Latest Scholarship

May 26, 2015

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

Cross-posted from Justia's Verdict.

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

1. The Speech Clause Juggernaut May Be Losing Steam

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 8, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 1, 2015

New Research from the Faculty at UC Davis School of Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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