Latest Scholarship

September 2, 2015

New Faculty Research: Legal Studies Research Paper Series, Vol. 17 No. 4

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.


"Business and Human Rights Litigation in U.S. Courts Before and after Kiobel" 
UC Davis Legal Studies Research Paper No. 440

WILLIAM S. DODGE, University of California, Davis, School of Law

This Chapter examines the landscape for business and human rights cases in U.S. courts under the Alien Tort Statute (ATS) both before and after the U.S. Supreme Court's 2013 decision in Kiobel v. Royal Dutch Petroleum Co. It concludes that such cases today face a series of challenges, including personal jurisdiction, the question of corporate liability, the standard for aiding and abetting liability, and satisfying Kiobel's "touch and concern" test.

"Employment Arbitration after the Revolution" 
DePaul Law Review, Vol. 65, 2016 Forthcoming
UC Davis Legal Studies Research Paper No. 443

DAVID HORTON, University of California, Davis - School of Law
ANDREA CANN CHANDRASEKHER, University of California, Davis - School of Law

This invited contribution to the DePaul Law Review's Clifford Symposium on Tort Law and Social Policy examines 5,883 cases initiated by employees in the American Arbitration Association between July 1, 2009 and December 31, 2013. Its goal is to shed light on the state of employment arbitration after the U.S. Supreme Court's watershed opinions in Rent-A-Center West, Inc. v. Jackson and AT&T Mobility LLC v. Concepcion.

It finds that employees have filed fewer cases since Concepcion. It also determines that employees "win" - defined as recovering an award of $1 or more - 18% of matters. Finally, it performs logit regressions to investigate the impact of several variables on case outcomes. It concludes that employees are less likely to be victorious when they face a "high-level" or "super" repeat playing employer. Conversely, fact that a case involves a "repeat pairing" - an employer that has appeared at least once before the same arbitrator - does not influence win rates.

"The Ambivalence in the American Law Governing the Admissibility of Uncharged Misconduct Evidence" 
Proceedings of the Fifth International Conference on Evidence Law and Forensic Science, Forthcoming
UC Davis Legal Studies Research Paper No. 438

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law

The English common-law courts gave birth to the character evidence prohibition and helped spread the prohibition throughout the common-law world. Under the prohibition, a prosecutor may not introduce testimony about an accused's uncharged misconduct on the theory that the uncharged misconduct shows the accused's propensity to commit crimes and that in turn, the propensity increases the probability that the accused committed the charged offense. According to the orthodox version of the prohibition, the government may introduce the testimony only if the prosecutor can demonstrate that the evidence is logically relevant on a non-character theory, that is, a theory that does not entail an assumption about the accused's personal, subjective bad character.

Today, though, in much of the common-law world, by virtue of case law and legislation the prohibition is no longer in effect as a rigid, categorical rule. Rather, the courts may admit uncharged misconduct as character evidence when, in their view, the character trait has special relevance or there is striking similarity between the charged and uncharged offenses. In contrast, in the United States the prohibition survives largely intact as a categorical rule. Indeed, the general prohibition is codified in Federal Rule of Evidence 404(b); and the vast majority of states have a statute or court rule modeled after 404(b). Yet, today there is an ambivalence in the American law governing the admissibility of uncharged misconduct:

In federal practice and three handfuls of states, the prohibition has been selectively abolished. For example, Federal Rules 413-14 abolish the prohibition in prosecutions for sexual assault and child molestation. Congress enacted the rules over the vocal opposition of both the Judicial Conference and the A.B.A. and despite empirical data indicating that revidivism rates for those crimes are lower than the rates for many other offenses such as property crimes.

At the same time, in other types of prosecutions there is a marked trend to toughen the standards for admitting uncharged misconduct evidence. Substantively, a number of American jurisdictions have tightened the requirements for both the plan and "res gestae" theories for introducing uncharged misconduct. Procedurally, several jurisdictions have imposed new pretrial notice requirements, demanded that the prosecution explicitly articulate a complete, non-character theory of relevance on the record, and forbidden trial judges from giving "shotgun" jury instructions which do not specify the particular non-character theory that the prosecution is relying on. The distinction between character and non-character theories can be a thin line, and all these steps have been taken to ensure that any uncharged misconduct admitted possesses genuine non-character relevance and is used for only that purpose during deliberations.

Some find the current ambivalence of American law dissastifying and urge that American jurisdictions resolve the tension by following the example of other common-law jurisdictions that have abandoned a general, rigid prohibition. However, doing so would be at best premature. There has yet to be a comprehensive investigation of the trial-level impact of Rules 413-14. Moreover, the most recent psychological research calls into question the validity of inferring a person's character or disposition from a single act or a few instances of conduct-which is what Rules 413-14 authorize a jury to do. Finally, American courts should be especially solicitous of the policy protecting accused from being punished for their bad character. In the United States, that policy has special importance; the Supreme Court has held that the Eighth Amendment ban on cruel and unusual punishment forbids status offenses. If an American jury succumbed to the temptation to punish an accused for his or her past - nothwithstanding a reasonable doubt about their guilt of the charged offense - the conviction would impinge on a policy with constitutional underpinning.

"The Myth of Arrestee DNA Expungement" 
University of Pennsylvania Law Review Online, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 447

ELIZABETH E. JOH, University of California, Davis - School of Law

Building on a trend that began with collecting DNA from convicted offenders, most states and the federal government now collect DNA from felony arrestees. The national DNA database now contains information on more than 2 million arrestees. While some of these arrests will result in guilty pleas or convictions, a substantial number will not. In fact, in many cases arrests lead to dismissed criminal charges or no charges at all. Should these arrestees forfeit their genetic information nevertheless? Every jurisdiction that collects arrestee DNA permits eligible arrestees to seek the expungement of their genetic profiles. While formal expungement is the law, it turns out that arrestee DNA expungement is largely a myth. In most states that collect arrestee DNA, the initial decision by the police to arrest that person turns out in most cases to lead to the permanent collection and retention of the arrestee's genetic information, regardless of whether charges are dismissed or never brought at all. This essay is the first to provide preliminary data on actual arrestee DNA expungement, and argues for quick, efficient, and state-initiated expungement procedures.

"Race-Based Law Enforcement: The Racially Disparate Impacts of Crimmigration Law" 
Case Western Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 437

KEVIN R. JOHNSON, University of California, Davis - School of Law

This Essay was prepared for the Case Western Law Review's symposium on the 20th anniversary of the Supreme Court's decision in Whren v. United States, 517 U.S. 806 (1996). Racially-charged encounters with the police regularly make the national news. Local law enforcement officers also have at various times victimized immigrants of color. For example, New York City Department (NYPD) officers in 1999 killed Amadou Diallo, an unarmed immigrant from Guinea, in a hail of gunfire; two years earlier, officers had tortured Haitian immigrant Abner Louima at a NYPD police station. Both victims were Black, which no doubt contributed to the violence. In less spectacular fashion, police on the beat by many accounts regularly engage in racial profiling in traffic stops of U.S. citizens and noncitizens of color.

Removals of "criminal aliens" have been the cornerstone of the Obama administration's immigration enforcement strategy. Well-publicized increases in the number of removals of immigrants also have been the centerpiece of President Obama's political efforts to persuade Congress to pass a comprehensive immigration reform package. The hope behind the aggressive enforcement strategy has been to convince Congress that this is the time to enact comprehensive immigration reform.

In the last few years, a body of what has been denominated "crimmigration" scholarship has emerged that critically examines the growing confluence of the criminal justice system and the immigration removal machinery in the United States. That body of work tends to direct attention to the unfairness to immigrants, as well as their families, of the increasing criminalization of immigration law and its enforcement. This Essay agrees with the general thrust of the crimmigration criticism, but contends that it does not go far enough. Namely, the emerging scholarship in this genre fails to critically assess the dominant role that race plays in modern law enforcement and how its racial impacts are exacerbated by the operation of a federal immigration removal process that consciously targets "criminal aliens."

