Latest Scholarship

March 26, 2015

Live Blog from UNAM International Immigration Conference


Our UC Davis Delegation: Cruz Reynoso, Beth Greenwood, Leticia Saucedo, and me

I am blogging live today from an immigration conference at UNAM in Mexico City. Visit Immigration Prof Blog for the latest entries!

March 25, 2015

International Immigration Conference in Mexico City

UC Davis School of Law, the National Autonomous University of Mexico (UNAM), and the Monterrey Institute of Technology are co-sponsoring an international conference on immigration at UNAM in Mexico City on March 26.

I am joining immigration experts Professors Leticia Saucedo and Cruz Reynoso from UC Davis to participate in a conference with colleagues from Mexico's top universities to explore the history of immigration policy and law, the present context of immigration in labor and the environment, and the human impact of immigration on families, their daily lives, and their human rights. The program will also examine the future of immigration law and policy as it impacts both the United States and Mexico.

Here is the schedule for the conference.  The Deans of the sponsor law schools (Dra. Maria Castaneda Rivas (UNAM), Kevin Johnson (UC Davis), and Gabriel Cavazos (Monterrey Tech)) will welcome the participants.

Panel 1 is entitled "Overview, History, and Culture of Immigration."  Panelists included Professors Nicolás Foucras (Monterrey Tech) and Gabriela de la Paz (Monterrey Tech).  I am also on the panel and my presentation will focus on the history of immigration law and enforcement in the United States.

Panel 2 ("Undocumented Immigrants in the US:  Impact, Challenges and Enforcement") includes Professors Leticia Saucedo (UC Davis), Cruz Reynoso (UC Davis), and Gregory Hicks (University of Washington).

Panel 3 ("Impact on Individuals") includes Professors Mariana Gabarrot (Monterrey Tech), Dean María Leoba Castaneda Rivas (UNAM), and Leticia Saucedo  (UC Davis).

Panel 4 ("Long Term Immigration Policy") includes Gerry Andrianopoulos (Monterrey Tech) and Victor Hugo Perez Hernandez (UNAM). I will discuss possible reforms to U.S. immigration law and policy.

The conference follows an "Immigration Dialogue" for law deans from the Pacific Rim hosted by UC Davis School of Law in October 2014. The conference provided an opportunity for legal experts to explore challenging issues related to immigration as it impacts both countries.

Beth Greenwood, Executive Director International Programs and the LL.M. program (UC Davis), and Concha Romero were instrumental in organizing the conference.

March 16, 2015

Breaking News: California Grants Law License to Hong Yen Chang

Today, the California Supreme Court today issued its opinion in In Re Hong Yen Chang. The first line says it all: "We grant Hong Yen Chang posthumous admission as an attorney and counselor at law in all courts of the state of California." (emphasis added).

More than a century ago, Chang was denied the opportunity to practice law in California because of his race.  Professor Jack Chin, a leading civil rights law professor, has been working on the case with the Asian Pacific American Law Students Association students and the law firm of Munger Tolles & Olson LLP.

Congratulations to all involved in this important effort to right a historic wrong. Congratulations, too, to the family of Hong Yen Chang, many of whom are lawyers right here in California.

See coverage of today's developments from major news outlets including Reuters, Los Angeles Times, San Francisco Chronicle, and the Associated Press, among others.

March 13, 2015

Reflections on the Oral Argument in the Arizona Independent Redistricting Commission Case

Cross-posted from Justia's Verdict.

The U.S. Supreme Court last week heard oral arguments in an important case involving federalism and election regulation, Arizona Legislature v. Arizona Independent Redistricting Commission. As I have explained in a two-part series of columns (beginning with this one), Arizona is one of only two states (California being the other) where voters—responding to state legislatures’ tendency to engage in problematic gerrymandering—passed an initiative giving the job of drawing congressional districts to an independent redistricting commission (IRC) instead of the regular state legislature. The elected Arizona legislature brought a lawsuit and appealed the lower court ruling to the Court, arguing that the so-called Elections Clause, Article I, section 4 of the federal Constitution, which gives power to undertake districting in the first instance to the “legislature” of each state, prevents the people of a state from divesting the elected state legislature of district-drawing power.

One Generally (and Recurringly) Surprising Aspect: Federalism Inversion

Many aspects of the oral argument weren’t shocking. I continue to believe, for reasons I explained in the earlier column, that the challenge to the IRC is flawed, but many analysts anticipated that the more conservative Justices would be sympathetic to the arguments made by the elected legislature, which is being represented by former Bush Administration Solicitor General Paul Clement, and these Justices did seem to be. On the other hand, some liberal Justices generally seemed more receptive to the arguments in favor of the IRC, made by its lawyer, former Clinton Administration Solicitor General Seth Waxman. Though expected by Court watchers, this coalitional breakdown is itself surprising in at least one historical respect: the liberal Justices seem more inclined to favor “states’ rights” by giving states latitude to experiment with different modes of district drawing, while the conservative Justices seem disinclined to permit states free reign. In the 1980s and 1990s, conservative Justices were the ones who generally thought the federal Constitution allowed for broad state experimentation, and the liberals thought that states did not have as much running room. But beginning with Bush v. Gore, it is now hard to know how the conservative/liberal framework (which is, of course, overly simple but nonetheless somewhat useful) maps onto federalism matters. We see the same potential complexity in the pending Obamacare case, King v. Burwell, where liberal rather than conservative Justices will likely construe the Affordable Care Act (Obamacare) in a particular way so as to avoid imposing costs on states that might not have been fully aware of the potential consequences of their decisions not to set up their own healthcare exchanges.

