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September 16, 2016

A New Look at Design Law

Design is the currency of modern consumer culture and increasingly the subject of intellectual property claims. Apple, the world's biggest company, owes its value largely to design. Notably, where courts once rebuffed Apple's claim to own a popular graphical user interface, today design-related claims lead to billion dollar judgments in Apple's favor. Global litigation between Apple and Samsung over the design of smartphones and tablets has been a watershed development, bringing to light the enormous importance of "look and feel" as both a driver of market value and a subject of intellectual property protection. Today, design - which includes everything from shape, color, and packaging to user interface, consumer experience, and brand aura - is attracting unprecedented attention. Indeed, the Supreme Court will soon decide two cases concerning the intricacies of design protection, one involving design patent damages and the other copyright in cheerleading uniforms.

But the law of design is confused and confusing. It is splintered among various doctrines in copyright, trademark, and patent law. Indeed, while nearly every area of IP law protects aspects of design, the law has taken a siloed approach, with separate disciplines developing ad hoc rules and exceptions. To make matters worse, different disciplines within IP use similar terms and concepts - functionality, consumer confusion - but apply them in wholly different, even contradictory ways. In the Apple v. Samsung litigation, for example, the Federal Circuit found Apple's trade dress not protectable because it is functional in numerous ways. But then the court found the very same designs protectable under design patent law, which only protects non-functional elements, because design patent doctrine defines functionality differently. This paradoxical result should give pause. Although Congress and the courts may appear to have carefully calibrated protection within each separate doctrinal area, they may not have adequately considered the simultaneous application of other types of protection. Without an overarching understanding of and approach to design protection, the cumulative effect of overlapping exclusive rights is likely to lead to over protection. Scholarship, too, has focused on design protection in distinct areas of law.

In a new paper called "The Law of Look and Feel," forthcoming in volume 90 of the Southern California Law Review in 2017, Professor Peter Lee and I seek to provide the first comprehensive assessment of the regulation of consumers' aesthetic experiences in copyright, trademark, and patent law-what we call "the law of look and feel." We canvas the diverse ways that parties have utilized (and stretched) intellectual property law to protect design in a broad range of products and services, from Pac- Man to Louboutin shoes to the "feel of the '70s" captured in Marvin Gaye's music, from the décor of Mexican restaurants to Apple's technologies of "pinch to zoom," "bounce-back" and "slide to unlock." In so doing, we identify existing doctrines and principles that inform a normatively desirable "law of look and feel" that provides graduated protection for design. In particular, we reveal that most areas of IP law have developed limiting principles that usefully cabin protection of "look and feel" in response to evolving standardization, consumer expectations, and context. This is occurring largely without forethought, cobbled together as parties seek to expand design protection, on the one hand, and articulate limitations and exceptions, on the other. We distinguish this implicit, normatively desirable "law of look and feel" from the manner in which some courts have expressly used the term "look and feel" to justify expansive intellectual property protection of design. Going further, we argue that the new enclosure movement of design, if not comprehensively reformed and grounded in theory, can in fact erode innovation, competition, and culture itself.

We define "look and feel" broadly. To begin, we adopt a definition that accords with how design theorists conceptualize design writ large, which is more capacious than how courts have used the term "look and feel" in judicial opinions. "Look and feel," as we understand it, both harkens back to the longstanding philosophical study of "aesthetics" as well as includes the contemporary conception of design in the emergent liberal art of "design thinking." In his Lectures on Aesthetics, Hegel referred to aesthetics as "the science of sensation, of feeling."8 Today, commerce has come to appreciate the profound importance of aesthetics for market success. "Aesthetics," Virginia Postrel writes, "is why you buy something." As with Apple's iPhone, look and feel blends beauty and utility as well as integrates form and function. At the level of artifact, look and feel includes elements such as shape, color, style, layout, packaging, and overall visual appearance. At a more conceptual level, it encompasses intangible qualities such as modes of interaction, aesthetic experience, brand aura, and zeitgeist.

Adapting familiar principles to a novel context, we argue that exclusive rights in look and feel that are not sufficiently attentive to standardization, consumer expectations, and context may undermine innovation and cultural cohesion. In a variety of ways, intellectual property law is skeptical of strict exclusive rights over standards, whether they are expressive, linguistic, or technological. Copyright does not allow exclusive rights in stock and necessary expressions, trademark does not extend to generic words embodying linguistic conventions, and patent law mitigates exclusive rights on technological platforms engendering significant social reliance. In similar fashion, we develop a conception of look and feel as zeitgeist - an aesthetic or cultural standard that objectively expresses the spirit of an age. Extending principles of intellectual property law, we argue that when particular forms of look and feel become our lexicon and central to our shared meaning and understanding of a certain time and place, they should come to belong to the culture at large. As we show, doctrines from copyright (scènes à faire and merger) and trademark (distinctiveness, genericide, functionality) already recognize this dynamic nature of design as zeitgeist and relax exclusive rights accordingly. Our comprehensive view of the law of look and feel reveals areas of design law, notably design patents, that fail to incorporate this dynamic view of design.