Part I of this Essay considers parallel developments in the law: (1) the Supreme Court's implicit sanctioning of race-conscious law enforcement in the United States, with the centerpiece of this symposium, Whren v. United States, the most well-known example; and (2) the trend over at least the last twenty years toward increased cooperation between state and local law enforcement agencies and federal immigration authorities. Part II specifically demonstrates how criminal prosecutions influenced by police reliance on race necessarily lead to the racially disparate removal rates experienced in the modern United States. Part III discusses how some state and local governments have pushed back on cooperation with federal immigration authorities, with effective community police practices being an important policy rationale invoked by local law enforcement for that resistance. Part III of this Essay further contends that more attention should be paid to the racially disparate impacts of linking immigration removals to the outcomes of a racially-tainted criminal justice system. It further sketches some modest reforms to the U.S. immigration laws that might tend to blunt, rather than magnify, some of these racial impacts.

"Corporate Speech and the Rights of Others" 
30 Constitutional Commentary 335 (2015)
UC Davis Legal Studies Research Paper No. 442

THOMAS WUIL JOO, University of California - Davis Law School

The Supreme Court is often erroneously criticized for giving business corporations the constitutional rights of human persons. In fact, constitutional decisions protecting corporations tend to be based not on the rights of corporate "persons," but on the rights of other persons: human individuals such as shareholders or persons who listen to the content of corporate speech. Shareholders' property and privacy interests have been invoked to protect corporations from regulatory takings and from unreasonable searches, for example.

In the First Amendment context, Citizens United and other opinions have invoked the rights of others in a different way, invalidating corporate speech regulations on the ground that they infringe upon the public's right to hear corporate messages. These "rights of others," however, can conflict with the rights of other others: corporate shareholders who might not want corporate assets used to express such messages.

The Court has dismissed this concern with the inaccurate assertion that shareholders control a corporation's messages through "corporate democracy." This contention, and not corporate constitutional "personhood," is the true fallacy of corporate speech jurisprudence. Corporate governance is not democratic. In the interests of money-making efficiency, the law concentrates power in professional managers. As intended, this arrangement is likely to benefit shareholders financially. But it does not give them meaningful input into corporate decision-making, leaving them open to the misuse of corporate property. Thus the "rights of others" may justify the regulation of corporate speech.

"Remembrance of Early Days: Anchors for My Transactional Teaching" 
UC Davis Bus. L.J. 107, 2014
UC Davis Legal Studies Research Paper No. 444

EVELYN A. LEWIS, University of California, Davis - School of Law

This essay discusses teaching transactional skills as part of traditional non-clinical, substantive law classes. It offers a very personal perspective gleaned from the author's 40 years of combined experience as a San Francisco transactional law practitioner and law professor. Of necessity, due to length constraints, the author offers only a few selected opinions about what she thinks works in teaching transactional skills in substantive law classes. Despite this limited focus, the author weighs in, at least a bit, on a myriad of subjects, including the current push for law graduates to be more "practice ready," the importance of skin-in-the-game type mentoring both pre- and post- law school graduation, the different challenges in training transactional lawyers versus litigators, the merits of using multifaceted large drafting projects versus more discrete problems, course advising needs, the teacher as recruiter, balancing desires for breath versus depth of exposure, and using what the author calls factual "side-bars" as accommodation of traditional casebooks to the transactional perspective. The author hopes these offerings of her matured discernment from longevity in the field of transactional law skills training, in the various iterations she notes in the essay, provide some helpful insights to current teachers of transactional law skills, both clinical and non-clinical.

"A New Understanding of Substantial Abuse: Evaluating Harm in U Visa Petitions for Immigrant Victims of Workplace Crime" 
Georgetown Immigration Law Journal, Vol. 29, 2015
UC Davis Legal Studies Research Paper No. 439

EUNICE HYUNHYE CHO, Southern Poverty Law Center
GISELLE A HASS, Georgetown University - Center for Applied Legal Studies
LETICIA M. SAUCEDO, University of California, Davis - School of Law

This Article examines the legal concept of "substantial physical or mental abuse" suffered by immigrant victims of crime in the workplace, particularly as it relates to the ability to qualify for U non-immigrant status (commonly referred to as a "U visa"). Enacted for the dual purposes of strengthening law enforcement capacity and providing humanitarian relief to victims of crime, the U visa allows non-citizen victims of crime who are helpful in a crime's detection, investigation, or prosecution to remain in the United States, obtain employment authorization, and attain lawful permanent residency. To qualify for the visa, victims must demonstrate that they have suffered "substantial physical or mental abuse" as a result of the criminal activity.

Although legal scholars, medical and mental health experts, and government agencies have more robustly explored the concept of "substantial physical or mental abuse" in the context of domestic violence and sexual assault against immigrant women, there has been no focused exploration of this concept in relation to abuse of immigrant workers. In recent years, labor and civil rights enforcement agencies have increasingly certified U visa petitions in cases involving victims of workplace crime, but greater clarity is needed on the concept of substantial abuse in this context.

This Article provides for the first time a comprehensive framework to evaluate abuse suffered by victims of workplace crime in the U visa context. Based on a multi-disciplinary analysis, the Article argues that adjudicators have erroneously conflated the U visa's "substantial physical or mental abuse" standard with the standard of "extreme cruelty" developed in the context of immigration remedies for victims of domestic violence. The Article also argues that U visa adjudicators and advocates must account for the specific dynamics of abuse experienced by immigrant victims of workplace-based criminal activity, which are distinct from abuse displayed in more familiar cases of domestic violence, and examines particular forms of harm and vulnerabilities experienced by victims of workplace crime. The Article finally provides examples to assist adjudicators, policy-makers, and practitioners in the identification and assessment of workplace based U visa cases envisioned by the U visa statute and regulations.

"The Implications of Alabama Department of Revenue v. CSX Transportation Inc. and Direct Marketing Association v. Brohl" 
State Tax Notes, Vol. 76, No. 6, 2015
UC Berkeley Public Law Research Paper No. 2616561
UC Davis Legal Studies Research Paper No. 441

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
DARIEN SHANSKE, University of California, Davis - School of Law

This essay analyzes the implications of two recent Supreme Court cases on state and local taxation: Alabama Department of Revenue v. CSX Transportation Inc. and Direct Marketing Association v. Brohl. We argue that both of these decisions not only fail to resolve major issues in state and local taxation, but actually unsettle these issues.

"The Last Preference: Refugees and the 1965 Immigration Act" 
Forthcoming in The Immigration and Nationality Act of 1965: Legislating a New America (Gabriel J. Chin & Rose Cuison Villazor eds., 2015).
UC Davis Legal Studies Research Paper No. 446

BRIAN SOUCEK, University of California, Davis - School of Law

The 1965 Immigration Act is remembered - and celebrated - for having replaced an immigration system driven by national origins with a preference system privileging family ties and occupational skills. But while the rest of the 1965 Act, in President Johnson's words, welcomed immigrants "because of what they are, and not because of the land from which they sprung," the last of its preferences, given to refugees, emphatically did not. Not only did the 1965 Act fail to embrace the 1951 U.N. Refugee Convention's protection for refugees persecuted because of their nationality, the Act itself discriminated on the basis of refugees' nationality. To qualify, those persecuted had to hail from a "Communist or Communist-dominated country" or "the general area of the Middle East." A separate provision allowed for entry of those "uprooted by catastrophic natural calamity as defined by the President."

By tying refugees' status to "the land from which they sprung," to America's anti-Communist foreign policy and national security interests, and, importantly, to the discretion of the President, the 1965 Act's refugee provision suggests a counter-narrative to descriptions of the Act as part the domestic anti-discrimination agenda of the mid-1960s, or as a reassertion of Congressional control over immigration. The 1965 Act turned refugee policy into another weapon of the Cold War, to be deployed largely as the President chose. It would be another fifteen years before Congress again attempted (or at least purported) to do for refugees what the 1965 Act did for most other immigrants: end national origin discrimination and formalize the criteria and procedures governing admission to the United States.

"Chae Chan Ping v. United States: Immigration as Property" 
Oklahoma Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 445

ROSE CUISON VILLAZOR, University of California, Davis

In this symposium Essay, I explore an overlooked aspect of Chae Chan Ping v. United States: Ping's argument that his exclusion from the United States under the Chinese Exclusion Act violated his property right to re-enter the United States. In particular, Ping contended that the government-issued certificate that he acquired prior to leaving the United States gave him the right to return to the United States. Such right was based on "title or right to be in [the United States] when the writ issued." Importantly, Ping claimed that this right could not be "taken away by mere legislation" because it was "a valuable right like an estate in lands." Similar to his other claims, the Supreme Court rejected this property argument. The Court's treatment of his property claim is understandable because Ping's contention may perhaps be described as "new property," which did not become legible to courts until several decades later.

