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October 5, 2016

Lesley's Story

King Hall's Professor Lesley McAllister is an accomplished teacher and scholar of environmental law, natural resources law, food law, energy law, and property law. Sadly, our beloved colleague is also battling terminal cancer. Last year, she advocated for California's End of Life Option Act, which was signed into law by Governor Jerry Brown in October 2015 and took effect on June 9, 2016.

Professor McAllister recently shared her story with the magazine of her alma mater, Princeton Alumni Weekly (PAW). An excerpt:

"You may be interested in my story," the email read, "and if so, I could be interested in sharing it."

PAW hears from a lot of readers, but this message, received on the first morning of Reunions last May, jumped off the screen. Like hundreds of her classmates, Lesley McAllister '91 was returning to celebrate her 25th. Unlike them, she knew that the visit would likely be her last.

As she explained in her message, the 46-year-old mother of two and law professor at the University of California, Davis, is fighting metastatic cancer, a fight she is certain to lose. Radiation treatments over the summer have robbed her of her hair, which had grown back since her first round of chemotherapy two and a half years ago, shortly before an operation to remove her cancerous right lung. Surgery to remove lesions on her adrenal gland, liver, and pancreas left her with debilitating pancreatitis and a wound that has not fully healed. Once an avid hiker, she now moves slowly and speaks in little more than a whisper until her pain medications kick in.

McAllister's days are numbered, but the uncertainty surrounding that certainty is part of cancer's cruelty. In his posthumously published memoir, When Breath Becomes Air, Stanford University neurosurgical resident Paul Kalanithi wrote, "Before my cancer was diagnosed, I knew that someday I would die, but I didn't know when. After the diagnosis, I knew that someday I would die, but I didn't know when. But now I knew it acutely." That is where McAllister sits now.

To read the full article, simply titled "Lesley's Story," visit https://paw.princeton.edu/article/lesleys-story.

October 4, 2016

Professor Reynoso Discusses "Chicana/o Political Consciousness: Yesterday and Today"

This evening at Sacramento City College, Professor Emeritus Cruz Reynoso appeared on a panel on the Chicana/o rights movement.

Here is the event description: "The Mexican/Chicana/o Movement in Sacramento from the 1960s through the 1980s linked civil and political rights with social, economic, and cultural rights. It was an age of vibrant Mexican/Chicana/o activism and leaders saw themselves as a critical part of the national Chicana/o Movement. The panelists will discuss their personal experiences during the Movimiento."

September 30, 2016

Does JASTA Violate International Law?

Cross-posted from Just Security.

The Justice Against Sponsors of Terrorism Act (JASTA) is now the law of the United States, Congress having overridden President Obama's veto of the bill. Among other things, JASTA amends the Foreign Sovereign Immunities Act (FSIA) by adding a new terrorism exception that is not limited to designated state sponsors of terrorism. The European Union has claimed that JASTA "conflict[s] with fundamental principles of international law and in particular the principle of State sovereign immunity." Because the version of JASTA that is now law differs significantly from the version I considered back in April, it is worth taking a fresh look at whether JASTA violates international law.

The United States has had a terrorism exception in the FSIA since 1996, the current version of which is found at Section 1605A of Title 28 of US code. Section 1605A provides that a foreign state shall not be immune from suits seeking money damages for personal injury or death caused by certain acts like torture and extrajudicial killing-or material support for such acts-by foreign government officials. But this provision is limited to countries designated by the United States as state sponsors of terrorism (currently Iran, Sudan, and Syria).

The new terrorism exception added by JASTA is not limited to state sponsors of terrorism, but it is limited in other ways. The new Section 1605B provides that a foreign state shall not be immune from suits seeking money damages for personal injury or death, or for injury to property, occurring in the United States that is caused by (1) "an act of international terrorism in the United States;" and (2) a tortious act of a foreign state or its officials "regardless where the tortious act or acts of the foreign state occurred." The tortious act of a foreign state may not, however, be an omission or "constitute mere negligence." 

