Latest Scholarship

June 2, 2016

Debate on United States v. Texas for PublicSquare.net

I recently joined PublicSquare.net for a debate on its program Scholars Mate. The topic was U.S. v. Texas, a major Supreme Court case involving immigration and executive power.

Here is the video. Thanks to PublicSquare.net for the opportunity!

May 6, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 2

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"Corporate Governance and the Indian Private Equity Model" 
National Law School of India Review, Volume 27, Issue 1
UC Davis Legal Studies Research Paper No. 484

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

Private Equity (PE) firms have long invested in Western firms using a leveraged buyout (LBO) model, whereby they acquire a company that they can grow with the ultimate goal of either selling it to a strategic buyer or taking it public. Unable to undertake the traditional LBO model in India, PE investors in Indian firms have developed a new model. Under this Indian PE Model, PE firms typically acquire minority interests in controlled companies using a structure that is both hybridized from other Western investment models and customized for India's complex legal environment. As minority shareholders in controlled firms, PE investors in India have developed several strategies to address their governance concerns. In particular, PE investors in India have focused on solutions to address local problems through the use of agreements that govern (i) the structuring of minority investments, (ii) investor control rights, and (iii) exit strategies. Nevertheless, recent governance and regulatory difficulties highlight the continuing uncertainty surrounding the Indian PE model.

"National Data Governance in a Global Economy" 
Columbia School of International and Public Affairs Issues Brief, April 2016
UC Davis Legal Studies Research Paper No. 495

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

Global data flows are the lifeblood of the global economy today and of the technologies of the future. Yet, the regulation of how data is to be handled remains largely the province of national laws. How we resolve the dilemmas of global flows within a nation-state structure will impact the digital economy, free expression, privacy, security, consumer protection, and taxation. Just as we once built an architecture for cross-border flow of goods, we need to build an architecture for cross-border flow of information.

"The Charming Betsy and the Paquete Habana" 
UC Davis Legal Studies Research Paper No. 485

WILLIAM S. DODGE, University of California, Davis - School of Law
Email: wsdodge@ucdavis.edu

This chapter for the book "Landmark Cases in Public International Law" discusses two famous U.S. Supreme Court decisions - The Charming Betsy (1804) and The Paquete Habana (1900). Although written nearly one hundred years apart, each decision appears to stand for similar propositions - that international law has an important place in the law of the United States, but that U.S. domestic law should prevail in the event of conflict. What often goes unnoticed is that the Supreme Court decided these cases against the backdrop of very different understandings about international law and its relationship to U.S. domestic law.

In addition to discussing the background and significance of each case, this chapter describes three shifts in U.S. thinking about customary international law during the nineteenth century. First, the theoretical foundations of customary international law shifted away from natural law towards positivism. Second, the consent requirement for making customary international law shifted from the individual consent of each state to the consent of states generally. And third, the U.S. understanding of the relationship between international law and domestic law shifted away from monism towards dualism - away from an understanding that international law was part of U.S. law unless displaced, towards an understanding that international law was not part of U.S. law unless adopted. The Charming Betsy and The Paquete Habana are landmark cases not because they changed the course of international law in the United States but because they reveal changes in the landscape.

"Probate Lending" 
Yale Law Journal, Vol. 126, 2016
UC Davis Legal Studies Research Paper No. 492

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

One of the most controversial trends in American civil justice is litigation lending: corporations paying plaintiffs a lump sum in return for a stake in a pending lawsuit. Although causes of action were once inalienable, many jurisdictions have abandoned this bright-line prohibition, opening the door for businesses to invest in other parties' claims. Although some courts, lawmakers, and scholars applaud litigation lenders for helping wronged individuals obtain relief, others accuse them of exploiting low-income plaintiffs and increasing court congestion.

This Article reveals that a similar phenomenon has quietly emerged in the probate system. Recently, companies have started to make "probate loans": advancing funds to heirs or beneficiaries to be repaid from their interest in a court-supervised estate. The Article sheds light on this shadowy practice by empirically analyzing 594 probate administrations from a major California county. It finds that probate lending is a lucrative business. Nevertheless, it also concludes that some of the strongest rationales for banning the sale of causes of action - concerns about abusive transactions and the corrosive effect of outsiders on judicial processes - apply to transfers of inheritance rights. The Article thus suggests several ways to regulate this nascent industry.

"The Social Transmission of Racism" 
Tulsa Law Review, Vol. 51, 2016
UC Davis Legal Studies Research Paper No. 489

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

This essay reviews two books, Robert Wald Sussman, The Myth of Race: The Troubling Persistence of an Unscientific Idea (Harvard University Press 2014) and Osagie K. Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (Stanford University Press 2014). Sussman is an anthropologist who brings his expertise to bear in tracing scientific racism through history. Obasogie is a legal scholar and sociologist who uses both qualitative data gathered through interviews with blind and sighted people and Critical Race Theory to explore racialization's dependence on the idea that race is visually obvious. Each book examines an idea that has sustained racism despite social, political and geographic change. The essay assesses each account and links the authors' analyses to judicial and legislative framings of reproductive rights and to postmodernist scholarship on race, gender and the human body.

"Computer Source Code: A Source of the Growing Controversy Over the Reliability of Automated Forensic Techniques" 
DePaul Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 487

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

The article deals with two legal issues posed by the growing trend in the United States to automate forensic analyses.

Since World War II, we have had alarming insights into the unreliability of both eyewitness testimony and confession evidence. Those insights have prompted the criminal justice system to place greater reliance on forensic evidence. In one Rand study, the researchers found that expert testimony was presented at 86% of the trials examined. This shift to greater use of expert testimony has placed growing demands on crime laboratories. For example, the backlog of unanalyzed DNA samples has become such an acute problem that Congress was impelled to enact the DNA Backlog Elimination Act to provide funding to reduce the backlog of untested rape kits.

In both the public and private sectors, the typical response to the development of a backlog is technological automation. That has certainly held true for forensic analysis. There is now widespread automation in such areas as fingerprint examination, breath testing, and DNA analysis. The argument runs that automation holds the promise of both enhancing efficiency and improving the accuracy of the analyses proffered in court.