In reconsidering Ping's property arguments, I aim to achieve two goals. First, as a thought piece, this Essay aims to show what the plenary power doctrine might have looked like had Ping succeeded in convincing the Court that his right to return constituted a property right. Second, this Essay highlights the intersections between property law and immigration law and the ways in which individual property rights might serve as limiting principles to the Supreme Court's formulation of the nation's absolute right to exclude non-citizens from the United States.

August 28, 2015

Professor Peter Lee on "The Supreme Assimilation of Patent Law"

Professor Peter Lee, a leading scholar of patent law, has a new article that will be published in the Michigan Law Review next year. The article is titled "The Supreme Assimilation of Patent Law," and it presents a descriptive theory of Supreme Court patent jurisprudence.

Here is the abstract:

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. This Article explores these tensions by investigating an underappreciated descriptive theory of Supreme Court patent jurisprudence. Significantly extending previous scholarship, it argues that the Court's recent decisions reflect a project of eliminating "patent exceptionalism" and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles). Among other motivations, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as appellate review of lower courts, remedies, and the award of attorney's fees. The Supreme Court has consistently sought to eliminate patent exceptionalism in these and other areas, bringing patent law in conformity with general legal standards. Among other implications, this development reveals the Supreme Court's holistic outlook as a generalist court concerned with broad legal consistency, concerns which are less pertinent to the quasi-specialized Federal Circuit. Turning to normative considerations, this Article argues in favor of selective, refined exceptionalism for patent law. Although the Supreme Court should strive for broad consistency, certain unique features of patent law-particularly the role and expertise of the Federal Circuit-justify some departure from general legal norms. Finally, this Article turns to tensions between legal universality and exceptionalism more broadly, articulating principles to guide the deviation of specialized areas of law from transcendent principles.  

You can download Peter Lee's paper at SSRN.


August 24, 2015

Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law

I have a post on based on a longer article. An excerpt:

In many parts of the country, state and local police target Latina/os for criminal law enforcement efforts.  Those efforts include racial profiling of Latina/os in ordinary traffic stops, a phenomenon that has been referred to as “driving while brown.”  Latinos are especially vulnerable to arrest for minor traffic violations, such as driving without a license.  (Until recently, few states permitted undocumented immigrants to obtain driver’s licenses.).  Consequently, it should not be surprising that, during the Obama presidency, the vast majority of the persons removed from the country consistently have been from Mexico and Central America, comprising a significantly higher percentage than those groups’ representation in the overall immigrant population in the United States.

The U.S. immigration removal system targets noncitizens who are involved in criminal activity. Relying on state and local police action, which many claim is racially biased due to such practices as racial profiling, the U.S. government removes nearly 400,000 noncitizens a year, with more than 95 percent from Mexico and Latin America (even though the overall immigrant population is much more diverse). State and local governments have resisted some of the federal government’s aggressive removal efforts through “sanctuary laws,” which are designed to build the trust in immigrant communities necessary for effective law enforcement by local police. Reforms in the immigration laws are necessary to reduce the racially disparate impacts of reliance on the criminal justice system for immigration removals.

View the full piece here on casetext.

August 20, 2015

America Has Freaked Out Over Birthright Citizenship For Centuries

Professor Gabriel "Jack" Chin has penned an essay for Talking Points Memo on birthright citizenship, pointing out that the heated rhetoric over the citizenship of children of undocumented immigrants is far from new. "The citizenship status of every non-white racial group has been challenged for literally centuries," he writes.

An excerpt from his piece titled, "America Has Freaked Out Over Birthright Citizenship For Centuries":

The original Constitution said nothing about who was a U.S. citizen. It gave Congress the power, exclusive of the states, to grant citizenship by naturalization, but it neither addressed the requirements for naturalization nor described the legal status of those obtaining naturalized citizenship. In 1790, Congress linked race to citizenship by allowing only “free white persons” to naturalize; racial restrictions of one kind or another were in effect continuously until 1952. The Constitution also provided that only a “natural-born citizen” could be elected president, but here too, the document failed to explain who was a natural-born citizen, leading to repeated controversies about the eligibility of candidates born out of the United States, such as John McCain, George Romney and Ted Cruz.

And yet, even in the earliest days of the Republic, there must have been U.S. citizens. As the Supreme Court and other courts recognized, U.S. citizenship was granted by unwritten law. As a “common law” legal principle, in general, children born in the United States were citizens. However, because the rule was unwritten, its precise contours were debatable. The Supreme Court’s notorious Dred Scott case, decided in 1857, turned on the majority’s conclusion that a person of African ancestry was not a U.S. citizen, even though born here. The Court essentially found an unwritten exception to the unwritten law—namely, that it benefited only whites.

Read the full piece at Talking Points Memo.

August 18, 2015

The “sock removal” case continues: Mellouli v. Lynch and compliance with the Court’s mandate

Cross-posted from SCOTUSblog.

Last June, the U.S. Supreme Court provided Moones Mellouli, a lawful permanent resident who had been ordered removed from the United States, with a victory in his efforts to reverse a removal order.  The Court held that "[f]ederal law ([8 U.S.C.] 1227(a)(2)(B)(i)  . . . did not authorize Mellouli's removal." It did not remand the case to the court of appeals or the Board of Immigration Appeals for further proceedings, thereby suggesting that the case had come to an end.  Nonetheless, there now is a squabble between Mellouli and the U.S. government over just how big Mellouli's victory was.

The Court ruled that Mellouli's removal order based on a single conviction under Kansas law for possession of drug paraphernalia - in this instance, a sock used to conceal a few tablets of a prescription drug - was not authorized by federal immigration law.  The case was returned to the U.S. Court of Appeals for the Eighth Circuit, which, without notice or briefing, remanded the case to the Board of Immigration Appeals (BIA) for further proceedings consistent with the Court's opinion.  A close reading of the order suggests that the court of appeals thought that, despite the seeming finality of the Supreme Court ruling, there still might be a way to remove Mellouli under the drug provisions of the immigration statute.

After the Court's decision, the parties discussed possible resolution of the case.  The U.S. government ultimately announced that it planned to dismiss the removal proceedings without prejudice, thereby leaving open the possibility of reinstituting the proceedings against Mellouli at some point.  In contrast, Mellouli wants to ensure that the proceedings are dismissed with prejudice.

In the Supreme Court, Mellouli now seeks Justice Alito, who disagreed with the majority's rejection of the removal order in Mellouli v. Lynch, to issue a stay to allow Mellouli to pursue efforts, including possible mandamus, to require the U.S. government to dismiss the removal proceedings with prejudice.

One might guess that Justice Alito, as well as the entire Court, would not want to tinker with the intricacies of the implementation of the Court's decision.  However, Mellouli claims that the court of appeals is violating the Court's ruling by remanding for the BIA to come up with a way for justifying removal under the drug provisions of the removal statute when the Court has already ruled that Mellouli is not removable under its provisions.  Efforts to circumvent the Court's ruling just might get Justice Alito's attention.  Indeed, something in Mellouli's stay motion apparently did get his attention and persuaded Justice Alito to request a response by the Department of Justice by 4 p.m. EST on August 20.

In addition, the matter of the finality of the Court's ruling is no small matter to Moones Mellouli.  Mellouli wants certainty that the minor drug paraphernalia conviction does not possibly lead to further removal proceedings and possible detention if he returns to the United States.  He already experienced threatened removal once, having been forced to leave the United States and his fiancé.  (Mellouli remains living outside the country.).  The nature of Mellouli's concerns, and the great potential harms he faces, offers insights into why removal matters differ from the ordinary civil matters handled by the courts.

All in all, the struggle between the Justice Department and Moones Mellouli might seem like small potatoes.  One might legitimately ask, however - as many did as the United States pressed a minor drug paraphernalia involving a sock all the way to the Supreme Court - why the U.S. government is taking such tough litigation positions to no apparent greater end.

