit's publicly distancing itself from religiously objectional behavior by proclaiming its opposition to the conduct at issue.

A similar problem with misperception-indeed, we suggest an arguably more powerful example of it- also arises in the Town of Greece litigation. Commonly, the prayer giver at the Town of Greece board meetings offered what may be called a "we" prayer rather than an "I" prayer. The member of the clergy who is offering the prayer purports to be speaking to G-d in the name of the whole audience and the community. Sitting silently by, and certainly standing or bowing one's head, while someone claims to be praying in your name creates the perception that you acquiesce or support his doing so. We consider this to be just as clear a misperception burden as the concern of religious individuals and institutions that they will be perceived as supporting the use of medical contraceptives or abortion-inducing pills when such services are covered by the health care plans they provide to their employees. Accordingly, in our judgment, if either misperception argument deserves to be taken seriously, then the misperception arguments in both cases deserve to be taken seriously.

Yet here, again, liberal commentators who sympathize with the misperception concerns of claimants in Town of Greece seem less concerned with the misperception concerns of claimants in the contraceptive mandate cases. The problem is even more acute for conservatives who recognize misperception and misattribution as a problem in the contraceptive mandate cases, but seem unconcerned about the claimants in Town of Greece. In the contraceptive- mandate cases, there is no risk of a penalty or adverse consequence if employers very publicly condemn the mandate and express their lack of support for the use of medical contraceptives. Misattribution can be somewhat mitigated by their public rejection of the government's requirements. In Town of Greece, however, by publicly disassociating themselves from the state-sponsored prayers (either prior to, or in the wake of, the board meeting) dissenters risk alienating the very decisionmakers on the board to whom they are directing their petitions. The risk of adverse consequences is thus increased by their attempts to avoid misperception and misattribution.

We recognize, of course, that Town of Greece is a constitutional law case and that the contraceptive mandate litigation involves statutes and public policy for the most part. Thus, one might plausibly argue that town-board prayers are constitutional, while also believing that, as a public policy matter, they are a bad idea, or at least should be carefully structured in ways to minimize their coercive impact. But we don't hear conservatives making this argument; they seem to ignore the burden on religious liberty both for constitutional and policy purposes.

There may be other powerful arguments that could be mustered to support our suggestion that people who take religious liberty seriously should be respectful of plaintiffs' claims in both Town of Greece and Hobby Lobby and related contraceptive-mandate cases (and, conversely, that people who reject religious liberty should do so in both cases). But our key point is that we have to work hard at not seeing religious liberty issues through the red and blue prism of contemporary culture wars. Most importantly, we should be careful not to allow our sympathies for interests that are aligned against particular claims for religious liberty to prevent us from acknowledging and empathizing with plaintiffs whose concerns warrant our respect. Recognizing the reality of the religious liberty concerns asserted by claimants in Town of Greece and Hobby Lobby (and related cases) does not mean that we must agree with the remedy sought in either case. But it does reflect a willingness to take such claims seriously, even when we are uncomfortable in doing so.

February 26, 2014

Inaugural "Psychology and Lawyering: Coalescing the Field" Conference

I was thrilled to have been part of the "first inaugural" Psychology and Lawyering: Coalescing the Field conference in Las Vegas. This two-day event was co-sponsored by the University of Nevada-Las Vegas, University of Illinois College of Law, and UC Davis School of Law. Over 100 lawyers, law scholars, judges and psychologists attended the energizing presentations. Unlike other law and psychology conferences, this one focused on how to use psychology to improve all aspects of lawyering - from managing juror expectations about the emotions of child witnesses (which featured research from the laboratory of Dr. Gail Goodman from UC Davis Psychology) to how to teach emotional intelligence concepts to law students so that they can increase client satisfaction.

We hosted the keynote address and reception, which featured a thought-provoking talk by Tom Tyler from Yale Law School. He discussed his compelling research on how perceptions of procedural justice shape the perceived legitimacy of the legal system. He persuasively argued that punitive sanctions for disobeying the law have less influence on people's willingness to abide by the law compared to measures that are geared towards making the legal system more subjectively appealing to its constituents.  This "better" approach - supported by significant psychological research - entails shaping the legal system so that people regard it as a procedurally fair one. Many studies link legitimacy to the exercise of authority through legal procedures that laypeople subjectively view as fair. When people perceive the system as fair, even if the outcomes of legal proceedings do not go their way, or they come across rules now and again that they do not favor, they are more apt to respect the legal system enough to willingly comply with the law.  Insofar as public order flows from a shared commitment to the law and the legitimacy of legal authorities, society is better off with such voluntary compliance. But creating legitimate systems is no easy task. And it requires understanding how everyday people make fairness judgments - something that fits squarely within the purview of psychological research.  By reminding us of this, Tom Tyler's inspiring words set the tone for the future work of this new group and those who will join it in the future.

During one of the "working lunches," we gathered in small groups to brainstorm future projects that could better marry psychology and lawyering.  We left with eager volunteers who would moderate the new listserv on the topic of psychology and lawyering, and others still who would host the next several conferences (get ready for SUNY Buffalo Law School in 2015!).   If you would like to learn more, feel free to join us on the listserv:

Thanks to Jean Sternlight (UNLV) for coming up with the idea for this fine event and making it a reality.  And special thanks to Dean Kevin R. Johnson and the Dean's Office for so generously supporting this innovative bridge between academic research and the practice of law.