A Surprising Inattention to Standing

In a few other respects, though, the oral argument in the Arizona case was surprising by any standard. For one thing, the Court included in the grant of review a question of whether the elected legislature had standing to sue (and the matter was briefed), yet the Justices asked no questions of Mr. Clement about whether his client did enjoy standing. There were some standing questions asked of the lawyer representing the United States (which supported the IRC as an amicus in the case) when he said he thought the elected legislature lacked standing, but one would think that if there is a question raised in a case about the plaintiff’s standing, the Justices would ask the lawyer representing the plaintiff to explain why the Court can hear the case. The burden to establish standing is on the party seeking to invoke federal judicial power, and yet the Justices gave Mr. Clement a pass on this in oral argument, even though the standing question is far from easy. (For an explanation of why the standing question is a complex one, readers may want to consult an earlier Verdict column focusing on that question).

And when they did engage in the standing analysis at all, the Justices seemed not to know what they themselves had said in past standing cases, including a particularly relevant one. Justice Kennedy, in questioning the lawyer for the federal government, intimated that the Court’s cases do not say that just because another plaintiff might be a better candidate to bring a lawsuit, the Court should deny standing to the party actually in front of it. And the federal government’s lawyer acknowledged that the Court often says close to the opposite—that the “even if [the Court’s rejection of standing in a given case] would mean no one would have standing to sue, that’s not a reason to find standing.” But what both of them seemed to forget is that in the standing case most germane to the Arizona legislature’s dispute, Raines v. Byrd—where the Court denied standing to members of Congress in a case challenging the Line Item Veto Act—the majority did suggest that whether another party might be a better candidate for standing was a factor that might cut against standing for the members of Congress. As Chief Justice Rehnquist’s opinion put it: “We also note that our conclusion . . . [that Congresspersons lack standing does not] foreclose[] the Act from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act). Whether the case would be different if . . . [this] circumstance[] were different we need not now decide.” The clear implication of that last sentence is that the existence of a “better” candidate for standing may very well affect whether the Court is willing to stretch standing doctrine for the sake of the plaintiff actually before the Court.

A Surprisingly (and Problematically) Narrow View of Past Cases and U.S. History

This isn’t the only passage from previous cases that the Justices seemed to have forgotten they said. Justices Kennedy and Scalia repeatedly pressed Mr. Waxman for any instances elsewhere in the Constitution in which the Court had indicated that the word “legislature” was not necessarily a limited reference to the elected representative legislature, but could include the people themselves—the lawmaking authority. While Mr. Waxman had no clear answer, one thing he could have said is that Justice Scalia himself has intimated that “legislature” might in some constitutional contexts be read to include the people. In Salazar v. Colorado, in 2003, a case involving whether Colorado could involve state courts in discharging the power that Article II of the Constitution gives to “the legislature” of each state to prescribe the manner in which presidential electors shall be selected, Justice Scalia (along with Justice Thomas) joined an opinion, dissenting from a denial of certiorari, which said: “Conspicuously absent from the Colorado lawmaking regime, under the Supreme Court of Colorado’s construction of the Colorado Constitution to include state-court orders as part of the lawmaking, is participation in the process by a body representing the people, or the people themselves in a referendum” (emphasis added).

The Justices seemed somewhat forgetful not just of past statements in cases, but also of American history, in particular, the path by which U.S. senators came to be directly elected by the people. The text of the original Constitution (prior to the Seventeenth Amendment in 1913) provided that senators should be picked by the “legislature” of each state. Justice Kennedy, trying to draw a sharp distinction between the “legislature” and the people of the state based on this textual feature of the 1787 document, observed at argument that “until 1913, for close to a hundred years, many States wanted to have direct election of the senators . . . and not one State, not one State, displaced the legislature. It took the Seventeenth Amendment to do that. . . It seems to me that [for this reason] history works against the IRC.”