July 1, 2015

What the Supreme Court Should Have Said in the Confederate Flag Texas License Plate Case

Cross-posted from Justia's Verdict.

Display of the Confederate battle flag on government-owned property has certainly gotten a lot of attention of late. The Supreme Court ruled 5-4 a few weeks ago, in Walker v. Texas Division, Sons of Confederate Veterans, Inc., that Texas could, consistent with the First Amendment, reject a specialty license plate design submitted by a non-profit entity due to the design’s prominent use of the Confederate battle flag, even though Texas had approved a disparate array of some 350 other designs submitted by various individuals and organizations depicting messages ranging from “I’d Rather Be Golfing” to the names of a number of (out-of-state) universities to “MIGHTY FINE” to “GET IT SOLD WITH RE/MAX.”

And, in the wake of the Charleston church shootings that occurred a day before Walker was handed down, there have been calls made and steps taken by (Republican as well as Democrat) elected leaders to remove the Confederate battle symbol from statehouses in places like Alabama and South Carolina.

Interestingly, the latter episode sheds light on how the Court should have handled the former—the Walker dispute. In short, the Court should have treated Walker more as a Confederate battle flag case, and less as a license plate case.

Why Justice Breyer’s Majority Opinion In Walker Is Unconvincing

Many able analysts, including some of my fellow Verdict columnists writing in other venues, have exposed some of the major shortcomings of Justice Breyer’s majority opinion, which holds that specialty license plates in Texas are “government speech,” such that the government is largely free to pick and choose—even on the basis of viewpoint—which messages shall be allowed on specialty plates mounted on Texas-registered vehicles. Justice Breyer’s opinion gives a few reasons why the Court believes specialty plates should be treated as government speech. First is that states have historically used license plates as a means of promoting government messages—such as a state’s motto or some iconic image of the state which its leaders want viewers to think of when the state comes to mind. Fair enough, but Justice Breyer is relying here on a prior era, and one in which Texas (and other states) had but a single, or a few, messages it allowed on any of the plates registered in the State. By opening up its license plate regime and approving over 350 disparate messages, Texas has changed the essential purpose (beyond identification of the car’s owner) of the license plate platform from government speech to private speech. And this is not a phenomenon unique to license plates. There might be a lot of public properties that once were used substantially for government speech, but that have been converted into limited or designated or nonpublic fora (where the government is no longer free to discriminate against particular viewpoints) by the government’s decision to open up the property so widely. And it is no response to a claim of improper viewpoint discrimination in any of these kinds of fora to say that the property was originally used for government speech.

The second argument Justice Breyer makes is that license plates are closely associated or identified with the state in the public’s mind. Justice Breyer adds that “a person who displays a message on a Texas license plate likely intend[s] to convey to the public that the State had endorsed the message. If not, the individual could simply display . . . a bumper sticker.” Again, that might have been true of Texas license plates in an early era, but as Justice Alito’s withering dissent points out, no remotely reasonable viewers would ever actually think, after driving Texas roads for even a short time, that Texas really supports messages like “Go [Michigan State] Spartans,” or “Roll [Alabama] Tide Roll.” Or that the person whose plate bears one of these messages actually chose the plate design over a bumper sticker in order to obtain a state imprimatur (as opposed to preferring a specialty plate over a sticker because of the permanence and cleanliness of a plate, and to avoid any stigma tied to the use of bumper stickers.) I also find it interesting that questions such as these are empirical ones, and yet the Court makes broad findings in this regard without any (easily obtainable) evidence. (This lack of empirical input concerning public perceptions was also a feature of another First Amendment case, Williams-Yulee v. Florida Bar, about which I wrote a column six weeks ago).

A Better Framing of the Issues Implicated by Walker

In spite of its analytic weaknesses, Justice Breyer’s opinion arrives at a result that many observers, on and off the Court, find intuitively correct. Can the Lone Star State really be forced to have the word “TEXAS” that runs accross the top of every license plate in the State appear just a few inches from the Confederate battle flag symbol? Walker, it is worth noting, was a rare case in which Justice Clarence Thomas joined the four “liberal” Justices to create a very unlikely 5-4 majority. Odd lineups like this usually suggest that something interesting is going on, but what might be the key to unlocking Walker?

For me, the critical fact in the case is one to which the Court gave virtually no attention—that the symbol at issue is not just an offensive one (representing, as it does, slavery, rebellion, and a combination of the two, whether or not it stands for other things as well.) It is a symbol that originated as government speech by, among other Confederate states, the State of Texas, and that is thus linked to those state governments, including Texas, who are responsible for its prominence and its (ugly) messages. The flag was adopted and used in battle by Confederate states from late 1861 until the fall of the Confederacy, and then utilized extensively by racist governors and other officials to resist desegregation during the Civil Rights movement. So even if Texas were required to permit racial slurs on specialty plates (a matter about which I’m not sure – perhaps Texas, because of its history concerning race, has a strong interest in separating itself from any racist message that, if attributed to the state, might raise equal protection problems), the present case is different: the Confederate battle flag is worse in this regard than a racial slur; it is akin to a racial slur that was adopted and previously used as a state’s motto.

Because Texas has a distinctive association with use of the Confederate flag, it has a distinctive (and non-censorial) reason to want to avoid improper attribution on its property, including its license plates. I am not saying that government owns the intellectual property rights to control the use of flag symbols—the famous Texas v. Johnson case invalidating a law prohibiting flag-burning rightly rejected that idea. Rather, because the risk of misattribution is greater with respect to the use on government property of symbols that had formerly been used by the government itself than it is with respect to other messages, the government has a correspondingly stronger reason (other than censorship) to regulate.

For example, if New Hampshire changed its motto from the traditional “Live Free or Die” message that has been appearing on its license plates for decades (and that was the subject of the other famous Supreme Court case involving a license plate, Wooley v. Maynard) because the State no longer embraced that principle, and it had a specialty plate scheme in which an applicant wanted that creed to physically appear near the words “NEW HAMPSHIRE,” the State would have a strong interest in rejecting that design to avoid any confusion.

If the approach I offer here had been the basis of the majority’s decision in Walker, various problems that Justice Breyer’s opinion creates going forward would have been avoided. If Texas specialty plates really are “government speech,” then how can the State approve and allow the design (which it has) bearing the words “Knights of Columbus,” a distinctively Catholic fraternal service organization? If people identify that design with lawmakers in Austin, isn’t there an Establishment Clause problem? And if the license plates are government (rather than private) speech, then Texas can reject a design bearing the words “Pro-Choice” even though it has already approved one bearing the words “Choose Life.” Does that kind of asymmetry make sense?

It may well be that the rationale I suggest today could, if adopted, mean that some states (i.e., those particularly associated with the Confederacy or racism) would have more latitude than others to reject the Confederate flag on specialty plate designs, and that the rejection by some states (that lack the historical association) would look like censorship, pure and simple. But even if that is true, we should remember that other equality-based constitutional doctrines are similarly contextual. For example, a jurisdiction that has engaged in racial discrimination may have more latitude to engage in race-based remedial action than one that hasn’t. The “government speech” rationale adopted by the Court may seem to create a cleaner line than the test I offer here, but in the long run it is (I suspect) less honest and will be more problematic in future disputes.

June 25, 2015

New Faculty Research: Legal Studies Research Paper Series, Vol. 17 No. 3

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.


"Law and the Geography of Cyberspace"  
6 W.I.P.O.J., Issue 1 (2014)
UC Davis Legal Studies Research Paper No. 432

ANUPAM CHANDER, University of California, Davis - School of Law

The Internet was supposed to end geography. Anyone, anywhere could now run a newspaper, a search engine, a game service, and the world could access it. After millennia of geography dictating destiny, the world was now flat, and opportunity evenly distributed everywhere. Yet, a quick glance at the world's leading internet companies, from Facebook to Zillow, leads one remarkably often to the United States. In this article, I argue that law played a crucial role in creating the geography of cyberspace - specifically, that flexible intellectual property rules which permitted internet entrepreneurship in the United States proved a key ingredient in American commercial success on the internet.