It is clear that customary international law requires states to recognize foreign sovereign immunity in at least some cases. In the Jurisdictional Immunities Case (Germany v. Italy), for example, the International Court of Justice (ICJ) held that international law requires immunity with respect to torts committed by armed forces during an armed conflict (para. 78). Customary international law rules of immunity-like customary international law rules more generally-must be based on a general and consistent practice of states followed out of a sense of legal obligation or opinio juris (para. 55). States may, of course, go further than international law requires and grant foreign states more immunity from suit as a matter of comity. But "the grant of immunity in such a case is not accompanied by the requisite opinio juris" and therefore does not establish rules of customary international law. See id. Looking at the practice of states with respect to foreign sovereign immunity, it is not always easy to tell where international law stops and international comity begins.

Like many other nations, the United States follows a restrictive theory of foreign sovereign immunity, under which the immunity of foreign states does not extend to their private and commercial acts (acta jure gestionis) but generally does extend to their governmental acts (acta jure imperii). But "generally" does not mean "invariably." The FSIA contains a number of exceptions to immunity that may apply to the governmental acts of foreign states, including the expropriation exception (Section 1605(a)(3)) and the territorial tort exception (Section 1605(a)(5)). The ICJ has also been careful not to hold that the line between immunity and no immunity neatly tracks the line between governmental and non-governmental acts. In Jurisdictional Immunities, it noted at paragraph 64 that "none of the national legislation which provides for a 'territorial tort exception' to immunity expressly distinguishes between acta jure gestionis and acta jure imperii."  And at paragraph 65, the ICJ limited its holding in that case to armed forces during armed conflict, leaving open the question whether other governmental acts might not be covered by immunity. So even if acts of terrorism or providing material support for acts of terrorism were properly considered governmental, such a classification would not by itself entitle those acts to immunity under international law.

Focusing on the new terrorism exception more specifically, there appears to be no general and consistent practice of states followed out of a sense of legal obligation establishing that foreign states are entitled to immunity for acts of terrorism or material support of such acts. To be sure, most states that have statutes governing foreign sovereign immunity do not have exceptions for terrorism. But it is not clear that the states extending foreign sovereign immunity to cover terrorist acts do so out of a sense of legal obligation. Again, as the ICJ noted at paragraph 55 in Jurisdictional Immunities, unless state practice is "accompanied by the requisite opinio juris," it does not establish a rule of customary international law. Significantly, there are two states-the United States and Canada-that do have terrorism exceptions in their foreign sovereign immunity laws. A terrorism exception has been part of U.S. law since 1996 and part of Canadian law since 2012, and neither exception, to my knowledge, has provoked the sort of widespread protests from other nations that one might expect in the case of a clear violation of customary international law. Perhaps that will change with JASTA's new terrorism exception, and such protests would provide new evidence relevant to the international law question. But the lack of protests prior to JASTA is more evidence that a terrorism exception does not violate customary international law.

Critics might point out that Canada's terrorism exception and the old U.S. exception were both limited to designated state sponsors of terrorism, while JASTA's new exception is not. Certainly this difference may be relevant to whether the new exception is good policy, as President Obama pointed out in his veto message. And this difference might also provoke new protests from other states, which would provide more evidence of customary international law regarding terrorism exceptions. But it is hard to see how this difference determines whether JASTA violates customary international law or not. Foreign sovereign immunity typically turns on the nature of the act, and international law does not typically dictate the particular processes a state must use to grant or deny such immunity. If customary international law allows the United States and Canada to deny foreign sovereign immunity when they have designated a particular country as a state sponsor of terrorism, it is not because the United States and Canada have satisfied some customary international law requirement with respect to designation. It is rather because customary international law does not require foreign sovereign immunity for terrorist acts in the first place.