That promise turns on the accuracy of the source code controlling the software governing the automated techniques. The source code embeds the instructions determining which tasks the program performs, how the program performs them, and the order in which it performs the tasks. The validity of a program's source code is the most fundamental guarantee of a software program's reliability. Defense counsel have sometimes challenged the software for automated forensic techniques. Early in this century, the defense counsel attacked the software controlling automated infrared breath testing devices. Today they are challenging the software for the TrueAllele program analyzing mixed DNA samples. Those waves of cases have posed two issues: (1) whether the prosecution can lay a sufficient foundation for evidence based on an automated technique without presenting testimony about the computer source code; and (2) whether the defense has any discovery right to access to the code. Almost all the courts have answered the first question in the affirmative and the second question in the negative. In responding to the second question, the courts have reasoned that the existence of validation studies for the technique eliminates any need to scrutinize the source code and that in any event, manufacturers have an evidentiary privilege protecting the code as a trade secret. The purpose of this short article is to critically evaluate the judicial response to both questions.

On the one hand, the article argues that the courts have correctly answered the first question. More specifically, the prosecution may lay an adequate foundation by presenting testimony describing validation studies for the automated technique even if the testimony does not touch on the source code. On the other hand, the article contends that in some cases, the courts ought to accord the defense a pretrial discovery limit. The article explains the limited utility of validation studies and notes that the evidentiary privilege for trade secrets is a qualified one that can be surmounted when the party seeking discovery has a significant need for the information. The article proposes a procedure that judges can employ to resolve the tension between the defendant's need for access to the source code and the manufacturer's legitimate interest in safeguarding its valuable proprietary information.

"Beyond Surveillance: Data Control and Body Cameras" 
__ Surveillance & Society __ (2016) Forthcoming
UC Davis Legal Studies Research Paper No. 494

ELIZABETH E. JOH, University of California, Davis - School of Law
Email: eejoh@ucdavis.edu

Body cameras collect video data - lots of it - and thus many have raised questions about increased government surveillance. But if understood primarily as data collection, surveillance represents only one concern. In our big data age, "seeing, monitoring, and recording the digital footprints is quite different from sharing, releasing, revealing or publicizing the data." Body camera policies must address not only concerns about surveillance, but also data control.

"Some Thoughts on the Future of Legal Education: Why Diversity and Student Wellness Should Matter in a Time of 'Crisis'" 
Buffalo Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 488

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

Some vocal critics have loudly proclaimed that the challenges of law school economic have reached "crisis" proportions. They point to the well-known facts about recent developments in the market for law schools. Law schools have experienced a precipitous drop in applications. The global recession decimated the legal job market. To make matters worse, rising tuition has resulted in increasing debt loads for law graduates.

In light of the changes in the legal marketplace, stabilization of the budgetary picture is currently the first priority of virtually every American law school. Faculty members have been let go. Staffs reduced. Enrollment of students - and the collection of tuition revenues - have critical budgetary consequences.

Linked to the economic "crisis" facing law schools and students was deep concern with each school's relative placement in the much-watched U.S. News and World Report law school rankings. These rankings, among other things, affect admissions and enrollment, and thus budgetary bottom lines for law schools.

Much less publicized concerns with legal education involve non-financial issues. The lack of racial and other diversity of students attending law school, and ultimately entering the legal profession, and faculty, has long been a problem. In addition, today's students demand a more humane legal education and are asking for additional academic support, career and mental health counseling, experiential learning opportunities, and more. The costs of the additional services and programs have further added to budgetary pressures on law schools.

This Essay contends that law schools should strive to address the noneconomic as well as the economic problems with modern legal education. In a time of considerable change, this is a most opportune time to consider and implement deep and enduring improvements that benefit students as well as the entire legal profession.

"Welfare Queens and White Trash" 
25 Southern California Interdisciplinary Law Journal 289 (2016)
UC Davis Legal Studies Research Paper No. 486

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu

The "welfare queen" is widely recognized as a racialized construct deployed by politicians to undermine support for public benefits and the wider social safety net. Less often recognized or discussed is the flip side of the welfare queen's conflation of blackness with dependency and poverty: the conflation of whiteness with self-sufficiency, autonomy, and affluence. The welfare queen trope, along with media and scholarly depictions of socioeconomic disadvantage as a nonwhite phenomenon, deflects attention from white poverty. Yet data indicate that a majority of poor people in the United States self-identify as white.

This essay, written for the "Reframing the Welfare Queen" symposium, (re)surfaces the existence of white poverty and ponders its (in)visibility, meaning, and significance in relation to the welfare queen construct. Among other things, Pruitt suggests that the welfare queen stigmatype is not just bad for blacks, it is bad for poor whites. First, it obscures white poverty, rendering poor whites and their plight invisible. Second, to the extent we are aware of white poverty, the widespread conflation of whiteness with affluence suggests that poor whites have only themselves to blame, given the benefits widely associated with white-skin privilege.

Given the welfare queen's potency as a racialized construct, we might assume that greater awareness of white poverty would enhance public support for safety net programs because middle and upper income whites would (so the story goes) want to ameliorate white poverty, even if racial animus discourages their support for poor blacks. But Pruitt questions the soundness of this line of reasoning, which discounts the existence and potency of intraracial discrimination in assuming that society feels greater empathy with or concern for the fate of poor whites than for poor nonwhites. In fact, we have several reasons - including empirical studies - to believe that such a well of empathy is missing. A further reason for skepticism is found in a second racialized construct explored in this article: white trash.

"Tax Cannibalization and Fiscal Federalism in the United States" 
Northwestern University Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 491
UC Berkeley Public Law Research Paper No. 2750933

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

The current structure of U.S. federal tax law incentivizes state governments to adopt tax policies that inflict costs on the federal government, at the expense of national welfare. We label this the "tax cannibalization problem."

This article introduces the tax cannibalization problem to the law and policy literatures for the first time. This article also explains how U.S. federal tax law might be restructured so as to alleviate the tax cannibalization problem - to counteract the perverse incentives currently leading U.S. state governments to design their tax systems so as to, in effect, wastefully devour federal tax revenues.