While offering prescriptions for several branches of IP and applications to the design cases pending before the Supreme Court, we argue in particular for bold changes to design patent law, from its subject matter to its standard for infringement and method for assessing remedies. We seek to bring balance to this jejune area of law by incorporating and tailoring limitations from other more mature fields of intellectual property.

September 15, 2016

Senior Associate Dean Sunder and Professor Peter Lee participate in roundtable on “The Psychology and Sociology of Creativity and Intellectual Property” at Stanford Law School

On September 9 and 10, Professor Peter Lee and I participated in an invitation-only roundtable on "The Psychology and Sociology of Creativity and Intellectual Property" at the Stanford Law School.


I took this photo during the roundtable event. Professor Lee is second from left.

Professor Lee spoke to the question of "Why Do Companies Patent?" Professor Lee said smaller companies and larger companies may have different reasons for patenting, and similarly, that companies and their employees have different motivations for patenting. In addition, he noted the sociological evolution regarding patents at universities, from anti-commercial to seeing patents as part of the university's institutional mission.

I was invited to speak on "The Psychology and Sociology of Brands and Trademarks." I discussed how brand value is as much a function of the consumer as the producer. Brands tell us not just about the product but the buyer - about the buyer's identity and social status. While cognitive psychology understands branding as a science (where MRI readings can assist our understanding of how consumers react to brands), literary theory understands branding as an art, involving storytelling and archetypes. There are excellent chapters on the psychology and sociology of branding in a recent book I co-edited with NYU Professor of Law Barton Beebe and Hong Kong University Professor of Law, Haochen Sun, called "The Luxury Economy and Intellectual Property," published by Oxford University Press. 

I also spoke of the increasing role of design patents as a tool for protecting brand image, and of a new paper in which Professor Lee and I propose reforms to design patent law. The paper, "The Law of Look and Feel," is forthcoming in the Southern California Law Review. You can read a draft of the article here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2733780.

September 9, 2016

Interview with Professor Emeritus Edward J. Imwinkelried

An interview with Professor Emeritus Edward J Imwinkelried appears in the Summer 2016 issue of the ABA's Litigation Journal. Author Martin J. Siegel is with The Law Offices of Martin J. Siegel, Houston, and is editor in chief of Litigation.

Here is an excerpt:

MJS: One of the areas you're closely identified with now is scientific evidence. What drew you to that?

EJI: Every week, the Criminal Law Division at the JAG School had a meeting. At one of the first meetings I attended, someone remarked that scientific evidence was popping up in a growing number of cases. Colonel Overholt decided that "someone" should go to the library and learn enough about the subject to teach a block of instruction. Of course, that "someone" was the newest addition to the division-namely, me. Then, a few months later, Paul Giannelli arrived and became my officemate. Paul was fresh from earning his LLM in forensic science at George Washington. Paul's arrival solidified my interest in the subject. Paul and I have been collaborators and, more importantly, great friends for over 40 years.

MJS: Daubert v. Merrell Dow Pharmaceuticals is probably the evidence-related decision best known to civil litigators. Every law student learns it, and every litigator eventually argues it. The Court cited not just one of your writings in Daubert, but two- one being your well-known treatise, Scientific Evidence. Were you involved in the case in any way, or just cited by the Court?

EJI: I worked as a consultant to the plaintiffs in Daubert. One of the primary authors of the brief was Ken Chesebro. Ken had read some of the articles I had written about Rule 402 and the 402-based contention that the Federal Rules of Evidence superseded Frye. Ken asked me to help him write the first part of the brief in which we developed that contention. Working on the brief was a learning experience. The day before we were sending the brief to the printer, in the hour between 4:00 and 5:00 p.m., I received several faxes from Cambridge and sent several to Cambridge. As the clock was ticking to five and I had to be out the door to pick up my son from practice, I was dictating to the secretary in Cambridge as the last fax was coming off the machine. When I went home, I told my wife Cindy, "Now I remember why I don't want to be a real, practicing attorney."

Read the full interview at http://www.americanbar.org/publications/litigation_journal/2015-16/summer/interview_professor_edward_j_imwinkelried.html (password required).

September 9, 2016

The Problem With the Texas Federal Court’s Nationwide Order Regarding Bathroom Access for Transgender Students

Co-authored with Vikram Amar. Cross-posted from Justia's Verdict.