"After the Revolution: An Empirical Study of Consumer Arbitration"  
Georgetown Law Journal, Vol. 104, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 436

DAVID HORTON, University of California, Davis - School of Law
ANDREA CANN CHANDRASEKHER, University of California, Davis - School of Law

For decades, mandatory consumer arbitration has been ground zero in the war between the business community and the plaintiffs' bar. Some courts, scholars, and interest groups argue that the speed, informality, and accessibility of private dispute resolution create a conduit for everyday people to pursue claims. However, others object that arbitration's loose procedural and evidentiary rules dilute substantive rights, and that arbitrators favor the repeat playing corporations that can influence their livelihood by selecting them in future matters. Since 2010, the stakes in this debate have soared, as the U.S. Supreme Court has expanded arbitral power and mandated that consumers resolve cases that once would have been class actions in two-party arbitration. But although the Court's jurisprudence has received sustained scholarly attention, both its defenders and critics do not know how it has played out behind the black curtain of the extrajudicial tribunal.

This Article offers fresh perspective on this debate by analyzing nearly 5,000 complaints filed by consumers with the American Arbitration Association between 2009 and 2013. It provides sorely-needed information about filing rates, outcomes, damages, costs, and case length. It also discovers that the abolition of the consumer class action has changed the dynamic inside the arbitral forum. Some plaintiffs' lawyers have tried to fill this void by filing numerous freestanding claims against the same company. Yet these "arbitration entrepreneurs" are a pale substitute for the traditional class mechanism. Moreover, by pursuing scores of individual disputes, they have inadvertently transformed some large corporations into "extreme" repeat players. The Article demonstrates that these frequently-arbitrating entities win more and pay less in damages than one-shot entities. Thus, the Court's consumer arbitration revolution not only shields big businesses from class action liability, but gives them a boost in the handful of matters that trickle into the arbitral forum.

"The Effect of the Successful Assertion of the State Secrets Privilege in a Civil Lawsuit in Which the Government Is Not a Party: When, If Ever, Should the Defendant Shoulder the Burden of the Government's Successful Privilege Claim?"  
Wyoming Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 428

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law

It is well-settled that the national government has an evidentiary privilege protecting state and military secrets. The privilege protects information that can be vital to the country's safety and survival. It was expectable that the national government would begin asserting the privilege more frequently after 9/11. The government has invoked the privilege in several prosecutions of alleged terrorists.

However, the privilege also applies in civil actions. Indeed, the government may assert the privilege in a civil action even when the government is not joined as a party. The government has the right to intervene for the purpose of claiming the privilege. In recent years, the government has asserted the privilege in a large number of civil actions, including cases involving high technology companies, private security firms, infrastructure contractors, and weapons and aircraft manufacturers.

When the government successfully asserts the privilege in a civil action in which it is not a party, the question naturally arises: What is the procedural effect of the assertion? As the quotations at the beginning of this article indicate, the generalization has been that the only effects are that the privileged information becomes unavailable as evidence and that the case can proceed without the privileged evidence. However, Part I of this article demonstrates that that generalization is a gross over-simplification. In many cases, the court terminates the litigation, resulting in a peremptory victory for the defense. The plaintiff loses the opportunity to conduct discovery or take the case to trial.

Part II of this article presents a critical evaluation of the current state of the law. The primary thrust of Part II is that at least in one set of circumstances, the plaintiff ought to be permitted to proceed - namely, when (1) the plaintiff has sufficient unprivileged evidence to present a prima facie case, (2) proceeding would not raise a significant risk of the inadvertent revelation of privileged information, (3) the privilege claim affects the defense's ability to develop an affirmative defense, and (4) the defendant has a closer relationship to the government than the plaintiff. A factual proposition is considered an affirmative defense because the law assigns the defendant the burdens of pleading, production, and proof on the proposition. The allocation of these burdens to the defendant can be outcome determinative. If there were sufficiently weighty policies to assign those burdens to the defendant, in these circumstances the defendant should also bear the burden of the loss of the privileged evidence. The government's privilege claim neither extinguishes nor diminishes the policies that originally warranted assigning the burdens to the defense. Part II adds that there is a colorable argument that the plaintiff should also be permitted to proceed when the government claim interferes with the defendant's ability to present a simple defense, merely negating an element of the plaintiff's case.

Part II emphasizes that although the plaintiff should be permitted to proceed in these exceptional cases, the court should not grant the plaintiff the sort of peremptory victory that the defense usually obtains after the government's claim. Even when the plaintiff proceeds, it is not a foregone conclusion that there will be a plaintiff's verdict. A key plaintiff's witness may become unavailable for trial, a nervous witness might forget information critical to the plaintiff's case, or the witness may display negative demeanor that prompts the jury to disbelieve the witness's testimony. Hence, the judge should neither enter summary judgment for the plaintiff nor direct a verdict in the plaintiff's favor. However, the thesis of this article is that in these cases the law should be reformed to accord the plaintiff an opportunity to proceed and fairly win a verdict.

"Under the Sun: Casebooks and the Future of Contracts Teaching"  
68 Hastings Law Journal 899 (2015)
UC Davis Legal Studies Research Paper No. 433

THOMAS WUIL JOO, University of California - Davis Law School

What is the future of the casebook in legal education? It is tempting and fashionable to blame the current woes of law schools on their supposedly "outdated" educational practices, such as casebooks. As this Essay shows, however, most of the current criticisms of casebooks and the case method are perennial ones. This does not render the critiques invalid, but it does undermine the notion that they reveal a contemporary crisis in legal education. Indeed, they are not even specific to legal education. Rather, they reflect fundamental tensions in the learning of any field: theory versus practice, general understanding versus specific technical knowledge. By saying that there is nothing truly new in these criticisms, I do not mean to say that proposals for reform are futile or ill-advised. It is simply that there is nothing new under the sun, in legal education or anywhere else. Legal education has gone back and forth on these matters, and will continue to do so, and that is probably as it should be.

"Family Support and Supporting Families"  
68 Vanderbilt Law Review En Banc 153 (2015)
UC Davis Legal Studies Research Paper No. 427

COURTNEY G. JOSLIN, University of California, Davis - School of Law

This Essay is a Response to Professor Laura Rosenbury's recent article Federal Visions of Private Family Support. Rosenbury's piece offers critical new insights into the role of the federal government in the family. Rosenbury's first important contribution is to demonstrate that, contrary to the dominant narrative, the federal government does not "consistently defer to states' authority to define family." Second, Rosenbury takes this point further by offering one of the few theories that seeks to explain why the federal government intervenes in the family. Rosenbury argues that the overriding reason the federal government recognizes families is "to privatize the dependencies of family members," that is "to incentivize individuals to privately address the dependencies that often arise when adults care for children and for one another." At a time when one of the most visible family law questions is whether same-sex couples will be permitted to marry, this aspect of family recognition is often overlooked, or at least undertheorized. This oversight is a mistake. Rosenbury's piece seeks to keep this consequence of family recognition at the forefront of family law reform conversations.

This Essay highlights the significance of the contributions Rosenbury offers and then pushes her analysis even further. As Rosenbury herself acknowledges, the imposition of family-care obligations is not the only consequence of family recognition. In many circumstances, the government - at both the state and the federal level - also distributes family-based benefits or subsidies to help people fulfill these caregiving and support responsibilities. And while both sides of this equation - the legal obligations of and the subsidies for caretaking - clearly are interrelated, additional insights can be gained by separating these two effects of family recognition. In particular, this Essay argues that by looking at both the imposition of family-care obligations and the distribution of family-based subsidies one can better assess the effectiveness (or lack thereof) of family law and policy on particular families. In addition, looking at both sides of the equation can also provide a deeper understanding of why governments recognize families.