"Stitches for Snitches: Lawyers as Whistleblowers" 
UC Davis Law Review, Forthcoming (2017)
UC Davis Legal Studies Research Paper No. 493

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

This Article challenges the prevailing wisdom that ethics rules forbid lawyers from blowing the whistle on a client's illegal conduct. While a lawyer is not free to disclose confidential information in every jurisdiction for every legal violation, the ethics rules in all jurisdictions permit disclosure of confidential information pertaining to a client's illegal activities under certain conditions. Proving the lie of the prevailing wisdom, this Article examines a high profile case in the state of New York that ruled a lawyer whistleblower violated the state's ethics rules by revealing confidential information to stop his employer-client from engaging in a tax fraud of epic proportions. The Article argues that the court undertook a deficient analysis of New York ethics rules pertaining to permissive disclosure of confidential client information. Even if the whistleblower had violated his ethical obligations, the New York False Claims Act (the statute under which he brought his action) expressly protects disclosure of confidential employer information made in furtherance of the statute. In addition to New York's statutory shield, federal courts across the country have developed a public policy exception safeguarding whistleblowers for disclosing confidential information that detects and exposes an employer's illegal conduct.

While challenging the previously unchallenged criticism of lawyer whistleblowers, this Article acknowledges the intrinsic appeal of that position. The idea of a lawyer revealing a client's transgressions - particularly for monetary awards paid under various federal and state whistleblower programs - seems unsavory and a threat to the attorney-client relationship. Nonetheless, lawyers have always had the discretion to disclose confidential information to prevent a client from committing a crime or fraud. And although the addition of financial incentives complicates the analysis, modern ethics rules extend to lawyers considerable discretion in revealing confidential client information, even if disclosure makes a lawyer eligible for financial awards.

May 6, 2016

Justice Stevens Discusses Scholarship by Professor Chin

In a recent speech, retired U.S. Supreme Court Justice John Paul Stevens discussed Professor Gabriel "Jack" Chin's paper Effective Assistance of Counsel and the Consequences of Guilty Pleas

Justice Stevens relied on the paper in his majority opinion in Padilla v. Kentucky, 559 U.S. 356 (2010), which held that criminal defense attorneys were required to advise clients about the possibility of deportation.  As Justice Stevens noted, the Court also relied on Professor Chin's work in Chaidez v. United States, 133 S. Ct. 1103 (2013), holding that Padilla would not be retroactively applied to cases which were already final when it was decided.

May 4, 2016

Zubik v. Burwell: Women and Religion in the Market

Cross-posted from JURIST.

The US Supreme Court heard oral arguments in Zubik v. Burwell on March 23, 2016, six years to the day the Affordable Care Act (ACA) became law. The petitioners, a group of religious organizations, have challenged the ACA's contraceptive coverage requirement. The challenge is a free exercise claim under the Religious Freedom Restoration Act (RFRA) [PDF], a federal statute. The court has now heard four challenges to the ACA.

The contraceptive coverage requirement is part of a broader provision that requires coverage for preventive health care without cost-sharing. This provision serves the ACA goals of improving health care access and reducing health care disparities among populations. Even small co-pays create barriers to health care. The ACA emphasizes the importance of preventive health care by removing that barrier.

Cost-sharing mechanisms like co-pays reflect the fact that health care services are delivered in a commercial market. The ACA coverage requirement applies to FDA-approved contraceptives. Prices for drugs and devices in the US are among the highest in the world. Contraceptives are distributed within that market. Recent stories about the role of profit-motive in pharmaceutical pricing highlight new cancer drugs and Hepatitis C drugs that cost several hundred thousand dollars a year. Plain old oral contraception, the most widely used contraceptive, can cost close to $1,000 per year for those without insurance coverage. Intrauterine devices, a type of long-acting reversible contraception, typically cost $500 to $1,000. Those amounts are less than 1 percent of the highlighted examples, but they are a great deal more than many can afford. Because most FDA-approved methods are available on a prescription-only basis, obtaining contraception also requires the time and cost of visiting a doctor. Oregon and California have enacted law making some contraceptives (the pill, the ring and the patch) available over-the-counter, with a pharmacist prescription. Those laws make the doctor's visit, and the accompanying costs, unnecessary for most. People without coverage, however, will still face out-of-pocket costs for the contraceptives.

The contraceptive coverage requirement applies to employers who provide health insurance as a benefit. The Zubik petitioners are religious organizations who hire employees and run colleges. Their employees and students rely on petitioners for health insurance access, but do not all share the petitioners' religious objections to contraceptive use. The ACA provides accommodation for religious employers, which removes petitioners from the responsibility of paying for coverage and yet makes coverage available to employees and students. Petitioners, however, claim that submitting the one-page form to obtain the accommodation makes them complicit in providing contraceptives.

The arguments were fascinating. You can listen to or read [PDF] them. RFRA requires that petitioners show the contraceptive coverage requirement imposes a substantial burden on free exercise of religion. If petitioners can do that, the government must justify the burden by showing that the contraceptive coverage requirement is based on a compelling state interest and that there is no less restrictive means of achieving that interest. The justices and lawyers spent much of oral argument addressing the substantial burden requirement. In an exchange with Justice Kagan, Paul Clement, representing petitioners, distinguished between an authorization form and an opt-out form. Clement seemed to suggest that an opt-out form would not make petitioners complicit, while an authorization form would, and thus, substantially burden free exercise. Much of the substantial burden argument turned into a battle of analogies. Noel Francisco, also representing petitioners, characterized the coverage requirement as "seizing control." The most bandied-about analogy was "hijacking"-as in, by requiring contraceptive coverage, the government is hijacking the religious employers' benefit plans. Chief Justice Roberts fully embraced the hijacking analogy. In the meantime, Justices Sotomayor and Kagan challenged Clement on petitioners' analogy to military objectors during war. Clement agreed that laws penalizing conscientious objectors substantially burdened objectors' free exercise, but asserted the objectors had to affirmatively object, while petitioners should not have to in order to obtain accommodation.