With all due respect, Justice Kennedy’s historical account here is extremely and problematically simplistic, in that many states did effectively, to use his term, “displace[] the legislature” in picking U.S. senators. Beginning in the mid-1800s, state-level political parties and organizations sought ways to involve the people more directly in selecting senators, and were devising increasingly effective ways to limit state legislators’ discretion in their choice of federal senators. What evolved into the most sophisticated approach, the so-called “Oregon Plan” (or Scheme), began simply as an opportunity for state legislative candidates to formally pledge to follow the will of the voters, as expressed through an advisory popular election, when it came time to pick the next federal senator. The pledges were considered merely moral at first. But as other states began to follow Oregon’s lead, more creative and more coercive devices were employed. Nebraska, for example, pioneered a “scarlet letter” approach, in which elected legislators who broke the pledge they took as state legislative candidates were burdened with a ballot notation to that effect in the event they sought state legislative reelection. Other states followed suit, crafting variations on the Oregon and Nebraska devices to suit their local needs. Oregon voters ultimately adopted a state constitutional amendment that, as a matter of state law, legally bound state legislators to select the U.S. Senate candidates who were most popular among state voters. By 1912, when the U.S. Senate approved the Seventeenth Amendment, nearly sixty percent of the senators were already selected by some means of direct election (and thus had nothing to fear from it). For this reason, it seems likely that even without ratification of the Seventeenth Amendment, direct election would in fact be with us today in most, if not all, states. In reality then, the Seventeenth Amendment was a formalizing final step in an evolutionary process.

Of course, the Oregon state constitutional provision binding state legislators, the Nebraska scarlet letter devices, and the somewhat similar measures from other states were never litigated in the U.S. Supreme Court or in lower courts. Yet that fact may itself be telling. Does Justice Kennedy think that these devices were in fact unconstitutional because they improperly deprived the elected legislatures of power Article I gave to them? If so, would Justice Kennedy be prepared to call into question the legitimacy of the senators elected from all the states that employed such devices for over a decade? And the actions taken by these Senates? And if not, doesn’t this historical episode support the Arizona electorate and its desire to experiment via the IRC?

In deciding what the word “legislature” in the Constitution means, in Article I and elsewhere—and whether that term can be read to include the people themselves—the Court should, at a minimum, be more careful and sophisticated in taking account of what the Court or various of its Justices have said, and what the full historical record of American democracy reveals.

March 13, 2015

California Supreme Court to Rule on Bar Admission of Hong Yen Chang

Cross-posted from Immigration Prof Blog.

Last spring, ImmigrationProf reported on the efforts of UC Davis law students to seek the posthumous admission of Hong Yen Chang to the California State Bar. More than a century ago,  Chang was denied the opportunity to practice law in California because of his race.

Students in the UC Davis School of Law Asian Pacific American Law Students Association (APALSA) asked the California Supreme Court to admit Hong Yen Chang to the bar. Professor Jack Chin, a leading civil rights law professor, has been working on the case with the APALSA students and the law firm of Munger Tolles & Olson LLP.

The California Supreme Court announced today that it would file an opinion in the case next Monday.  Stay tuned!

March 13, 2015

"Future of CEQA" Symposium Receives Coverage in Sacramento Bee

Our Environmental Law Society's symposium on the future of CEQA received a nod from the Sacramento Bee today:

Among the most intractable debates of California politics is what to do about the California Environmental Quality Act, or CEQA, the 1970 law regulating the environmental impacts of development projects. Defenders hold it up as a crucial protection, while business interests and local governments are exacerbated by what they see as overly burdensome requirements and abuses of the process to block construction. Political forces as large as Gov. Jerry Brown have been unable to maneuver a comprehensive overhaul of the law.

A day-long symposium hosted by the Environmental Law Society at UC Davis School of Law will explore the challenges and the future of CEQA. Kip Lipper, the Senate president pro tem's chief policy adviser on energy and the environment, kicks things off with a discussion of recent legislative developments. Sessions follow on nontraditional uses of CEQA, the implications of adding consultations with Native American tribes to the law, and how CEQA factors into the development of California's high-speed rail project and efforts to address climate change.

Representatives from the California Air Resources Board, the Governor's Office of Planning and Research, and the Department of Water Resources are scheduled to participate in the symposium, which begins at 9 a.m. at the UC Davis School of Law.

March 5, 2015

Opinion analysis: Court adopts broad standards for adjudicating what constitutes a tax discrimination under the 4-R Act

By Professor Darien Shanske. Cross-posted from SCOTUSblog.

Neither side came away with a clear victory in the Court's decision in Alabama Department of Revenue v. CSX Transportation, Inc., as the Court remanded the case to the Eleventh Circuit. Again. The clear loser in the case is the Eleventh Circuit, which has been given the specific task that the court of appeals had already eschewed as "Sisyphean." Justice Scalia wrote the majority decision. Justice Thomas wrote the dissent, with Justice Ginsburg signing on. This is the second time that Justices Thomas and Ginsburg dissented on the same issue in the same case.

The issue in the case was interpretation of Section 11501(b)(4) of the [4-R] Act, which prohibits a state from "impos[ing] another tax that discriminates against a rail carrier." Alabama imposes a general sales tax, which includes tax on the sale of diesel fuel to railroads, but motor and water carriers (i.e., trucks and boats) are exempt from paying this tax on their fuel.   The Court held that the appropriate comparison class for assessing discrimination under the Act can vary depending on the alleged discrimination. In this case, the Court found that CSX properly alleged that motor and water carriers, as competitors to railroads, were a proper comparison class.