Late last month, a federal trial court in Texas issued a nationwide order preventing the federal Department of Education (DOE), as well as a number of other federal agencies, from enforcing-anywhere in the country-their "interpretation of the definition of 'sex' in the various written directives ... as applied to Title IX ... and Title VII" (which are federal laws that prohibit certain entities from discriminating on the basis of sex). The basic underlying legal issue in the case (titled Texas v. United States) is whether school districts must permit transgender students to use restrooms and other facilities consistent with their gender identity, rather than the sex assigned to them at birth. According to the federal district judge, the DOE's position that Title IX requires schools to do just that is inconsistent with the DOE's own regulations and federal procedural requirements, and, accordingly, is unenforceable.

There are many things that could be said about the substance of the court's opinion. (The U.S. Court of Appeals for Fourth Circuit in the mid-Atlantic region, for example, previously reached a contrary conclusion about whether the DOE's interpretation of its own regulations was entitled to judicial deference in G.G. v. Glouster County School Board, finding the DOE's interpretation was permissible). But in the space below we focus more narrowly on the question of the appropriateness of a nationwide injunction.

To better frame that remedial question, we should provide a bit more background on the lawsuit itself. As noted above, the ultimate question folks care most about is whether school districts must, under federal antidiscrimination law, permit transgender students to use the restroom consistent with their gender identity. There are a number of cases pending in courts around the country that raise some form of this underlying question (including the Fourth Circuit ruling that answered that question in the affirmative, and other cases in other regions of the nation.)

The Texas case purports to get at this question of the meaning of antidiscrimination law by posing a more technical query: whether various documents issued by various federal agencies-which state that, in the view of the federal government, federal statutes and regulations are best read as meaning that school districts have an obligation to allow transgender students to use the bathroom consistent with their gender identity-are entitled to deference and provide legitimate, rather than unlawful, guidance to school districts. The group of plaintiffs in the Texas case consists of various states and state agencies drawn from a dozen or so of the fifty states. These plaintiffs sued as defendants a variety of federal officials and federal agencies, asserting, again, that different documents issued by these federal officials and agencies are unlawful.

To be clear, however, even if the agencies' various interpretative documents are not entitled to deference (or indeed, turn out to be "unlawful"), public schools still must comply with the relevant statutes, including Title VII and Title IX, which prohibit sex discrimination in employment and schools, respectively. Even if DOE's documents asserting its view that refusal to permit transgender individuals bathroom choice constitutes sex discrimination under federal law are legally flawed, that does not mean that its view of the meaning of sex discrimination law is wrong. Indeed, separate and apart from the agency interpretations, a number of courts have held that Title VII and Title IX prohibit discrimination against transgender people, using reasoning that might support entitlement of transgender persons to use bathrooms consistent with their gender identity.

With that background, let us home in on the scope-of-the-remedy issue. The Texas district court judge issued a nationwide injunction preventing the various federal defendants from "enforcing the [multiple documents] against" not only the plaintiffs, but also against "other public, educationally-based institutions." In other words, the court issued an order that offered protection not just to the plaintiffs before it, but to all school districts in the country, including those located in areas where other federal courts might have different views on the permissibility of the DOE's interpretive guidance.

Whatever one thinks of the district court's analysis of the legality of DOE's documents, the court's sweeping, countrywide, order is very legally dubious. To be sure, when the court has jurisdiction (or power to speak the law) over a defendant (including U.S. government agencies), the court has authority to order the defendant to act or not act. This includes the authority to issue a directive that has effects "outside the territorial jurisdiction of the court," but only because sometimes a plaintiff operates in more than one federal judicial district, and a court should be able to give a plaintiff full relief from a defendant's wrongful actions, not just local relief.

But one problem with the district court's order is that, by preventing the DOE and other federal agencies from enforcing their guidance documents anywhere, the court has effectively provided relief to dozens of states and hundreds (if not thousands) of school districts who were not plaintiffs in this case. It is one thing to give a plaintiff who sues full relief; it is another for the relief to extend beyond the parties in the case at hand.

What is so wrong about protecting other states and school districts that did not sue? At first blush, it may seem that if the federal government is acting wrongly, a court should tell it to stop acting wrongly against everyone in America, not just the parties who sued. But this instinct fails to account for the fact that not everyone agrees the federal government is acting wrongly, and one district judge should not, absent a class action where all the states are represented and the federal government is on clear notice-when it chooses how aggressively to contest a case-about precisely how broad the remedy would be, try to decide the issue for the whole country; that is not the function or strength of district courts. Indeed, resolving matters once and for all for the whole nation is a power we invest principally in the Supreme Court.