Donald Verrilli represented the US government in arguments. (Because he is the US Solicitor General, the justices call him "General Verrilli.") He argued that the procedure for obtaining an accommodation would not substantially burden petitioners' free exercise of religion. He and Justice Alito spent some time in the weeds about the fact that employers with self-insured plans must submit not one, but two pieces of paper. The existing accommodation exempts religious employers from paying for contraceptives regardless of whether the plan is fully insured or self-insured. So the only difference is, in fact, the extra piece of paper.

Verrilli marshaled his time to address petitioners' proposed alternatives to the existing accommodation. Petitioners' briefs proposed that rather than obtaining contraceptive coverage through employer-sponsored or student insurance, employees and students could use Medicare, Medicaid, Title X, contraception-only insurance policies or individual policies purchased in the insurance marketplaces. Some of these proposals do not exist. For example, insurers do not offer contraception-only policies. Even if available, a separate policy might very well offer a different provider network than a petitioner's plan. All of the proposals, including individual policies, would raise barriers to access and undermine the purpose of requiring preventive care coverage without cost-sharing. None, as Verrilli pointed out, are available under existing law. Access to Medicare, Medicaid, Title X and the marketplaces would require significant amendment of eligibility laws.

Near the end of Verrilli's allotted time for argument, Sotomayor returned to the conscientious objector analogy. She distinguished conscientious objectors in wartime from the Zubik petitioners' challenge to the accommodation. In Sotomayor's view, conscientious objectors do not trigger regulatory power over third parties, but the effects of Zubik petitioners' request would rebound on petitioners' employees and students. Sotomayor's distinction points to the origins of the RFRA. Congress enacted RFRA in response to a 1989 Supreme Court decision called Employment Division v. Smith. The late Justice Scalia wrote the majority opinion, in which the court stated that the Constitution's Free Exercise Clause did not excuse an individual from complying with a generally applicable law. In other words, the Constitution does not require accommodation for those whose religious beliefs place them in conflict with the law. Scalia's opinion listed examples-laws requiring military service, payment of taxes and vaccination. RFRA passed with bi-partisan support. Many supporters worried that the Supreme Court had peeled back protection for members of minority religions whose beliefs are more likely to differ from majoritarian norms underlying law. In Smith, for example, the court rejected free exercise claims by two Native Americans who were fired and denied unemployment benefits after using peyote in a religious ceremony. Before Smith, the court had recognized free exercise claims by a member of the Seventh-day Adventist Church who was fired for refusing to work on Saturday, the Adventist Sabbath. In those two cases, exempting the religious claimants from state unemployment compensation laws did not interfere with others' rights. Exemption may have inconvenienced the state unemployment office, but it did not produce interference with third party rights.

With Scalia's death, it seems very likely the eight justices may split. Questions and statements in oral argument, as well as prior votes, indicate that Roberts, Alito, Thomas and perhaps Kennedy will hold that the existing accommodation violates petitioners' statutory rights under RFRA. Ginsburg, Breyer, Kagan and Sotomayor, on the other hand, seem likely to find no violation.

In the meantime, the court has taken an unusual step. On March 29, the court issued an order [PDF] directing the parties to file additional briefs. The briefs are to address "whether and how contraceptive coverage may be obtained by petitioners' employees through petitioners' insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees." The Order includes an example for the parties to consider. What if petitioners contracted with an insurer and informed the insurer that they did not want to include contraceptive coverage and the insurer notified employees that it would "provide cost-free contraceptive coverage and that such coverage is not paid for by petitioners and is not provided through petitioners' health plan." The example echoes a hypothetical that Clement and Francisco used in arguments. They posited an "uber-insurance policy" that provides contraceptive coverage to all women in the US, as a counterpoint to the alleged hijacked plans offered by petitioners to employees and students. In essence, they described a private single-payer plan for contraception. Both the court's example and the uber-policy scenario rely on the fictional existence of contraceptive-only plans. Even if petitioners and five justices will this type of plan into existence, it would require significant government intervention in the market, as well as two forms of insurance and the possibility of two different provider networks for petitioners' employees and students.

The order and the question it poses signals what the vote will hinge on. More specifically, it indicates Kennedy's attentiveness to the complicity concerns and the fact that RFRA does not permit religious claimants to hijack the government's administrative and regulatory systems to implement an accommodation. The court may split along other lines, as well. Ginsburg asked whether religious organizations should necessarily receive the same protection under RFRA as a church. Kennedy asked whether a church organization should be treated the same as a university. As noted, petitioners consist of both church-affiliated organizations and religious universities. The questions suggest that universities may be less likely to receive accommodations that impose burdens on third parties. On the other hand, Ginsburg and Kennedy's questions may just have been aimed at Francisco's sweeping assertions about the RFRA's scope of protection for free exercise.

What should be notable is that because the parties to the case are religious employers and the federal government, people who use contraceptives-mostly women, are positioned as third parties. Yet, the so-called third parties have a significant stake in this case: health, autonomy and equality. When you set aside the analogies and hypotheticals, the case positions women between the privatization of health care and the religious beliefs of others.

April 29, 2016

Professor Chin to Speak at U.S. Capitol Historical Society Symposium

The U.S. Capitol Historical Society will hold its annual spring symposium, Congress and a Nation of Immigrants, 1790-1990: From the First Naturalization Act to the Simpson-Mazzoli Act, on May 5 and 6.

Professor Gabriel "Jack" Chin is among the symposium speakers who will tackle a range of topics that examine Congress and immigration law through various lenses, including race, quotas, politics, and popular culture. As speakers consider immigration law and related issues, they will detail and challenge popular perceptions of racial, ethnic, and political differences in American society from 1789 and the Alien Acts through the Simpson-Mazzoli Act in 1986.

Professor Chin will speak in in room 325 of the Russell Senate Office Building on Friday, May 6 from 10:55am to 11:40am. He will discuss the 1965 Immigration Act in a talk titled, "Was the Diversification of America an Unintended Consequence?"

This event is free and open to the public. For more information, visit http://uschs.org/news-releases/symposium-focuses-immigration-legislation/.