The Court also held that "discrimination" in the statute requires some analysis of a state's overall tax system. It is not enough, as CSX argued, to look to the burden imposed by one tax in isolation when there could be another tax that demonstrates that there is, in fact, not an unlawful discrimination.   It is true that only the railroads pay the sales tax on their fuel, but Alabama countered that this did not amount to discrimination because motor carriers, but not railroads, had to pay an excise tax on diesel fuel. The Eleventh Circuit refused to consider this argument, but it will have to consider it on remand as the Supreme Court has now held that the statute requires an assessment whether there is a "roughly equivalent" tax that offsets an apparently discriminatory tax.

As for the issue of comparison class, oral argument already strongly indicated that a majority of the Justices were not going to accept the limitation on what can constitute the class that was proposed by the state and that had been proposed by Justices Thomas and Ginsburg in dissent the last time this case was before the Court. The anti-discrimination provision at issue is in subsection (b)(4), which does not explicitly state what the proper comparison class would be. However, subsections (b)(1)-(3) of the same provision do explicitly indicate such a class, namely "commercial and industrial" property. The majority found that this limitation does not carry over from the first three subsections to the last, primarily because the earlier subsections were specifically about the property tax and the final residual provision is not so limited.

Once the Court found that this limitation did not restrict subsection (b)(4), the question becomes just what does constitute a comparison class. Here the Court provided only broad guidance. On the one hand, the analysis as to what constitutes a comparison class cannot be the same as would be performed in connection with the Equal Protection Clause. This is because, as to economic matters, the Equal Protection Clause permits very fine distinctions. As the Court explained, importing this analysis into the analysis of the 4-R Act "would deprive subsection (b)(4) of all real-world effect, providing protection that the Equal Protection Clause already provides."  The right analysis as to proper comparison class must take into account the purpose of the 4-R Act, and here the opinion cites the statute: to "restore the financial stability of the railway system of the United States, [while] foster[ing] competition among all carriers by railroad and other modes of transportation." Given this purpose, the Court agrees that competitors, such as motor carriers, can be an appropriate comparison class. As for other possible comparison classes, the Court put that question to the side, exclaiming that "[s]ufficient unto the day is the evil thereof."

As to how to do the discrimination analysis, the Court explained that "it does not accord with ordinary English usage to say that a tax discriminates against a rail carrier if a rival who is exempt from that tax must pay another comparable tax from which the rail carrier is exempt." In other words, how can there be an unlawful discrimination if in reality the railroads were no worse off than their competitors? The Court therefore "could not approve" the Eleventh Circuit's refusal to consider Alabama's argument that its fuel excise tax is the "rough equivalent" of its sales tax on diesel fuels. Though the Court was "inclined to agree" that this is not the kind of analysis that courts are likely to do well, it is nevertheless the duty of courts to try because that is the task Congress assigned them "by drafting an antidiscrimination command in such sweeping terms."

Both as to the question of comparison class and as to the question of the scope of analysis, the Court's opinion adopted an interpretation of the statute that requires courts to apply broad standards. Justice Thomas in dissent does more than just argue for his reading of the statute; he also needles the majority about reaching a "predictably unworkable" result.

A concluding observation. The dormant Commerce Clause also forbids discrimination in taxation, and thus the Court has already analyzed what constitutes discrimination in taxation at some length. And, in the dormant Commerce Clause cases, as noted very briefly in the opinion in this case, the Court has long accepted the possibility that states can defend themselves from a charge of discriminatory taxation by showing that there is some other compensating tax. By referring back to an early (1932) dormant Commerce Clause case, the majority opinion appears to accept that this piece of conceptual analysis is sound. Yet a lot has happened since 1932. In particular, the Court developed the so-called complementary tax doctrine, complete with its own three-part test, which has been applied fairly recently . The doctrine was also discussed in the briefs, including that of the United States, which appeared as an amicus in support of neither party. This is especially significant because the Court largely followed the disposition of this case proposed by the United States in its brief and at oral argument.

What does it mean that the complementary tax doctrine made no appearance in the majority opinion? Rather than reference the doctrine, the majority used a form of the phrase "rough equivalent" twice, along with "roughly comparable," to describe what the Eleventh Circuit must assess. Is this standard stricter or looser than the complementary tax doctrine? Is this doctrine not mentioned because the Court finds it unsatisfactory or only applicable to dormant Commerce Clause cases? The opinion does not answer these questions, but perhaps we will find out what the Court thinks if - when? - this case returns to the Court for a third time.

March 2, 2015

How Prospective Law Students Can Make Better Use of the U.S. News Law School Rankings That Are About to Be Released

Co-authored with Dean Kevin R. Johnson. Cross-posted from Justia's Verdict.

Over the next month or two, tens of thousands of admitted applicants will make decisions about which law schools to attend. One tool that many will no doubt use to guide their decisions is the annual U.S. News & World Report rankings, which will be released in a little over a week. Many analysts criticize the methodology (or various aspects of it) that U.S. News employs to rate law schools (and some folks doubt whether all the nation's law schools could ever be meaningfully graded according to any single set of criteria.) But, for the time being at least, U.S. News remains the most looked-at, and seemingly influential, ranking system out there. For that reason, in the space below we offer-based on our collective experience in both evaluating other law schools and having our own law school evaluated-five pieces of advice for making the most sophisticated use of the rankings that U.S. News is poised to unveil.