It is for that reason that courts often say something to the effect that "injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Related to this is the admonition that when exercising its equitable powers to issue an injunction, a court must be "mindful of any effect its decision might have outside its jurisdiction [insofar as c]ourts ordinarily should not award injunctive relief that would cause substantial interference with another court's sovereignty." A contrary policy would, in the words of the Supreme Court, "substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue." And if and when the issue makes its way to the Supreme Court, overly broad district court (or circuit court) injunctions that prevent other courts from hearing cases and weighing in can "deprive the Supreme Court of the benefit of decisions from several courts of appeals," a diversity of viewpoint the Court uses to decide the best nationwide outcomes. (This process is sometimes referred to as lower court "percolation.") And the fact that the district court said it would entertain a request to narrowly limit its nationwide injunction to avoid "unnecessary interfere[nce]" with other "currently pending" cases does not eliminate this concern.

The Texas district court's injunction itself illustrates the pitfalls of overly broad injunctions. To give but one example, several months ago, the Fourth Circuit (as alluded to above) was presented with essentially the same arguments that were presented to the Texas court in this case. That case-G.G. v. Gloucester County School Board-was brought by a student, G.G., against his local school board. G.G. was assigned the female sex at birth, but identifies as male. G.G. has been known as a male since ninth grade. He has changed the sex designation on his driver's license and has legally changed his name to a conventionally masculine name. At the beginning of his sophomore year, G.G. informed school officials that G.G. would be attending school as a male student. Initially, G.G. agreed to use a separate restroom in the nurse's office. But it quickly became clear that this was not an acceptable solution. In October of that year, the principal agreed that G.G. could use the boys' bathrooms. For the next several weeks, G.G. used boys' restrooms "without incident." But after some parents learned about the situation and demanded that the school board prevent G.G. from using the boys' bathrooms, the school board adopted a policy "prohibiting transgender students from using the same restrooms as other students."

G.G filed suit in federal court, alleging that the policy violated Title IX, a federal statute that prohibits sex discrimination in federally supported schools, as well as the Equal Protection Clause of the Fourteenth Amendment. Like the trial court in the Texas case, the district court in G.G.'s case concluded that the agency's interpretation of its own regulation regarding bathrooms was not entitled to deference and was wrong as to its bottom line. The Fourth Circuit reversed.

Specifically, the Fourth Circuit held that the "Department[ of Education]'s interpretation of its own regulation, § 106.33, as it relates to restroom access by transgender individuals, is entitled to [administrative] deference and accorded controlling weight in this case." This decision is now the controlling law across the Fourth Circuit. Although the Fourth Circuit is the only appellate court that has addressed this specific question to date, cases on this issue are pending in courts around the country.

Particularly (though not only) when another court has already issued a contrary pronouncement on the same question, issuing a nationwide injunction causes substantial interference with the power of other courts, and with the process of helping frame issues that might ultimately be taken up by the Supreme Court.

A related problem is that nationwide injunctions under such circumstances also encourage what lawyers call "forum shopping"-that is, picking a particular place to sue not because of the convenience of the parties or the location of the witnesses or evidence (which are legitimate factors for choosing a particular venue), but because of a predicted outcome. And, that indeed seems to be what is going on in this case. Most of the fifteen plaintiffs in the Texas case are states or government agencies located in states outside of Texas. And, even more importantly, most of the plaintiffs are located in jurisdictions where there is existing law contrary to their position. As one of the amicus briefs filed in the case puts it: "Plaintiffs Alabama, Arizona Department of Education, Georgia, Huber-Overgaard Unified School District, Kentucky, Tennessee, and West Virginia would lose this lawsuit if they filed it in their home states or anywhere in the federal circuits whose law governs them." Indeed one of the plaintiffs-West Virginia-is in the Fourth Circuit, which, as noted above, has already issued a contrary order on the precise question presented to the Texas district court. And West Virginia made the very same arguments to the Texas court that it unsuccessfully made to as an amicus in the Fourth Circuit. Giving plaintiffs an incentive and opportunity to have multiple bites at the apple like this would not promote efficiency or fairness.

In its 38-page opinion, the Texas federal court discusses the propriety of nationwide relief in just a sentence or two, and cites only one case-a Supreme Court case in which nationwide relief was upheld, but where there was a class action that had been certified in which the plaintiff class was itself nationwide, and where the lower courts had been careful not to allow their injunctions to affect other pending or likely litigations. In short, the district court gave no reasons or analysis to justify its presumptively overbroad relief.

For the record, we should note that one of us, Dean Amar, has in other commentary (including here and here) questioned an overly broad injunction that obtained a liberal result (as contrasted with the conservative result reached by the Texas district court case). In the prior instance, a few same-sex couples sued California officials to obtain marriage licenses even though state law, California Proposition 8, limited marriage in California to a union between a man and a woman. The district court judge, Vaughn Walker, issued what on its face appeared to be a statewide ban on California officials applying Proposition 8 to any same-sex couples, not just the plaintiffs before him. Dean Amar argued (relying on the legal principles discussed above) that, absent class action certification (which might have been plausible but which wasn't sought), the district court's remedy should have been limited to the plaintiffs in the case.