April 27, 2016

Would JASTA Violate International Law?

Cross-posted from Just Security.

Writing in The New York Times last Friday, Curt Bradley and Jack Goldsmith argued that the Justice Against State Sponsors of Terrorism Act (JASTA) would "violate a core principle of international law," the principle of foreign sovereign immunity. At Lawfare, former State Department Legal Adviser John Bellinger seconded their assertion. Earlier in the week, White House Press Secretary Josh Earnest expressed similar concerns. (For a good primer on JASTA and its background, see Steve Vladeck's post here.) The amount of legal analysis one can fit into an op-ed is necessarily limited, and it would be welcome to see Curt, Jack, John, or others flesh out the argument. But, in my view, there are serious problems with the assertion that JASTA would violate customary international law governing sovereign immunity, problems that raise more general questions of how one identifies rules of customary international law.

Curt and Jack summarize their international law argument this way: 

A nation's immunity from lawsuits in the courts of another nation is a fundamental tenet of international law. This tenet is based on the idea that equal sovereigns should not use their courts to sit in judgment of one another. Many nations have tacitly agreed to limit immunity in specified contexts, such as when they engage in certain commercial activities. But apart from those exceptions (or where a binding treaty or Security Council resolution otherwise dictates), international law continues to guarantee immunity, even for alleged egregious crimes.

The first question to ask is where this fundamental tenet of international law comes from. I believe it is common ground that - as the Restatement (Third) of Foreign Relations Law puts it - "[c]ustomary international law results from a general and consistent practice of states followed by them from a sense of legal obligation." If one looks at state practice with respect to foreign sovereign immunity, one finds some situations in which states are consistently held to be immune from the jurisdiction of the courts of other states, other situations in which states are consistently held not to be immune, other situations in which the practice is mixed, and still other situations in which there is no practice at all. How should one make sense of this practice?

Curt and Jack's approach with respect to foreign sovereign immunity seems to be to infer a general rule of immunity based on state practice granting immunity and to treat the state practice denying immunity as establishing exceptions to the general rule. Where the practice is mixed or non-existent, the general rule of immunity would govern because there is not a "general and consistent practice of states" sufficient to create an exception. Of course, this is not the only possible way to read the existing state practice. One could instead infer specific rules of immunity only in those situations where there is a general and consistent practice of granting immunity. Under this approach, where the practice is mixed or non-existent, a general rule of non-immunity would govern. As Curt has recently written on page 34 in his excellent contribution to the book Custom's Future, one must "necessarily make choices about how to describe [state practice], which baselines to apply in evaluating it, and whether or when to extend or analogize it to new situations." I agree. My point is simply that the choices Curt and Jack have made in their analysis of sovereign immunity are choices - and they need to be defended.

One way to defend their approach would be to invoke the International Court of Justice's 2012 decision in the Jurisdictional Immunities Case (Germany v. Italy), which took a similar approach to questions of sovereign immunity. But the ICJ took this approach because the state parties to the dispute both agreed on it. See paragraph 61 ("Both Parties agree that States are generally entitled to immunity in respect of acta jure imperii."). In light of the parties' agreement, the ICJ was certainly justified in starting with a general rule of immunity and then looking for state practice sufficient to support exceptions. But as Curt again has reminded us in his contribution to Custom's Future, "ICJ decisions are technically binding only on the parties and thus should not automatically be treated as the last word by the international community on the content of [customary international law]" (p. 59).

Even if one adopts Curt and Jack's basic approach to sovereign immunity, there remains the question of how broadly or narrowly to read the state practice creating exceptions to the general rule. There is lots of state practice supporting a territorial tort exception to sovereign immunity - that is, an exception for torts that occur in the nation that would exercise jurisdiction over the foreign state. (See Jurisdictional Immunities paragraphs 62-79.) This is what allows Americans injured in traffic accidents by a foreign government employee to sue the foreign state for damages. One might argue that this state practice should be read narrowly to apply only in these sorts of situations. But states that have codified the exception have done so in general terms applicable to any tort.

The US Foreign Sovereign Immunities Act (FSIA) also codifies the territorial tort exception in general terms. (See 28 U.S.C. § 1605(a)(5).) But US courts have interpreted it to require that the "entire tort" occurs within the United States. (See the Second Circuit Court of Appeals 2013 decision from In re Terrorist Attacks on September 11, 2001.) It is this limitation that JASTA would remove. JASTA would still require that there be "physical injury or death, or damage to or loss of property, occurring in the United States," but it would make clear that the territorial tort exception applies "regardless of where the underlying tortious act or omission occurs."

Customary international law does not seem to require the "entire tort" limitation. Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Properties would apply the territorial tort exception if the act or omission occurred "in whole or in part" in the territory of the state exercising jurisdiction. Most nations that have codified the exception appear to require some act or omission in their territories, but it is not clear that these nations have done so from a sense of international legal obligation rather than from comity. Even if customary international law were properly read to preclude a nation from applying the territorial tort exception solely on the basis of death and damage within its territory, the application of JASTA to the 9/11 cases would still not violate international law, since the 9/11 attacks clearly involved tortious acts in the United States.

Another, more controversial, path would be to expand the FSIA's terrorism exception, so that it covers state-sponsored terrorism even when the foreign state has not been designated by the State Department as a state-sponsor of terrorism, as is currently required under the FSIA. JASTA would not do this, but Curt and Jack discuss it at some length, so it is worth considering. They assert that the current exception "is almost certainly contrary to international law." If this is true of the existing exception, then it would also be true of an expanded exception.

But I am not so sure that the terrorism exception violates customary international law. First, the United States is not alone in having adopted such an exception - Canada has done so too in Section 6.1 of its State Immunity Act. Second, to my knowledge, these exceptions have not provoked the sorts of widespread protests one might expect from other nations in the event of a clear violation of customary international law. Curt and Jack anticipate this point, explaining that "[t]he controversy has been muted, however, because the exception applies to only a few nations designated as bad actors by the executive branch." This is true, but explaining away the absence of protests is not the same thing as having such protests as evidence of state practice. Third, Curt's and Jack's argument here necessarily depends on the choices they made at the outset about how to organize existing state practice. This is a situation in which the state practice is mixed - two states have such exceptions but most do not. Whether customary international law requires immunity for state-sponsored terrorism depends on whether one begins from a baseline of immunity (as Curt and Jack do) or from a baseline of non-immunity. To repeat what I said above, this is a choice and must be defended.