#1: The Importance of Trends: Remember That Each Year's Rankings Capture a Snapshot in Time

The rankings that are set for release on March 10 present a great deal of raw and processed information, but they data they contain-and the bottom-line rankings they assign-represent only a snapshot in time. Any sensible consumer of the rankings should look not just at one year's result, but at a longer track record, perhaps attaching more weight to a five-year average rather than to any single year's numbers.

To be sure, sometimes there is, as to a particular law school or type of law school, a clear trend line-in particular components within the ranking or as to the bottom-line performance - and it may be important to try to discern what accounts for any such consistent assent or decline. More commonly, a school may bounce around somewhat because of short-term factors, such as a bad year in passing the bar and/or placing graduates in jobs, or an anomalous drop in application volume or quality due to some administrative gaffe or regional downturn. Such volatility is itself a basis on which the U.S. News rankings are often criticized-how much could a school's overall quality really change within the space of a year?-but taking a somewhat longer view may partially address that criticism and make the bottom-line ratings more meaningful.

In looking at changes over time, it is important to realize that certain parts of the U.S. News evaluations very rarely move much from year to year. This would include a school's reputation rank among other law professors who are surveyed (which accounts for 25% of a school's overall ranking) and its reputation rank among lawyers and judges who are polled (which accounts for 15% of the overall result). The relative quality (compared to other schools) of a school's student body-as judged by median LSAT scores, college GPAs, and the school's acceptance rate-also has tended, as an historical matter, not to change tremendously in a single year (but rather evolves much more gradually), but this factor has itself become a bit more volatile in recent years as the national decline in application volume has hit some schools harder than others. Other factors, such as the percentage of graduates who are placed in law-related jobs at or nine or ten months after graduation, bar pass rates, and dollars-per-student spent by a school (more on that later), have tended to fluctuate much more, and thus may account more for the year-to-year changes in bottom-line rankings.

One might argue that the parts of the U.S. News survey that are more stable are more reliable and thus should be taken more seriously than the overall rankings. There is something to that, but even these stable components have been open to significant criticism. The response rate by lawyers and judges who are polled has often been quite low, and the integer-based scale (ranging from 1 to 5) on which law professors, lawyers and judges are asked to place schools is not sufficiently finely grained for people to draw the kind of nuanced distinctions that the U.S. News rankings purport to depict overall. Moreover, it may be that larger law schools, with more graduates, may have an easier time making a positive impression on judges and lawyers, simply because members of the bench and bar may be more likely to encounter recent alums of schools that pump out more graduates. (There are other, smaller aspects of the U.S. News methodology-such as student-faculty ratios-that might tend to inadequately reward economies of scale and thus favor small schools.)

#2 The U.S. News Data Is Necessarily Limited in Scope

In addition to being limited in time, the data that U.S. News employs and presents every year is limited in scope. Among the data that it ignores is how diverse a law school's faculty or student body is. We have argued (in an earlier series of online columns) that this information concerning racial/ethnic (and perhaps other kinds) of diversity ought to be incorporated into the rankings. Most law school faculty and administrators around the country believe that diversity within a school is a helpful plus in a world where graduates are going to encounter and serve clients of various different backgrounds. Yet U.S. News has declined to include a diversity component in its overall scoring (although it separately presents raw data as to racial diversity). As we have explained before, the main reason U.S. News has offered for not including diversity-that some schools are located in places where diversity is harder to accomplish-simply doesn't wash. Some schools are located in places where there are fewer high-LSAT performers in the community, yet we still include median LSAT as a rankings input because we think a law school student body's LSAT performance is a relevant characteristic. If, as the Supreme Court has held and as most people in academia believe, a diverse school is pedagogically better than a less diverse school, all other things being equal, then we should develop a way to have diversity count for at least something when we evaluate and rate schools. In the meantime, prospective students can find helpful data on each school at the ABA "Standard 509" website.

#3. Distributions Within Each Law School Student Body

While we are talking about the makeup of the student body of each law school (which many prospective students would find an important factor since law students often learn from, and are judged by the outside world by, the company they keep), we should point out that the data that U.S. News weighs most heavily-median LSATs and GPAs-while relevant to an assessment of student-body academic strength, itself can mask important differences within each student body. Two law schools may have similar medians, but they may have very different LSAT scores and GPAs at the 75th and 25th percentiles within their student bodies. Let us compare, for example, using 2014 data, Northwestern and Cornell, both excellent law schools with undeniably strong student bodies. Northwestern's LSAT median was a 168, and its median college GPA was a 3.75. Cornell's were a bit lower on both-a 167 and a 3.68. But Cornell's 25th percentile LSAT and GPA were somewhat higher than Northwestern's (166/3.55 compared to 162/3.53). How could the school with higher medians have lower numbers at the 25th percentile? There could be a number of possible explanations. Northwestern may prefer applicants who have either a very high LSAT or a very high GPA (sometimes known as "splitters"), whereas Cornell may prefer people who were reasonably (but not quite as) high on both metrics. Perhaps Northwestern's 25th percentile LSAT is lower because it has enrolled more students who have been out of college for a longer period of time, in which case LSAT scores may be less important than real-world accomplishment. Or maybe some different reason altogether.