"The Supreme Court's Myriad Effects on Scientific Research: Definitional Fluidity and the Legal Construction of Nature"  
5 U.C. Irvine Law Review, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 431

PETER LEE, University of California, Davis - School of Law

This article examines the implications for biomedical research of the Supreme Court's ruling in Association for Molecular Pathology v. Myriad Genetics that isolated DNA does not comprise patentable subject matter but that complementary DNA (cDNA) does. Although most of the commentary surrounding this case has focused on the availability of genetic diagnostic tests, this Article considers the related and important implications of this opinion for scientific research. At the outset, it argues that this issue is beset with definitional complexity, as it is often difficult to disentangle "commercial" from "research" uses of patented genes. This Article further argues that context matters significantly in assessing the impact of the Court's ruling on research. Accordingly, this Article examines the implications of Myriad Genetics from three perspectives. First, considering the conduct of Myriad Genetics itself, it argues that the Supreme Court's decision creates greater real and perceived freedom to operate for uses of BRCA genes that may yield important scientific insights. Second, reviewing the literature on gene patents and anticommons, this Article argues that the Court's ruling will help enhance access to diagnostic testing more generally, thus advancing biomedical research. Third, at a doctrinal level, this Article suggests that Myriad Genetics may have significant long-term implications. The Court's opinion reflects a strong policy interest in excluding "nature" from patentable subject matter as well as a high degree of discretion in determining the contours of nature for that purpose. Such a policy-oriented, pragmatic approach to patent eligibility may create significant flexibility to challenge patents in research contexts going forward.

"The Supreme Assimilation of Patent Law"  
UC Davis Legal Studies Research Paper No. 435

PETER LEE, University of California, Davis - School of Law

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. Focusing on this tension, this Article explores an underappreciated descriptive theory of recent Supreme Court patent jurisprudence. Commentators observe that the Court has reined in expansive Federal Circuit patent doctrine and established holistic standards to replace bright-line rules. This Article augments these prevailing interpretations by exploring another. Building upon and significantly extending previous scholarship, it argues that the Supreme Court's recent patent jurisprudence reflects a project of eliminating "patent exceptionalism" and assimilating patent doctrine to general legal principles. In a variety of areas including appellate review of lower courts and agencies, jurisdiction, remedies, and the award of attorney's fees, the Federal Circuit has developed rather exceptional doctrine for patent cases. However, the Supreme Court has consistently eliminated such exceptionalism, bringing patent law in conformity with general legal standards. Among other observations, the Supreme Court's intervention reveals its holistic outlook as a generalist court concerned with broad legal consistency, concerns which are less pertinent to the quasi-specialized Federal Circuit. The Article concludes by arguing in favor of selective, refined exceptionalism for patent law. Although the Supreme Court should strive for broad consistency, this Article argues that unique features of patent law - particularly the role and expertise of the Federal Circuit - justify some departure from general legal norms. Finally, this Article turns to tensions between legal universality and exceptionalism more broadly, articulating principles to guide the deviation of specialized areas of law from transcendent principles.

"The Missing Pieces of Geoengineering Research Governance"  
Minnesota Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 434

ALBERT LIN, University of California, Davis - School of Law

Proposals to govern geoengineering research have focused heavily on the physical risks associated with individual research projects, and to a somewhat lesser degree on fostering public trust. While these concerns are critical, they are not the only concerns that research governance should address. Generally overlooked, and more difficult to address, are the systemic concerns geoengineering research raises: technological lock-in - the danger that sustained research efforts will predetermine geoengineering deployment decisions; moral hazard - the danger that increased attention to geoengineering will undermine efforts to reduce greenhouse gas emissions; and the potential that research itself will increase the probability of future global conflict. Developing mechanisms to address these systemic concerns is a difficult but essential task. This Article proposes an ongoing programmatic technology assessment to analyze the physical and systemic risks associated with geoengineering research, prioritization of research into techniques involving lesser risks, and establishment of safeguards against such risks.

"Brief of Interested Law Professors in Direct Marketing Association v. Brohl (10th Circuit)"  
UC Davis Legal Studies Research Paper No. 429

DARIEN SHANSKE, University of California, Davis - School of Law
ALAN B. MORRISON, George Washington University - Law School
KIRK J. STARK, University of California, Los Angeles (UCLA) - School of Law
JOSEPH BANKMAN, Stanford Law School
JORDAN M. BARRY, University of San Diego School of Law
BARBARA H. FRIED, Stanford Law School
JOHN A. SWAIN, University of Arizona - James E. Rogers College of Law
DENNIS J. VENTRY, University of California, Davis - School of Law

This case, Direct Marketing Association v. Brohl, was recently remanded by the U.S. Supreme Court to the Tenth Circuit Court of Appeals. The Tenth Circuit then requested a full supplemental briefing; amici law professors submitted this brief.

Like all states with a sales tax, Colorado faced - and faces - a voluntary compliance problem with the collection of its use tax. The use tax is a complement to the sales tax; in-state vendors collect and remit the sales tax, while in-state consumers are responsible for remitting the use tax on purchases made from out-of-state vendors that do not collect the sales tax. To this compliance challenge, Colorado turned to a third-party reporting solution. In broad strokes, the Colorado Statute imposes a modest requirement on one party to a taxable transaction - specifically on relatively large retailers who do not collect the use tax - to report information on their Colorado sales both to the consumer/taxpayer and to the taxing authorities.

Amici make three specific arguments. First, amici demonstrate that third-party reporting of tax information is a ubiquitous and longstanding feature of modern tax systems. When tax authorities rely on taxpayers to self-report their taxable activities, compliance rates for the collection of any tax is low. Therefore, from the broader perspective of tax collection theory and history, including the history of very similar transaction-based taxes that attempt to tax consumption, the Colorado Statute is an unexceptional response to an otherwise intractable problem.

Second, amici argue that the Supreme Court's decision in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), does not apply to the statute at issue in this case. Quill imposed a bright-line physical presence test as a precondition for a state to impose a use tax collection obligation on a retailer. Because of its own self-limiting language and logic, not to mention greatly changed circumstances, the rule of Quill should not be extended into a new area.

Third, amici argue that, because sales and use taxes constitute a unified system, there is no discrimination simply because differently situated retailers are required to aid in the collection of what is essentially a single tax in different ways.

"Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929, by Ajay K Mehrotra (Review)"  
46 Journal of Interdisciplinary History 133 (Summer 2015)
UC Davis Legal Studies Research Paper No. 430

DENNIS J. VENTRY, University of California, Davis - School of Law

Mehrotra's award-winning book is a tour de force. It chronicles a transformative period in the development of the American fiscal state during which the old order - characterized by indirect, hidden, mercilessly regressive, and partisan taxation - gave way to a direct, transparent, steeply progressive, and professionally administered tax regime.

June 18, 2015

Premiere of Film on the Historic Trial that Made Rape a War Crime

This week, I am in Rwanda for the premiere of the documentary film The Uncondemned.

The Uncondemned documents the legal and political path to the 1998 conviction of Jean-Paul Akayesu, the mayor of Taba Commune, Rwanda, in the first-ever conviction of rape as an act of genocide and as a crime against humanity.  The prosecution and conviction were at the International Criminal Tribunal for Rwanda (ICTR). a forerunner to the International Criminal Court.  The Rwandan Genocide occurred over about 3 months, beginning in April 1994, after the plane carrying the president of Rwanda, a moderate Hutu, was shot down. 

I was a gender consultant to ICTR in 1996 where I did the initial legal analysis of the sexual assault case against Akayesu, arguing that the indictment (for killings as acts of genocide and as crimes against humanity) against him should be amended to include charges of rape and other sexual assaults that occurred at the Taba Bureau Communale, which was under his control.  I appear in the film, along with the two American lawyers who tried the case, Pierre-Richard Prosper and Sara Darehshori. Also featured are other officials of ICTR, journalists who covered the genocide, and human rights advocates. 

Most exciting is that the three women who were the key witnesses against Akayesu are in the film, along with the Taba commune social worker who encouraged them to testify and helped to facilitate their doing so.  Those four women attended the premiere.  Their statements were the ones I was analyzing back in 1996. 

The President of Rwanda, Paul Kagame, hosted the screening of The Uncondemned in the capital city, Kigali. Also among those in attendance were the Minister of Justice, the Foreign Minister and a number of women parliamentarians. Official photos from the event are posted to the President's  Flickr album.  I am in a couple of the photos there, and my son William is one, too, near the bottom of the page.  


Photo: Professor Lisa Pruitt with two of the rape survivors, Serrafina and Victoire, who testified against Akayesu.

The Uncondemned is expected to be in distribution across the U.S. and worldwide in 2016.


June 15, 2015

Opinion analysis: Limited judicial review of consular officer visa decisions – foreshadowing the result in the same-sex marriage case?