Of course, Curt and Jack are trying to make a policy argument based on reciprocity too. They write: "If the United States reduces the immunity it accords to other nations, it exposes itself to an equivalent reduction in its own immunity abroad." But their reciprocity argument against JASTA depends on several propositions. First, it depends on the proposition that other states would view the immunity that the United States currently extends (and that JASTA would take away) as required by international law. If not, then they are already free to reduce the immunity they extend the United States, whether JASTA passes or not. Second, it depends on the proposition that other countries would read JASTA broadly to authorize exceptions to sovereign immunity in non-identical situations. Curt and Jack write: "It might appear that the United States has little to fear in lawsuits abroad for acts of terrorism akin to 9/11. But terrorism is often in the eye of the beholder, and reciprocity need not be precise." A broad reading of JASTA is possible, but certainly not inevitable, and the United States would have strong arguments that its practice should be read more narrowly. Finally, Curt and Jack's reciprocity argument depends on the proposition that international law influences the behavior of other states. I believe that to be true, but Jack has co-written an entire book disputing the proposition. See The Limits of International Law.

In the end, I am not certain whether Congress should pass JASTA. Much depends on how one weighs the benefits of providing legal redress for victims of terrorism against the impact on relations with countries like Saudi Arabia that currently cooperate with US counterterrorism efforts. But as a legal matter, the argument that JASTA would violate international law is far from clear.

April 22, 2016

Legal Skills Prof Blog Highlights "Thoughts on the Future of Legal Education" Essay

Thanks to Legal Skills Prof Blog for highlighting my paper "Some Thoughts on the Future of Legal Education: Why Diversity and Student Wellness Should Matter in a Time of 'Crisis'"

Abstract:     

"Some vocal critics have loudly proclaimed that the challenges of law school economic have reached "crisis" proportions. They point to the well-known facts about recent developments in the market for law schools. Law schools have experienced a precipitous drop in applications. The global recession decimated the legal job market. To make matters worse, rising tuition has resulted in increasing debt loads for law graduates.

In light of the changes in the legal marketplace, stabilization of the budgetary picture is currently the first priority of virtually every American law school. Faculty members have been let go. Staffs reduced. Enrollment of students - and the collection of tuition revenues - have critical budgetary consequences.

Linked to the economic "crisis" facing law schools and students was deep concern with each school's relative placement in the much-watched U.S. News and World Report law school rankings. These rankings, among other things, affect admissions and enrollment, and thus budgetary bottom lines for law schools.

Much less publicized concerns with legal education involve non-financial issues. The lack of racial and other diversity of students attending law school, and ultimately entering the legal profession, and faculty, has long been a problem. In addition, today's students demand a more humane legal education and are asking for additional academic support, career and mental health counseling, experiential learning opportunities, and more. The costs of the additional services and programs have further added to budgetary pressures on law schools.

This Essay contends that law schools should strive to address the noneconomic as well as the economic problems with modern legal education. In a time of considerable change, this is a most opportune time to consider and implement deep and enduring improvements that benefit students as well as the entire legal profession."

April 18, 2016

Analysis of Oral Argument in United States v. Texas

Cross-posted from Immigration Prof Blog.

Here is the transcript to the oral argument earlier today in United States v. Texas, which raises the question of the lawfulness of the Obama administration's expanded deferred action program for undocumented parents of U.S. citizens and lawful permanent residents (known as DAPA) announced in November 2015.

Lyle Denniston analyzed the argument on SCOTUSBlog and reads the tea leaves as indicating a possible win for the Obama administration. 

The line-up of the advocates can be found here.

From reading the transcript, here are my thoughts on this much-anticipated argument:  

Standing under Article III of the U.S. Constitution is a threshold question.  As should have been the case, it was the subject of considerable questioning during the argument.  In the end, the Justices appeared to be divided on how a majority would ultimately come down on the question.  

Solicitor General for the United States Donald Verrilli was the first to argue.  The argument seemed to go generally as expected, with no big surprises.  Standing figured prominently in the argument from the outset. Apparently having standing on his mind, Chief Justice Roberts redirected Verilli to address the issue after Justice Ginsburg almost immediately after the argument began inquired about the merits. 

Although Verilli did get to briefly discuss the merits of the deferred action "guidance," the bulk of the questioning was on standing.  Verilli argued that Texas and the states lacked standing under Article III because (1) the alleged injury of increased costs of issuing driver's licenses to deferred action recipients was not redressable by the relief being sought; and (2) there was no concrete particularized injury to the states resulting from the administration's expanded deferred action program.

Chief Justice Roberts, who dissented in Massachusetts v. EPA, asked Verilli whether the injury in this case was "any more indirect and speculative" (Transcript p. 18, lines 3-5) from that one.  In that case, a majority held that Massachusetts had standing to challenge a failure of the Environmental Protection Agency to regulate greenhouse gas emissions. 

Justice Alito asked who would have standing to challenge a President's policy decision to have "open borders."   

Justice Breyer pushed the limits of the states' theory of standing by asking if Rhode Island would have standing to challenge a federal statute requiring that the states give a driver's license to every member of the armed forces and the federal government transferred 250,000 soldiers to Rhode Island. Justice Sotomayor also noted the potential expansiveness of a finding that Texas had standing and challenges to federal laws and regulations.

President/General Counsel of the Mexican American Legal Defense and Education Fund Thomas Saenz, next argued for three parent intervenors who would benefit from the expanded deferred action program. Although clearly he was primed on the merits, the Justices asked him about standing and Saenz responded credibly.  In arguing that the states lacked standing, Saenz  emphasized that"this is a political dispute. [The states challenging the Administration] do not agree with the policy adopted by the Administration . . . . " Transcript p. 39, lines 13-14. Along these lines, Justice Breyer later in the argument acknowledged that the case had "tremendous political valence." Transcript p. 61, line 5.