We mention this because procedural rules, by definition, are supposed to be trans-substantive, and when they seem result-oriented (as they did here in Texas given the absence of analysis and care offered by the district court), cynicism about the judicial system is the result.

 

September 1, 2016

Immigration Enforcement Now, Immigration Enforcement Forever: Donald Trump Calls for a Deportation Nation

Cross-posted from Immigration Prof Blog.

Yesterday was a big day for Donald Trump and immigration in campaign 2016.   There has been talk of Trump softening on immigration.  At the end of the day, he reasserted a pretty hard line.

First, Trump visited Mexican President Enrique Pena Nieto in Mexico City.  They had a private discussion and both gave public remarks.  Both talked firmly yet diplomatically in the public remarks, with Donald Trump seeming somewhat subdued to me and, some might say, statesman-like.  

That evening, in Phoenix, Arizona, Trump gave an impassioned immigration policy speech, which has attracted considerable national attention.  See here, here, here.  (For fact-checking by Michelle Lee of the Washington Post, click here.).  In his remarks, Trump at various times targeted the most unpopular immigrants -- "criminal aliens", immigrant public benefit recipients, and terrorists.

Rudy Guiliani kicked off the evening, among other things, attacking the U.S. government's admission of refugees from Syria.  A strong force for immigration enforcement (and ardent opponent of comprehensive immigration reform),  Senator Jeff Sessions (R-AL) spoke next.  Vice Presidential candidate Mike Pence (R-Ind) generously introduced Donald Trump.

Stating that his focus was on "illegal" immigration, Trump offered his immigration policy prescriptions, while liberally criticizing President Obama's "open borders" policies, which he said that Hillary Clinton will expand upon.  

Trump emphasized the need to ensure that noncitizens admitted into the country adhere to American values and "love us."  He mentioned the need to admit into the country noncitizens most likely to assimilate. He frequently attacked "sanctuary cities."  Trump emphasized the need for the immigration laws to serve the interests of US citizens, not those in foreign countries.  As has been customary in his musings on immigration during the campaign, Trump mentioned some horrible crimes allegedly committed by immigrants on "good Americans." 

Here  is the Trump immigration 10-point "plan":

1.    Build a wall. Mexico will pay for the wall.  The United States should also use technology to secure the border. 

2.    End catch and release. Immigrants arrested and subject to removal will be detained until removal.

3.    "Zero tolerance" for "criminal aliens." He will deport "criminal aliens" beginning his first day in office. "They're gone."  Trump specifically mentioned restoring Secure Communities, which was dismantled in November 2014, and reviving 287G agreements, which allow the federal government to enter agreements with state and local governments to assist in immigration enforcement.   He would triple the size of Immigration and Customs Enforcement and create a deportation task force to come up with recommendations on how to remove "criminal aliens."  (Secure Communities had been heavily criticized for resulting in the removal of many small-time, minor criminal offenders, such as those with minor traffic violations.  It was replaced with the Priority Enforcement Program, which focuses removal efforts on noncitizens convicted of serious crimes.. 

4.    Pass legislation to prohibit "sanctuary cities." 

5.    End the Obama administration's deferred action programs and enforce the immigration laws.  In a Trump administration, all immigration laws will be enforced.  

 6.     No refugees will be admitted into the country unless they can be properly vetted.   Trump supports "extreme vetting" and ending the admission of refugees from Syria and Libya.  He also calls for "ideological certification" to ensure that those who are admitted share "our values and love our people."  The ideological tests would include consideration of the noncitizen's views on women and sexual orientation.

7.    Ensuring that other countries take their people back when they are ordered deported

8.     Complete biometric entry/exit visa tracking system.  Trump emphasized that visa overstays must be a priority and will be a priority of a Trump administration.  Visa expiration dates will be enforced.  

9.    Expanding expand the use of E-Verify to halt work by undocumented immigrants.  He also advocates stopping public benefit receipt by immigrants and enforcement of the "public charge" removal ground.  

10.    Reform legal immigration to protect our workers     The nation needs a new immigration commission to establish immigration levels, select immigrants who fit in and can be self sufficient, and serve our needs.  We need an immigration system that makes "America first."  Trump says that we should choose Americans based on merit.

All in all, Trump pulled together many of the statements that he has made on immigration from past speeches.  He seemed to avoid targeting Muslims and immigrants from Mexico in his remarks, although his policies would have devastating consequences for those groups.

August 12, 2016

Back to the Future? Returning Discretion to Crime-Based Removal Decisions

Cross-posted from NYU Law Review.

Jason A. Cade has powerfully advocated for returning greater discretion to the courts and agencies in making and reviewing Executive Branch decisions to remove noncitizens from the United States. His latest Article, Return of the JRAD, calls for a revival of a now-discarded procedural device of allowing courts sentencing noncitizen criminal defendants to make a "Judicial Recommendation Against Deportation" (JRAD) that would bar the Executive Branch from removing a noncitizen from the United States.