We are not suggesting here that having medians that diverge from a school's 25th percentile numbers is inherently problematic (although it might be problematic for law schools that, unlike Cornell and Northwestern, have many low LSAT performers and that may have low bar pass rates); instead, we are simply saying that when an applicant is looking at the student bodies of schools in which s/he is interested, it may make sense to look at more than medians. We note, in this regard, that the ABA "Standard 509 Report" website has a good tool that enables users to search and compare law schools along these axes.

We should add that if critics believe that U.S. News creates a perverse incentive for schools to admit "splitters" (perverse in the sense that pedagogical considerations would otherwise incline these schools to admit folks who present reasonably strong LSAT scores and GPAs instead), there might be ways to tweak the U.S. News student-quality formula, but any such changes could create other incentives or disincentives about which other observers might complain.

#4. Looking Behind the Employment Numbers

Two final observations warrant mention. First, one of the most volatile-and thus influential as to many schools' rankings in a given year-factors in U.S. News is the percentage of graduates who have a full-time, long-term, law-related job ten months after graduation. Certainly a school's ability to help place its graduates is an important factor in any decision about where to attend law school. But note, importantly, that the percentage employed in full-time, long-term, law-related jobs does not by itself convey any information about the particular type of jobs a school's graduates are getting. U.S. News does not present or make use of salary data (although it did decades ago); it does not break jobs down by geography; as of last year it did not even tell consumers how many jobs are funded by the graduate's law school or home university. We should add that some law school- or university-funded jobs are quite meaningful and reasonably paid, whereas others are less so. In any event, here too, the ABA provides much more finely grained data on job type and salary; applicants should consult the web page on which the ABA collects and presents the employment surveys for all ABA-approved schools.

#5. Follow (or at Least Examine) the Money

Finally, speaking of money, we should point out that there is one factor in U.S. News as to which the underlying data and the use to which U.S. News puts it are harder to see and thus harder to analyze, and that is the so-called "faculty resources" component that looks at "average fiscal expenditures per student for instruction, library and supporting services." This inscrutable factor accounts for about 10% of a school's overall score and often determines where a school lands within a bunched-up grouping. For example, if one looked at all the other major U.S. News components-peer academic assessment, lawyer/judges assessment, median LSATs/GPAs, acceptance rates, placement rates, bar pass rates, student-faculty ratio, etc.-Yale should be tied with, or even slightly behind Harvard. And yet Yale consistently beats Harvard for the top spot in the rankings by a non-trivial margin; last year it was four overall score points out of a possible 100. And this difference seems likely accounted for by the fact that Yale spends more-although precisely how much more is hard to know-per student than any other school by a significant margin.

Now four points out of 100 in the U.S. News overall score may not seem like a lot, but given how bunched up schools are, four points can be a big deal. (Yale's four-point lead over Harvard last year was four times larger than Harvard's lead over #3 Stanford, and four points farther down the scale was all that separated #29 from #42.) And Yale's perch atop U.S. News every single year for over two decades likely accounts for its qualitatively better yield among admitted applicants than that of any other law school, thus enabling Yale essentially to have first choice among the applicant pool. (Yale these days admits only around 250 people to get 200 to attend, generating a yield of about 80%, compared to Harvard's yield of about 60%, which itself is much higher than the yields of almost all other top law schools.)

To say that expenditures-per-student can have these important consequences on a school's ranking and its yield is not to imply that this spending criterion is illegitimate. But one cannot help wondering: if the additional spending-per-student isn't elevating placement rates or lowering student-faculty ratios, or allowing a school to obtain a faculty that is seen by other law professors as superior to that of other schools (and all of these are already measured directly and counted by the ranking system), precisely why should the money matter so much? The U.S. News methodology may result in double-counting of many considerations, but dollars spent may be a particularly problematic example. Yet there may be responses: perhaps Yale's resources don't increase its placement rate, but affect the kinds of jobs its graduates are able to obtain. For example, maybe its resources allow more students to undertake their own original research, which leads to more jobs in the academy. And so forth. Again, as with most other features of the U.S. News rankings that we've discussed above, our goal here is not so much to provide definitive answers as to cause students to think a bit more critically as they consume the bottom-line ordinal rankings for which U.S. News is best known.

February 24, 2015

Argument analysis: Review of consular visa decisions for the twenty-first century

Cross-posted from SCOTUSblog.

Yesterday, the Supreme Court heard oral arguments in the much-anticipated immigration case of Kerry v. Din. In that case, the U.S. government - in the face of strong academic commentary to the contrary - steadfastly defends the doctrine of consular non-reviewability and its bar to the judicial review of visa decisions of Department of State consular officers.