Cross-posted from SCOTUSblog.

Today, a splintered Supreme Court issued a ruling in Kerry v. Din.  The case raised the question of the continuing vitality of the doctrine of consular non-reviewability and its prohibition of judicial review of visa denials by Department of State consular officers. The doctrine is a close cousin of immigration law's extraordinary "plenary power doctrine," which emerged in the late 1800s to uphold laws restricting immigration from China and, in its modern incarnation, immunizes the U.S. immigration laws from ordinary constitutional review.

Over the years, the courts have recognized exceptions to consular absolutism. The most well-known modern example is Kleindienst v. Mandel (1972). In that case, the Supreme Court reviewed a claim brought by U.S. citizens that the exclusion of a Marxist journalist from the United States violated their First Amendment right to hear him speak. In reviewing the visa decision, the Court found that the applicant's violation of the terms of visas on previous trips to the United States was a "facially legitimate and bona fide reason" - and thus legally sufficient - justification for the U.S. government's actions.

Kaniska Berashk is a citizen of Afghanistan and the spouse of Fauzia Din, a naturalized U.S. citizen. Based on his marriage to a U.S. citizen, he applied for a visa for which he was prima facie eligible under the Immigration and Nationality Act. A consular officer in the U.S. embassy in Islamabad, Pakistan, denied the visa application. One could guess that the denial was based on the fact that Berashk had worked as a payroll clerk for the Afghan Ministry of Social Welfare, part of the national government at one time controlled by the Taliban. The officer did not so state, however, instead relying on the immigration statute's broad definition of "terrorist activities," which Congress had greatly expanded in 1996 immigration reform legislation and later in the USA PATRIOT Act. The officer provided no explanation of what Berashk specifically had done to warrant the visa denial. Din sought judicial review of her husband's visa denial and forced separation from her. Applying Kleindienst, the court of appeals found that the consular officer's perfunctory citation to the statute was an insufficient ground for the denial.

Before the Supreme Court, the Obama administration took a firm position and relied heavily on two Cold-War-era decisions that immigration law professors love to hate: Knauff v. Shaughnessy (1950); in which the Court held that the non-citizen wife of a U.S. citizen could be denied admission based on secret evidence, and Shaughnessy v. United States ex rel. Mezei (1953), in which the Court refused, based on secret evidence, to allow a long-term U.S. resident to return to the United States after a trip abroad to visit a dying relative, even when the resident faced the prospect of indefinite detention because his native country would not accept his return. Seeking to limit Kleindienst to its facts, the U.S. government argued that it possessed absolute authority to exclude non-citizens from the country and that there therefore is no right to judicial review of visa denials by consular officers.

The opinions of the Justices reveal that the case appears to have been more a battlefield over the scope of constitutional due process rights to marriage - and thus perhaps to the same-sex marriage case (Obergefell v. Hodges) currently before the Court - than a case involving judicial review of visa decisions.

Justice Antonin Scalia announced the judgment of the Court and delivered an opinion, in which Chief Justice John Roberts and Justice Clarence Thomas joined. In the view of the plurality, Din did not have a constitutional right at stake that justified judicial review: "What Justice Breyer's dissent strangely describes as a 'deprivation of her freedom to live together with her spouse in America' . . . is, in any world other than the artificial world of ever-expanding constitutional rights, nothing more than a deprivation of her spouse's freedom to immigrate into America."

Recounting the long history of regulation of the immigration of spouses of U.S. citizens to the United States (that includes the stripping of U.S. citizenship from women who married foreigners), Justice Scalia took pains to criticize Justice Stephen Breyer's assertion (in his dissent) that Din had a constitutional right at stake. He concluded that "[t]o the extent that she received any explanation for the Government's decision, this was more than the Due Process Clause required." Consequently, the Ninth Circuit ruling to the contrary was vacated and the case was remanded for further proceedings.

Justice Anthony Kennedy, joined by Justice Samuel Alito, concurred in the judgment. While agreeing with the plurality that the case must be vacated and remanded, Justice Kennedy stated that, "rather than deciding, as the plurality does, whether Din has a protected liberty interest, my view is that, even assuming she does, the notice she received regarding her husband's visa denial satisfied due process." Refusing to join Justice Scalia's recounting of the case law on the scope of the right to marriage, Justice Kennedy would find that the reasoning offered by the consular officer for denying the visa satisfies Kleindienst, suggesting that national security justifies the minimal justification offered for the denial.

In dissent, Justice Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, would conclude that Din "possesses the kind of 'liberty' interest to which the Due Process Clause grants procedural protection. And the Government has failed to provide her the procedure that is constitutionally 'due.'" "[T]the liberty interest that Ms. Din seeks to protect consists of her freedom to live together with her husband in the United States. She seeks procedural, not substantive, protection for this freedom."

Like the Ninth Circuit and unlike Justice Kennedy, Justice Breyer would require a more complete explanation for the visa denial than the one provided to Din and Berashk. To the four dissenters, the consular officer's statement in this case (the citation to the statute's "terrorist activity" provisions) was inadequate because (1) the terrorist activity provision literally lists dozens of activities that can lead to the denial of a visa; and (2) there was no factual basis for the specific denial of a visa to this applicant. The dissent also rejected the idea that national security concerns justify the cryptic denial in this case.

Because there was no majority opinion, today's decision probably will not dramatically change the doctrine of consular non-reviewability. The debate between the Justices in this case was really about the scope of Din's constitutional right, not judicial review of a consular officer's decision. One would not be surprised if the Justices had the same-sex marriage case in the backs of their minds, with four Justices viewing the right more broadly than the plurality and Justices Kennedy and Alito refusing to join the narrow view of the right articulated by Justice Scalia.

However, the Court offers hints about the future of judicial review of immigration decisions. A majority of the Court is willing to allow some kind of review of consular officer visa decisions. Justice Kennedy's concurring opinion would allow for more deferential judicial review than Justice Breyer's dissent. However, both - representing six Justices in total - reviewed the consular officer visa denial in this case. Among the opinions, there was no ready defense of the doctrine of consular non-reviewability and no aggressive invocation of cases contrary to modern constitutional sensibilities such as Knauff and Mezei.

Today's decision could reasonably be read as reaffirming Kleindienst v. Mandel and continuing to allow some modicum of judicial review of consular visa decisions that implicate the rights of U.S. citizens. The Supreme Court's holding is consistent with its decisions for more than a decade vindicating some kind of judicial review in immigration cases.

June 5, 2015

Takeaways From the Facebook Threat and Title VII Head Scarf Cases Handed Down by the Court This Week

Cross-posted from Justia's Verdict.

On Monday, the Supreme Court handed down two cases, Elonis v. United States and EEOC v. Abercrombie & Fitch, that had received a lot of press in earlier stages of the litigations and that, judging from the briefs, posed important civil rights issues concerning freedom of speech and freedom of religion, respectively. Although the Court ended up resolving the two matters on relatively narrow grounds-disappointing some of the Justices as well as analysts-it is important to understand precisely what the Court did (and did not) hold in these two rulings, both of whose outcomes were decided by 8-1 votes. In the space below, I briefly discuss the two decisions individually and then side-by-side.

Elonis v. United States

Based on statements he posted on Facebook directed at, among others, his ex-wife, federal law enforcement officials, and school children, Anthony Elonis was convicted of violating federal criminal statutes that prohibit the interstate transmission of communications containing threats to injure other persons. For example, in referring to FBI officials (who had visited his home to interview him about his activities), Elonis wrote online (seemingly in rap-style cadence):

[T]he next time you know, you best be serving a warrant
And bring yo' SWAT an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb . . .
I was jus' waitin' for y'all to handcuff me and pat me down.
Touch the detonator in my pocket and we're all goin' BOOM!

In another posting, Elonis offered:

That's it. I've had about enough.
I'm checking out and making a name for myself.
Enough elementary schools in a ten mile radius to initiate the most heinous shooting ever imagined. . .
The only question is. . . which one?

In entries about his wife, Elonis wrote: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch . . . " And so forth.