Congress eliminated the JRAD from the immigration laws in 1990. In calling for its comeback, Cade points to a ruling by revered federal district court judge Jack Weinstein. In United States v. Aguilar, Judge Weinstein issued a sentencing order that, despite the fact that Congress abolished the JRAD a quarter century ago, resembled the old recommendations against deportation. The court thus went beyond the law on the books to advocate against the removal from the United States of a one-time, non-violent criminal offender with U.S. citizen children.

One might dismiss Judge Weinstein's recommendation as dicta. However, Jason Cade views the order as a much-needed sign of judicial resistance to the harsh criminal removal provisions of the modern U.S. immigration laws. He advocates the return of discretionary authority to the courts to ensure greater proportionality and reasonableness to contemporary removal decisions.

August 12, 2016

Deanship Conference: "Promoting Diversity in Law School Leadership"

Today I am speaking at a panel at the University of Washington. It's part of a deanship conference titled "Promoting Diversity in Law School Leadership."

Here's the event description: "UW School of Law with Seattle University School of Law & the Society of American Law Teachers (SALT) offer this biennial workshop to encourage and assist members of underrepresented groups to pursue deanships and other university and law school leadership positions."

I am proud that King Hall has a faculty that is both excellent and diverse. In fact, to my knowledge, we have the only majority-minority faculty among top-tier law schools. See my recent op-ed on the topic in The Chronicle of Higher Education.

July 29, 2016

Federalism and the Disappearing Equal Protection Rights of Immigrants

Cross-posted from the Washington and Lee Law Review.

Jenny-Brooke Condon's article The Preempting of Equal Protection for Immigrants? analyzes important issues surrounding the constitutional rights of immigrants. Professor Condon in essence contends that the current legislative, executive, and scholarly focus on the distribution of immigration power between the state and federal governments has undermined the Equal Protection rights of legal immigrants in the United States. Despite the contentious national debates over immigration reform, immigrants' rights have generally been of secondary concern in contemporary immigration scholarship, which is now dominated by analysis of immigration federalism.

Professor Condon undoubtedly is correct that we should not lose sight of the rights of immigrants through a myopic focus on federalism concerns. Courts should be vigilant to protect noncitizens from the excesses of all governmental exercises of power, including discrimination against immigrants by the federal government.

This essay identifies two areas for future inquiry that build on The Preempting of Equal Protection for Immigrants? First, Professor Condon questions the arbitrary line-drawing between the standards of review of state and federal alienage classifications. But, she herself draws a questionable line by advocating for greater protection of the constitutional rights of legal immigrants, while stopping short of calling for the extension of rights to undocumented immigrants. However, all immigrants are disenfranchised, lack direct political power, and frequently suffer the disfavor of the majority in the political process. That status militates in favor of strict scrutiny review of laws targeting undocumented as well as lawful immigrants.

Second, if Professor Condon's call for greater attention to the Equal Protection rights of noncitizens is taken seriously, we must examine the continuing vitality of the plenary power doctrine. That exceptional doctrine shields from judicial review invidious classifications under the U.S. immigration laws, including discrimination that would be patently unconstitutional if applied to U.S. citizens; those laws historically have discriminated against noncitizens who are racial minorities, poor, disabled, women, political dissidents, and others. Dismantling what is known as "immigration exceptionalism" has long puzzled immigration law scholars. Professor Condon reminds us of the need to reconsider the constitutional immunity for immigrant admissions and removal criteria.

July 5, 2016

United States v. Texas: The Supreme Court Punts, Returns the Political Question of Immigration Reform to Congress

By Kevin R. Johnson

[Crosspost from ImmigrationProf Blog]

A little over a week ago, an equally divided Supreme Court left intact a lower court injunction barring the implementation of a major immigration initiative of the Obama administration. The program and litigation had proven to be controversial. Not surprisingly, most of the voluminous commentary about the case has focused on the power of the President vis-à-vis Congress to regulate immigration, the plight of the undocumented immigrants who might have been eligible for temporary reprieve under the program, the role of the states in future immigration policies, and related issues.

It should not be surprising that little of the commentary has focused on the real legal issues before the Supreme Court. Raising legal issues that only a law professor could love, the case really is about something much deeper and much more important to the United States. The case is simply the latest skirmish in the long political debate over immigration reform. As seen with the recent Brexit vote – in which concerns with immigration contributed to passage of a referendum removing the United Kingdom from the European Union, American immigration politics – as historically has been the case -- can be messy, divisive, and heated.

With no success, Congress has debated comprehensive immigration reform bills for more than a decade. Some versions of the reform bills would have offered a path to legalization for the 11-12 million undocumented immigrants living in the United States. Various incarnations of the DREAM Act would have provided relief to undocumented youth.