A consular officer had denied the visa application of Kaniska Berashk, a citizen of Afghanistan and the spouse of Fauzia Din, a U.S. citizen. The consular officer's denial merely cited the broad definition of terrorist activities in the immigration statute. Din sought judicial review of her husband's visa denial. The U.S. Court of Appeals for the Ninth Circuit allowed her that review and found that the consular officer's explanation of the visa denial was insufficient.

Office of the Solicitor General veteran Ed Kneedler argued the case for the United States. Relying heavily on much-criticized Cold War cases of Knauff v. Shaughnessy and Shaughnessy v. United States ex rel. Mezei and frequently invoking the need to protect the national security, Kneedler argued that the U.S. government has the undisputed power to exclude aliens from the United States and that "[o]ur position is that there is no judicial review" in the case of the denials of immigrant visas by consular officers. Kneedler later elaborated: "This Court has said on a number of cases that when it comes to the exclusion of aliens, whatever process Congress provides is the process is due." At one point in the argument, Justice Ruth Bader Ginsburg pressed Kneedler into conceding that the U.S. government's position was that there is no exception to the consular non-reviewability doctrine. Jarred by the government's absolutist approach, Justice Stephen Breyer asked whether a consular official could, for example, deny a visa for racially discriminatory reasons or because he thought husbands and wives should not live together. The answer apparently was "yes."

Justices Sonia Sotomayor, Elena Kagan, Breyer and Ginsburg seemed sympathetic to Din's case. Among other things, these Justices feared possible erroneous denials of visas with no opportunity for correction through judicial review. Justice Sotomayor characterized the administrative process after the denial of a visa to a spouse as an "administrative nightmare."

Justices Sotomayor and Breyer (and to a certain extent Justices Anthony Kennedy and Justice Samuel Alito) were also troubled by the possibility of uncorrected mistakes by the government. When Kneedler assured the Court that the decisions were double-checked before denying a visa, Justice Sotomayor countered that "that's what we were told after September 11th," noting that the government had claimed that it had good reason for arresting and detaining foreigners, only to later admit that some alleged terrorists had been "erroneously identified."

The Justices generally seemed sensitive to the possible national security concerns at stake. A number of questions focused on the practicalities of judicial review if the government claimed that disclosure of the basis for the visa denial might jeopardize national security. (The U.S. government did not make this argument in Din's case.). One of the possibilities mentioned would be for in camera review by the judge.

At various times in the argument, the Justices asked questions about how Kleindienst v. Mandel applies to the case at hand. In that case, the Court ruled that a court could review the claim of a group of U.S. citizens who asserted that the exclusion of a Marxist journalist violated their First Amendment right to hear him speak. The Court found that the basis offered - that the applicant had violated the terms of visas on previous visits to the United States - was a "facially legitimate and bona fide reason" for the executive action. Justice Kennedy, the possible swing vote in the case, seemed to agree with Justices Ginsburg, Breyer, Sotomayor, and Kagan that, under Mandel, Din has the right to demand an explanation for the visa denial.

Kneedler attempted to distinguish Mandel as involving a different decision than a visa denial. As a back-up argument, he claimed that a citation to the statute was sufficient to satisfy the deferential requirement of a facially legitimate and bona fide reason for the visa denial.

Mark Haddad of Sidley Austin LLP argued the case on behalf of Fauzia Din. While appropriately conceding that Congress has broad authority over immigration, he urged the Court to affirm the Ninth Circuit’s conclusion that Mandel required a further explanation of the visa denial.

Much of the Justices’ questioning of Haddad focused on the scope of Din’s constitutional rights. Chief Justice John Roberts and Justices Antonin Scalia and Alito worried about the prospect that the right to contest immigrant visa denials would be extended to relatives. They seemed wary of encouraging spouses and other family members to seek judicial review when their relatives are barred from entering the United States.

In this vein, several of the Justices raised the question whether, if the Court ruled in Din’s favor, a wife might hypothetically be able to challenge a criminal conviction even if her husband for whatever reason did not want to do so. However, if permitted by the case law, that issue could be addressed by allowing the visa applicant himself to seek judicial review. In this case, the decision was made to pursue judicial review based on an opening left by Mandel allowing a U.S. citizen to challenge the denial.

Another practical concern of some of the Justices was whether there might be a flood of appeals of visa denials if the Court were to allow judicial review of consular officer decisions. That relatively few cases have been appealed under Mandel, and in the Ninth Circuit where some kind of judicial review is currently permitted, suggests that there would not be a flood of appeals if the Court decided in Din’s favor.

Although always hazardous to predict a decision in a case based on the oral argument, it seems to me that the Justices are closely divided on this case. As frequently is the case with the Roberts Court, Justice Kennedy will perhaps determine the precise outcome.

Based on the argument, my prediction is that the Court will embrace the deferential Kleindienst v. Mandel framework. However, it is far from certain whether the Court will find that the denial in this case satisfied the facially legitimate and bona fide requirement.