Chief Justice Roberts tried unsuccessfully to get Saenz to concede that a Texas policy denying deferred action recipients from driver's license eligibility would be unlawful. In response to a question from Justice Sotomayor, Saenz later noted that not every state makes deferred action recipients eligible for licenses. 

Texas Solicitor General Scott Keller (formerly Chief Counsel to Presidential candidate Ted Cruz), for the 26 states challenging the expanded deferred action programs.  He was asked more about the merits than the standing question. 

During Keller's argument, several Justices pressed an apparent compromise solution.  It involved the language in the administration's guidance affording deferred action recipients "lawful presence" and seems to have muddied the waters.  Removal of that language might be a possible way to defuse the dispute. Verilli initially raised this possibility.  When forced to address whether removal of the "lawful presence" language would be sufficient to address the issues raised by the states, Keller quoted language from the guidance: "Deferred action means that for a specified period of time, an individual is permitted to be lawfully present in the United States." (emphasis added).  Keller (and later Erin Murphy) stated that removal of the language would not be sufficient but it was unclear to me whether any of the justices agreed.

Another issue came up in discussion of the merits.  Under another regulation in place for decades, deferred action recipients and receive work authorization. That regulation was not challenged in this litigation.  Justice Kennedy intimated that, if that was the true problem in this case, it might would have been proper to challenge the regulation under the Administrative Procedure Act.

Erin Murphy, partner at the law firm Bancroft LLP, argued last on behalf of the U.S. House of Representatives as amicus supporting the states' challenge to the President's immigration guidance.  From a paper transcript, she appeared confident and pushed the envelope but did not have quite the grasp of the immigration laws of her colleagues.  Murphy, for example, at the outset stated that the administration adopted immigration reform that Congress considered and did not enact.  Justice Sotomayor quickly corrected Murphy and pointed out that the Obama immigration program in no way created a "pathway to citizenship" like that found in many comprehensive immigration reform proposals.

Four final points:

1.  Justice Kennedy viewed the case as one about the limits of discretion and suggested that the expanded deferred action programs constituted a legislative act by the President, which is "just upside down."  It was not clear to me of his take on the standing question.

2.  There was no questions from the justices on the "Take Care" argument based on Article II, section 3.  The Court had ordered the parties to brief the issue. Nor did any of the advocates raise the issue.

3.  Justice Thomas was silent at the oral argument.

4.  The argument did not highlight that the expanded deferred action programs were (1) temporary in nature and did not afford undocumented immigrants any kind of permanent relief; and (2) could be changed by a new President and/or Congress.

As we learned from the Affordable Care Act case, it is hazardous to predict how the Supreme Court will rule on a case based on the oral arguments.   After that argument, few commentators thought that Verilli and the Obama and administration would prevail; but they did.  Here, although the outcome is hard to predict with certainty, it appears that (1) standing in this case is a central issue to the justices: (2) the "Take Care" argument is not; and (3) winning is not a sure thing for either side.  Still, my instincts are that the Obama administration may come out okay in United States v. Texas in the end.

April 8, 2016

CAPALF 2016 at UC Davis School of Law

The School of Law is proud to host the 2016 Conference of Asian Pacific American Law Faculty (CALALF) at King Hall today and tomorrow. There is a new addition to an already outstanding speaker line-up: California Supreme Court Justice Goodwin Liu.

Here is the program from the CAPALF website.

Keynote Speakers & Distinguished Guests

Justice Goodwin Liu  | Associate Justice
Supreme Court of California

Simon (Young) Tam | The Slants

Angela Harris | Distinguished Professor of Law & Boochever and Bird Endowed Chair
University of California, Davis School of Law

Karen Korematsu | Founder & Executive Director
Fred T. Korematsu Institute

The Honorable Rob Bonta | Assemblymember
California State Assembly

Frank Wu | Distinguished Professor of Law
University of California, Hastings College of the Law

Conference Schedule

Friday, April 8, 2016 | Room 1301

9:00 AM

Welcome Remarks

9:15 AM

Works-in-Progress Session One

10:30 AM

Coffee Break

10:45 AM














Plenary: #BlackLivesMatter and Asian Pacific Americans?

Aarti Kohli | Deputy Director of Advancing Justice
Asian Law Caucus

Linda Lye | Senior Staff Attorney
American Civil Liberties Union of Northern California

Bertrall Ross | Assistant Professor of Law
Co-Director, Thelton E. Henderson Center for Social Justice
University of California, Berkeley School of Law

Margaret Russell | Professor of Law
University of California, Santa Clara School of Law

Moderator: Rose Cuison Villazor | Professor of Law
University of California, Davis School of Law

12:00 PM

Keynote Address & Lunch
Simon (Young) Tam
| The Slants

1:00 PM

Arboretum Walk

1:30 PM

















Works-in-Progress Session Two

Discussion Panel: Neo ­Pariah: Studies in the Emerging Academic Caste System in Higher Education

Angela Harris, Distinguished Professor of Law, Boochever and Bird Endowed Chair
University of California, Davis School of Law

Kieu Linh Caroline Valverde, Associate Professor
University of California, Davis, Department of Asian American Studies

Darrell Hamamoto, Professor
University of California, Davis, Department of Asian American Studies

Wei Ming Dariotis, Associate Professor
San Francisco State University, College of Ethnic Studies, Asian American Studies

Melody Yee, Bachelor of Science
University of California, Davis, Department of Neurobiology, Physiology, and Behavior

Jing Mai, Undergraduate Student
University of California, Davis, Department of Neurobiology, Physiology, and Behavior

2:45 PM













Plenary: Islamophobia & the Lost Legacy of Korematsu

Lorraine Bannai | Professor of Lawyering Skills
Director, Fred T. Korematsu Center for Law and Equality
Seattle University School of Law

Karima Bennoune | UN Special Rapporteur in the Field of Cultural Rights
Professor of Law | University of California, Davis School of Law