Because of the lengthy stalemate in Congress, President Barack Obama announced measured, limited, and temporary steps to address some of the issues facing this nation’s undocumented immigrants.

In November 2014, the Obama administration announced a “deferred action” program, Deferred Action for Parents of Americans (DAPA) for the undocumented parents of U.S. citizens and lawful permanent residents. The program built on the previous Deferred Action Program for Childhood Arrivals (DACA) program, which was implemented in the summer of 2012. DACA provided limited and temporary relief to hundreds of thousands of undocumented young people and was viewed as a ray of hope at a time when improvements through congressional action looked bleak. DAPA would have provided similar relief to many more.

“Deferred action” is fancy language that means that the U.S. government will not focus on removing undocumented immigrants who are otherwise law-abiding. It is a kind of prosecutorial discretion routinely employed by government in the enforcement of the law. Deferred action is not a path to legalization or citizenship and should not be mistaken as some kind of “amnesty.” It instead is a temporary reprieve from removal, revocable at the will of the Executive Branch (and thus by a new President).

Nobody, including President Obama, disputes that only Congress could create a durable path to legalization or citizenship for undocumented immigrants.

Although cloaked in the language of the law, the simple truth of the matter was that the Republican governor of Texas and 26 states did not agree with the Democratic administration’s policy choices. And, politically, they had little use for President Obama. They sued in federal court to put the immigration plan on hold and ultimately ended one of the Obama administration’s signature immigration measures. Fortunately, the Supreme Court with its even split did not create precedent that would allow the states in the future to pursue litigation for partisan political ends.

In the end, what began as a political question will return to the political arena after the Supreme Court’s non-decision in United States v. Texas. The question of immigration reform will return to Congress.

But even if the Supreme Court had upheld the administration’s immigration programs, Congress would still have needed – as it does now -- to address immigration reform. Deferred action does not offer permanent relief for the millions of undocumented immigrants like that which would be provided by many comprehensive immigration reform proposals. Indeed, a future president – a President Donald Trump, for example – might try to deport any and all deferred action recipients.

As the outcome of United States v. Texas should make clear, congressional action is necessary to reform the immigration laws. As most knowledgeable observers agree, the mass deportation of the millions of undocumented immigrants who are parts of our communities simply is not feasible. Consequently, some kind of path to legalization of undocumented immigrants is needed. Most informed observers further agree that reform of the legal immigration provisions of the laws is needed. Last but not least, many Americans believe that we need better enforcement measures All of these aspects of immigration reform raise thorny political questions that require careful deliberation and rational discourse..

In the end, the nation needs to think about how we achieve meaningful and lasting immigration reform that works.

July 1, 2016

The Presumption Against Extraterritoriality Still Does Not Apply to Jurisdictional Statutes

The Presumption Against Extraterritoriality Still Does Not Apply to Jurisdictional Statutes

by William S. Dodge

[Cross-posted from Opinio Juris.]

In RJR Nabisco, Inc. v. European Community, the Supreme Court applied the presumption against extraterritoriality to determine the geographic scope of the Racketeer Influenced and Corrupt Organizations Act (RICO). RICO makes it illegal to use a pattern of racketeering activity in particular ways relating to enterprises. Racketeering activity consists of certain state and federal offenses generally known as predicates-money laundering, for example. RICO also creates a civil cause of action for treble damages for "[a]ny person injured in his business or property" by a RICO violation. In RJR, the Court unanimously held that two of RICO's substantive prohibitions apply extraterritorially to the same extent as their predicates. For example, since the federal money laundering statute, applies to offenses "outside the United States" if the defendant is a U.S. person, RICO also prohibits acquiring an interest in an enterprise or conducting its business through a pattern of money laundering outside the United States if the defendant is a U.S. person. But RJR also held, by a vote of 4-3, that RICO's civil cause of action requires injury to business or property in the United States. The Court thus preserved RICO as a law enforcement tool for the U.S. Government in a wide range of cases, including terrorism cases, while limiting private damages actions that might have caused friction with foreign nations.

In the process of describing its framework for applying the presumption against extraterritoriality, however, the Court said something that it almost certainly did not mean and that is likely to cause confusion among the lower courts unless nipped in the bud. Writing for a unanimous court, Justice Alito said that a court must ask whether the statute gives a clear indication that it applies extraterritorially "regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction." I have previously argued that the presumption against extraterritoriality does not apply to jurisdictional statutes, and in this post I explain why that is still true after RJR.