At Elonis's criminal trial, the federal district judge instructed the jury that, for purposes of whether Elonis had issued threats prohibited by the statute, "[a] statement is a true threat [subject to prosecution] when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Elonis argued under both the First Amendment and also under the federal criminal statute he was charged with violating that, before a person can be punished for expressing a threat, the government must allege and prove that the defendant subjectively intended to threaten his victim. In other words, Elonis argued that the government needed to prove that he had some subjective state of mind with respect to the effect that his words would have on the individuals to whom they were directed, and not simply that he voluntarily uttered the words and should have known the effect those words would create.

The U.S. Court of Appeals for Third Circuit (along with a large number of other circuits) have rejected the idea that the First Amendment requires the government to prove any subjective state of mind in order to punish threats consistent with the First Amendment. Instead, the Third Circuit held that statements that are reasonably construed as threats by listeners can lawfully be punished. In contrast, the Ninth Circuit (and a number of state high courts) has read the First Amendment as requiring the proof of a subjective intent to threaten as a predicate to a prosecution for threatening speech.

When the Supreme Court granted review, most commentators expected it to weigh in on and resolve this divergence in the lower courts over what the First Amendment requires. But in its ruling three days ago, the Justices decided the case purely on the basis of the federal statute under which Elonis was prosecuted; the Court explicitly deferred any analysis or interpretation of First Amendment requirements. And under the federal statute at issue, the Court said, Elonis is correct that some subjective intent by the person uttering the alleged threat is required; negligence by the person issuing the threat (in the sense that he reasonably should have foreseen that his words would be interpreted as threatening) was not enough. Although Chief Justice Roberts's majority opinion conceded that there is no intent standard written into the text of the federal statute, the Court nonetheless found one based on the way similar statutes had been construed. The Court did not specify precisely what level of intent the federal government must prove-and explicitly left open the question whether recklessness (a conscious disregard of a known risk that words could cause fear) is enough for the government to prove, or instead whether a higher form of intent such as actual knowledge is needed-but reversed Elonis's conviction and sent the case back to the lower courts because negligence on his part was not adequate to support a conviction under the statute.

EEOC v. Abercrombie & Fitch

Samantha Elauf is a practicing Muslim who regularly wears a headscarf for religious reasons. When she applied for a job at an Abercrombie & Fitch (A&F) retail store, the A&F managers evaluating her candidacy declined to hire her because the wearing of head scarves violates an appearance (or "Look") policy A&F has; employees in retail positions are prohibited from wearing caps and other headwear. Prior to their decision not to hire Ms. Elauf, the A&F managers had internal discussions about her in which one of the managers who had some acquaintance with Ms. Elauf expressed the belief that Ms. Elauf wore headscarves because of her faith.

The Equal Employment Opportunity Commission sued A&F on Ms. Elauf's behalf, alleging that A&F had violated Title VII, which prohibits an employer from deciding not to hire an individual because of the individual's religious observance or practice, unless the accommodating the observance or practice would create an undue hardship for the employer. A&F argued, and the Court of Appeals for the Tenth Circuit agreed, that A&F should not be liable because "ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant . . . provides the employer with actual knowledge of his need for an accommodation."

The Supreme Court reversed. Justice Scalia, calling this a "really easy" case when he delivered the decision from the bench, authored the majority opinion which said a Title VII plaintiff need not show "actual knowledge [by the employer] of a conflict between an applicant's religious practice and a work rule," because requiring such actual knowledge would involve the Court "add[ing] words to the law to produce what is thought to be a desirable result [. . . , which] is Congress's province." He went on: "We construe Title VII's silence [as to the requirement of actual knowledge] as exactly that: silence."

But Justice Scalia did say that a Title VII plaintiff like Ms. Elauf had to show the employer's adverse action against the applicant was based at least in significant measure on a motive to avoid the religious accommodation. But how can an employer be acting based on a motive to avoid accommodating an applicant's religion practice-"because of" an applicant's religious observances, in the language of Title VII-if the employer doesn't know that the applicant's conduct requiring an accommodation is itself religiously based? Justice Scalia acknowledged, in an important footnote, that it "is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice," but that issue need not be decided in the A&F case because it has not been briefed by either side and because A&F "knew or at least suspected that the scarf was worn for religious purposes." Oddly enough, then, the majority opinion technically holds open the possibility that an employer who had no clue that a prospective employee's likely non-compliance with a work rule was religiously motivated could be held liable under Title VII, a result that Justice Alito in his separate concurrence rightly calls "very strange" and "surely wrong."

The Two Cases Taken Together

What can we say about these cases when we look at them in tandem? First, it is interesting that Justice Clarence Thomas is the lone dissenter in both decisions, and that he parted company with Justices Scalia and Alito (with whom he is often aligned as to result) on the interpretation of the federal threats statute and Title VII. Also, Justice Alito wrote separately for himself in both cases, decrying the minimalist nature of the majority's holdings. So, in both Elonis and Abercrombie & Fitch, Justice Scalia, Justice Thomas, and Justice Alito each had a different take from one another.

Second, both majority opinions conclude that Congress had not fleshed out in the text of the statute in question a requirement as to the defendant's subjective knowledge, but the Court reacted to that absence differently in the two cases. In Elonis, the Court said that because the statute is a criminal one, a wrongful state of mind on the part of the defendant should be found in the statute even when Congress was silent. But in Abercrombie & Fitch, Justice Scalia's majority opinion insists (to the extent that one can separate motive from knowledge) that Congress's silence as to the level of knowledge required of employers before they can be held liable is not something to be fixed by courts. The more ambitious attitude by the Court in the context of a criminal statute makes sense; there are special rules of statutory construction that apply particularly to laws that impose criminal sanctions.

But, and this is a third point, the criminal nature of the statute in Elonis might have properly led the Court to want to provide more notice to lower courts and potential defendants about precisely what level of subjective knowledge concerning the fear-inducing nature of words is required; the criminal law setting usually calls for clearer notice to be given to potential offenders. In particular, the disinclination by the Elonis majority to weigh in on whether recklessness by a defendant-e.g., a defendant who fleetingly wonders whether his proposed speech might cause fear in others but who never forms a view on the likelihood fear will in fact ensue-is sufficient under the statute, while perhaps understandable given absence of explicit lower court consideration of this matter, is sub-optimal. And, of course, because many statutes that criminalize threats are state statutes instead of federal laws, the question of whether and how the First Amendment requires government to prove any particular mental state of a defendant before criminal punishment may be imposed remains one on which the Supreme Court will need to give guidance. Indeed, in an earlier column I wrote previewing Elonis, I noted that it may not have been a good case in which to grant review precisely because the statutory ground could complicate the ability of the Court to give needed constitutional guidance. If this happened (as it did), I observed, the Court "would still need to rule in a later case on whether the First Amendment requires subjective intent (in the context of a federal or state statute that clearly does not require it.)"

The absence of guidance to lower courts and litigants in Abercrombie & Fitch is also quite frustrating, even though criminal liability was not at issue. On the facts of the Abercrombie & Fitch case, the employer "knew-or at least suspected-that the scarf was worn for religious purposes." But the tougher situation arises when the employer doesn't actually know but perhaps should be encouraged to find out, prior to declining to hire someone. For example, what if the A&F managers had no personal knowledge of Ms. Elauf during the interview process, but noted that she wore a head scarf and said to themselves, "Gee, I wonder if that is a style statement or a religious practice?" (In some respects, that could be thought of as "recklessness" but not knowledge on the part of the employer.)

Would the fact that the possibility of religious motivation even occurred to the employer be enough to trigger a requirement that the employer investigate the basis of the practice? Or would imposing such a duty on employers cause them to invade the religious privacy of employees and job applicants? (Courts in other countries that take religious liberty seriously often focus on religious privacy more than do American courts.) I do not know the answer to this, but I would observe that minority religious practices are often less well-known to many employers, a fact which might argue in favor of requiring employers to do some diligence once the possibility of a religiously inspired practice occurs to an employer. As for respecting privacy, there may be sensible ways to avoid making applicants feel uncomfortable. For example, all prospective employees could be given a list of all the employer's work rules and then asked, as a matter of course, whether religious practices would require accommodations with respect to any such rules. But this precisely the kind of detail the majority in Abercrombie & Fitch did not want to wade into. The reason it was a "really easy" case for the Court is that the Justices shied away from the difficult matters that actually needed some clarification.