Dale Minami | Partner
Minami Tamaki LLP

Shirin Sinnar | Assistant Professor of Law
Stanford Law School

Moderator: Afra Afsharipour | Professor of Law
University of California, Davis School of Law

4:00 PM

Coffee Break

4:15 PM









Plenary: Asian Pacific Americans and College Admissions

Ashutosh Bhagwat | Professor of Law
UC Davis School of Law

Marina C. Hsieh | Senior Fellow
Santa Clara Law

Dan P. Tokaji | Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law
The Ohio State University Moritz College of Law

Moderator: Anupam Chander | Professor of Law
University of California, Davis School of Law

5:30 PM

Awards Ceremony & Dinner
Guest of Honor: Karen Korematsu 

Saturday, April 9, 2016 | Room 2302

9:00 AM

Works-in-Progress Session Three

10:15 AM

Coffee Break

10:30 AM


Welcome Remarks
Dean Kevin Johnson
University of California Davis, School of LawThe Honorable Rob Bonta | Assemblymember
California State Assembly

10:45 AM






Students Plenary: Voices of the Next Generation

Stephen Chang | University of California, Berkeley School of Law

Sylvia Hsin-Ling Tsai | University of California, Davis School of Law

Steven Vong | University of California, Davis School of Law

Moderator: Uyen P. Le | Mellon Sawyer Postdoctoral Scholar University of California, Davis School of Law

12:00 PM

Keynote Address & Lunch
Distinguished Professor of Law Frank Wu
University of California, Hastings College of the Law

1:00 PM













Plenary: Latinos, Asian Pacific Americans, and Immigration

Jennifer Chacón | Professor of Law
University of California, Irvine School of Law

Bill Hing | Professor of Law
University of San Francisco School of Law

Hiroshi Motomura | Susan Westerberg Prager Professor of Law
University of California, Los Angeles School of Law

Deep Gulasekaram | Associate Professor of Law
Santa Clara University School of Law

Moderator: Jack Chin | Professor of Law
University of California, Davis

2:15 PM












Plenary: Emerging Scholars

Christina Chong | Assistant Professor of Law
University of San Francisco School of Law

Andrew Kim | Assistant Professor of Law
Concordia University School of Law

Saira Mohamed | Assistant Professor of Law
University of California, Berkeley School of Law

Nancy Chi Cantalupo | Assistant Professor of Law
Barry University Dwayne O. Andreas School of Law

Moderator: Hiroshi Motomura | Susan Westerberg Prager Professor of Law
University of California, Los Angeles School of Law

 

April 7, 2016

Diversity and Disability

Last Thursday and Friday (March 31st and April 1st), I attended the 2016 Jacobus tenBroek Disability Law Symposium in Baltimore, Maryland. 


The conference at the National Federation of the Blind


Baltimore Harbor at night

This annual symposium, named in honor of Dr. Jacobus tenBroek, brings together disability rights scholars and practitioners to discuss current disability law issues and impact litigation.  Dr. tenBroek served the public in many roles, for example, as a constitutional law scholar at UC Berkeley and a leader of the blind civil rights movement.  As a civil rights activist, Dr. tenBroek understood the importance of cross-movement coalitions to increase the political power of the disenfranchised.  He advocated for the "right to live in the world" for people with disabilities:

The right of access to public accommodations and common carriers is a civil right. It is a basic right indispensable to participation in the community, a substantive right to which all are fully and equally entitled.

Jacobus tenBroek, The Right to Live in the World: The Disabled in the Law of Torts, 54 CAL. L. REV. 841, 858 (1966).

Race is a little discussed topic in the disability rights movement despite its connection to some of the central issues of racial justice today.  For example, disability should be front and center in legal and policy discussions about prisoners' rights (approximately 24-37% of all people in prisons and jails in the U.S. self-report as people with disabilities and are disproportionately people of color).   

This year's symposium brought diversity to the forefront of the conversation.  "Diversity in the Disability Rights Movement: Working Together to Achieve the Right to Live in the World" raised difficult issues about race, gender, and sexual orientation.   I attended a breakout session on the intersection of trans rights and disability that was facilitated by Victoria M. Rodríguez-Roldán, Director, Trans and Gender Non-Conforming Justice Project, National LGBTQ Task Force.  A packed room of legal scholars and practitioners shared ideas on how the Rehabilitation Act and the Americans with Disabilities Act can be used to remedy discrimination against trans people with disabilities.  Claudia Center, Senior Staff Attorney in the Disability Rights section of the American Civil Liberties Union Foundation discussed the applicability of the ADA to police arrests following the Supreme Court decision in City and County of San Francisco v. Sheehan, 135 S.Ct. 1765 (2015).  While the Court appears to have answered the question as to whether the ADA applies to police arrests (turning on whether police arrests constitute a "program or service" under Title II of the ADA), the question of what constitutes "reasonable accommodations" in the context of arrests remains unanswered. 


Judge Thompson addressing attendees at the luncheon

The highlight of the symposium for me - other than having a chance to exchange ideas with disability practitioners and scholars - was the keynote address by the Honorable Myron H. Thompson, U.S. District Judge, United States District Court for the Middle District of Alabama.  Judge Thompson, an African American federal judge with a disability (childhood polio), shared the role of race and disability in constructing identity.  He emphasized the power of internal stigma that comes from low expectations and invisibility and the therapeutic potential of community building and cross-movement pollination.  Judge Thomson reminded the conference participants of the legacy of Dr. tenBroek and called for greater educational opportunities for law students to understand that disability rights are civil and human rights.  He encouraged law schools to build a disability rights law curriculum and law professors to build connections across subject areas so that the next generation recognizes the interconnectivity of race, ethnicity, disability, class, gender, and sexual orientation.  

Judge Thompson was energized when he learned that UC Davis is among a small group of law schools offering disability rights courses taught by full time professors, supporting a student-led Disability Law Society, and regularly inviting practitioners and scholars to discuss disability rights. 

Two King Hall alumnae practicing disability law approached me after the lunch discussion to introduce themselves and applaud King Hall's commitment to disability rights.  I look forward to bringing them back to King Hall in the future to speak with students about careers in disability rights.