February 18, 2015

Argument preview: The doctrine of consular non-reviewability – historical relic or good law?

Cross-posted from SCOTUSblog.

The well-established doctrine of consular non-reviewability precludes judicial review of the visa decisions of State Department consular officers. It is a first cousin of immigration law's exceptional "plenary power" doctrine, which generally immunizes from judicial review the substantive immigration decisions of Congress and the executive branch. In refusing to disturb the federal government's reliance on secret evidence to deny the non-citizen spouse of a U.S. citizen admission into the country, the Supreme Court in 1950 summarized the plenary power doctrine as follows: "[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned."

More recently, the Court has creatively avoided invoking the plenary power doctrine and instead ensured judicial review of immigration decisions. For example, in Landon v. Plasencia, the Court held that a lawful permanent resident seeking to return to the United States after a weekend in Mexico possessed a due process right to a hearing on the propriety of her exclusion from the country.

The courts, including the Supreme Court, have created a number of exceptions to the doctrine of consular non-reviewability. In Kleindienst v. Mandel, the Court ruled that a court could review the claim of a group of U.S. citizens who asserted that the exclusion of a Marxist journalist violated their First Amendment right to hear him speak. The Court found that the basis offered - that the applicant had violated the terms of visas on previous visits to the United States - was a "facially legitimate and bona fide reason" for the executive action.

Next Monday, the Supreme Court will hear oral arguments in Kerry v. Din, a case that provides it with the opportunity to provide much-needed guidance on judicial review of consular officer visa decisions. It also could offer some hints about the future of the plenary power doctrine.

Facts

The facts of the case could have been ripped out of the cable television series Homeland.

In 2006, Fauzia Din, a naturalized U.S. citizen, married Kanishka Berashk, a citizen of Afghanistan. A consular officer at the U.S. Embassy in Pakistan denied Berashk's visa application. The denial simply cited a detailed, complex, and broad provision of the immigration law that bars the admission into the United States of non-citizens who have engaged in "terrorist activity." The consular officer failed to identify the alleged conduct that triggered the exclusion.

The district court dismissed Din's suit challenging her husband's visa denial. The Ninth Circuit reversed. A majority concluded that (1) "a citizen has a protected liberty interest in marriage that entitles the citizen to review of the denial of a spouse's visa"; (2) the reason offered for the denial was not "facially legitimate"; and (3) the consular officer should have explained "what [he] believed [Berashk to have] done" that justified the visa denial.

Arguments in the briefs

Relying heavily on plenary power precedent, the Solicitor General argues that Din lacks a constitutionally protected interest in her husband's visa application and that the Ninth Circuit erred in finding that she has a right to judicial review of his visa denial. The government seeks to limit Kleindienst v. Mandel to its facts and further contends that the State Department should not be required to offer a specific explanation in denying a visa on national security grounds.   The government specifically contends that judicial review à la Mandel will have "the steep cost of weakening the protections that keep terrorists from our shores."

This case is one of the few occasions in which the Obama administration has asked the Supreme Court to deny judicial review of an immigration decision. Indeed, in recent years it has refused to defend two lower-court decisions - including one accepted for review this Term holding that the immigration statute barred judicial review of a Board of Immigration Appeals ruling.

Din emphasizes that, like the plaintiffs in Mandel, she is a U.S. citizen challenging the visa denial and a violation of her rights, rather than an alien on foreign soil seeking initial entry into the country. She claims (1) a constitutional right to marry and live with one's spouse; (2) that the denial of her spouse's visa infringed that right; and (3) that due process requires that the government provide a facially legitimate and bona fide reason for the denial.

Several groups filed amicus briefs, all in support of Din. In one brief, a number of former consular officers argue in favor of judicial review on the ground that many contemporary visa denials are not discretionary judgments, as was historically the case, but are instead based on whether the person appears on various database and other watchlists. And in another brief, seventy-three law professors question the conventional understanding of foundational cases of the doctrine of consular non-reviewability. They contend that Kleindienst v. Mandel requires judicial review and that such review is consistent with the immigration statute.

Analysis  

The Court in this case has the opportunity to narrow the doctrine of consular non-reviewability. Besides the possible doctrinal effects of a decision - including further limitations on the doctrine - the case has the potential for great practical significance. Consular officers stationed in U.S. embassies around the world annually deny hundreds of visa applications. The specific judicial review question is complicated in the case before the Court by the consular officer's blunt invocation of terrorism as the basis for denial of the visa application.

The ultimate outcome largely depends on how the Court applies Kleindienst v. Mandel. Given its contemporary inclination toward some modicum of judicial review of immigration decisions, the Court might be expected to find that judicial review of visa denials - even if limited in scope - is justified. But how limited should the scope be? Should courts accept the U.S. government's mere citation to the terrorist activity provision of the immigration law without any explanation, even if that would effectively deny an applicant a meaningful opportunity to rebut the charge? Or should the courts require further explanation from the government - for example, in this case, how and why the consular officer found Berashk inadmissible. How the Court resolves this issue may be the key to the case.