Although Article III of the U.S. Constitution sets the outer limits of subject matter jurisdiction for federal courts, Congress must confer jurisdiction upon the lower federal courts by statute. The U.S. Code contains a number of general subject matter jurisdiction statutes that apply in large numbers of cases. For criminal cases, 18 U.S.C. § 3231 gives district courts jurisdiction "of all offenses against the laws of the United States." On the civil side, the general federal question statute, 28 U.S.C. § 1331, gives district courts jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States," while the diversity statute, 28 U.S.C. § 1332, gives district courts jurisdiction "of all civil actions where the matter in controversy exceeds the sum or value of $75,000" between citizens of different states or between citizens and aliens (subject to a few exceptions). Some federal statutes have more specific grants of subject matter jurisdiction, like § 27 of the Securities Exchange Act, which gives the district courts jurisdiction over both civil and criminal actions "to enforce any liability or duty" created by the Act or its rules and regulations. None of these statutes contains the "clear, affirmative indication" of extraterritoriality that RJR says is necessary to rebut the presumption against extraterritoriality. Thus, if the presumption really applies to statutes that confer jurisdiction, those statutes might be interpreted not to apply extraterritorially. This might mean that federal courts would lack subject matter jurisdiction over criminal offenses committed abroad even if the substantive offense (like money laundering or RICO violations based on money laundering) clearly applies extraterritorially. It might similarly mean that civil suits arising abroad might have to be dismissed for lack of subject matter jurisdiction even if they are based on federal statutes that clearly apply extraterritoriality or are brought between diverse parties. Any sensible court would hesitate to reach such results. But how do we know that RJR does not command them.

First, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR applied the presumption to RICO's substantive provisions and not to the subject matter statute on which the suit was based. RICO lacks a general subject matter provision of its own, so jurisdiction in the civil suit brought by the European Community had to have been based on § 1331, the general federal question statute. The European Community lost its claim because the Supreme Court held that RICO's civil cause of action required injury to business or property in the United States, but it lost on the merits. The Supreme Court assumed (correctly) that the district court had subject matter jurisdiction under § 1331 to hear the claim in the first place.

Second, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR held that two of RICO's criminal provisions do apply extraterritorially to the same extent as the predicates on which they are based. This preserves the ability of the U.S. government, in the example that the Court itself gave, to use RICO to prosecute "a pattern of killings of Americans abroad in violation of § 2332(a)-a predicate that all agree applies extraterritorially." Yet the Court's holding would be for naught if 18 U.S.C. § 3231, the general subject matter provision for violations of federal criminal law, were limited to the United States.

Third, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR specifically discussed the possibility that the European Community might bring suit for violations of their own laws and "invoke federal diversity jurisdiction as a basis for proceeding in U.S. courts." This would be impossible if 28 U.S.C. § 1332, the federal diversity statute, were limited to cases arising in the United States.

Fourth, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because Morrison v. National Australia Bank, the decision that RJR elaborates and applies, similarly applied the presumption against extraterritoriality to a substantive provision of the Securities Exchange Act (§ 10(b)) and not to its jurisdictional provision (§ 27). Indeed, the Morrison Court went out of its way to say that "[t]he District Court had jurisdiction under [§ 27] to adjudicate the § 10(b) question."

So if RJR could not have meant that the presumption against extraterritorially applies to statutes granting subject matter jurisdiction, what did the Court mean when it said the presumption applies "regardless of whether the statute in question . . . merely confers jurisdiction"? The RJR Court was attempting to describe what it had done with the presumption in Kiobel v. Royal Dutch Petroleum Co., a case involving the Alien Tort Statute (ATS). In Kiobel, the Court held "that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption." Kiobel, however, did not apply the presumption against extraterritoriality to the ATS itself-a statute the Court characterized as "strictly jurisdictional"-but rather to the implied federal-common-law cause of action under the ATS. On page 9 of the slip opinion, RJR accurately describes Kiobel as a case where "we concluded that principles supporting the presumption should 'similarly constrain courts considering causes of action that may be brought under the ATS.'" And again on page 19, RJR correctly characterizes Kiobel as holding "that the presumption 'constrain[s] courts considering causes of action' under the ATS." Understanding Kiobel to have applied the presumption against extraterritoriality to the implied cause of action and not to the ATS itself also makes sense of Kiobel's statement that the presumption "is typically applied to discern whether an Act of Congress regulating conduct applies abroad," for causes of action regulate conduct in a way that purely jurisdictional statutes do not.

In short, RJR's statement that the presumption against extraterritoriality applies to statutes that "merely confer[] jurisdiction" must be read in context as describing the presumption's application to implied causes of action under statutes like the ATS and not to subject matter jurisdiction statutes themselves. Any other reading would be contrary to what the Supreme Court held with respect to subject matter jurisdiction in Morrison and, indeed, to what the Supreme Court did with respect to subject matter jurisdiction in RJR. It would also be contrary to common sense, for it would constrain the jurisdiction of the federal courts over civil cases and criminal prosecutions based on substantive statutes that clearly apply abroad. One can only hope that lower courts do not waste too much time and effort trying to figure this out.