Although new Section 1605B is written as a terrorism exception, it also finds support in the exception-well established under customary international law-for territorial torts. Recall that while Section 1605B does permit a suit for damages to be based on the tortious acts of a foreign state or its officials outside the United States, it also requires both conduct and injury inside the United States-specifically, "an act of terrorism in the United States" and injury or death "occurring in the United States." In Jurisdictional Immunities, the ICJ recounted the extensive state practice establishing an exception to foreign sovereign immunity for torts occurring in the forum state, although the Court also found that this exception did not extend to the activities of armed forces during armed conflicts. (See paragraphs 64-79.) Specifically, the ICJ noted that while the territorial tort exception had "originated in cases concerning road traffic accidents and other 'insurable risks,'" national legislation codifying the exception was written in more general terms (para. 64). Prior to JASTA, U.S. courts had adopted an "entire tort" interpretation of the FSIA's territorial tort exception (§ 1605(a)(5)), requiring that not just the injury but also all of the tortious conduct have occurred in the United States. But it is not clear that such a limitation is required by customary international law. Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Properties, for example, 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. And it may be that the U.N. Convention is in fact more generous with immunity than customary international law requires.

In a previous post, I noted that there are various approaches to organizing state practice with respect to foreign sovereign immunity. The results may depend heavily on the baselines from which one begins and the levels of generality at which one reads state practice. Fully addressing those questions would require far more space than this post allows, but perhaps one observation may be made. In determining the customary international law of foreign sovereign immunity with respect to armed forces during armed conflict in Jurisdictional Immunities, the ICJ considered that "the most pertinent State practice is to be found in those national judicial decision which concerned the question whether a state was entitled to immunity in proceedings concerning acts allegedly committed by its armed forces in the course of an armed conflict" (para. 73). The Court found an almost unbroken practice of judicial decisions extending such immunity, even when the acts were committed on a state's own territory (paras. 73-77). There is no similarly unbroken practice of forum states extending immunity to foreign states that provide support for terrorist acts causing injury and death within the forum state.

Powerful arguments have been made that JASTA is bad policy, that it will not in fact help the victims of the 9/11 attacks, and that it will hurt our relations with important allies. I am not disputing those points. My only claim here is that JASTA does not clearly violate customary international law.

September 27, 2016

What’s the Right Comity Tool in Vitamin C?

Cross-posted from Opinio Juris.

American law has many doctrines based on international comity-doctrines that help mediate the relationship between the U.S. legal system and those of other nations. The Second Circuit's decision last week in the Vitamin C Antitrust Litigation case correctly identified an international comity issue. But did it choose the right comity tool to address that issue?

Plaintiffs alleged that defendants, two Chinese companies, participated in a cartel to fix the price of vitamin C exported to the United States in violation of U.S. antitrust law. Defendants did not deny the allegations, but argued that Chinese law required them to coordinate export prices. The Chinese Ministry of Commerce backed the defendants in an amicus brief explaining Chinese law. The district court, however, declined to defer to the Ministry's interpretation of Chinese law, awarding the plaintiffs $147 million in damages and permanently enjoining the defendants from further violations of U.S. antitrust laws.

On appeal, defendants argued that the district court should have dismissed on grounds of foreign state compulsion, international comity, act of state, and political question. While the political question doctrine rests on separation of powers, the other three grounds are all doctrines of prescriptive comity. As I have explained in a recent article, American law is full of international comity doctrines, each with its own specific requirements.

To avoid confusion, it is worth noting at the outset that although the Second Circuit repeatedly framed the question as whether the district court should "abstain from exercising jurisdiction," Vitamin C was clearly not an international comity abstention case. International comity abstention is a doctrine of adjudicative comity, or deference to foreign courts. The Second Circuit has held that it is available only if parallel proceedings are pending in a foreign court. See Royal & Sun Alliance Ins. Co. of Canada v. Century Intern. Arms, Inc., 466 F.3d 88, 93-94 (2d Cir. 2006). The same is true in most other circuits that have adopted the doctrine (the cases are collected here at pp. 2112-14). The main exception is the Ninth Circuit, whose decision in Mujica v. Airscan Inc., 771 F.3d 580 (9th Cir. 2014), applied a broad and uncertain comity abstention doctrine that conflicts with its own precedents, those of other circuits, and even the Supreme Court's. Because no parallel antitrust claims against these defendants were pending in Chinese courts, international comity abstention would not have been an appropriate ground on which to dismiss this case.

Instead, the Second Circuit properly viewed the Vitamin C case as raising questions of prescriptive comity-deference to foreign lawmakers-which U.S. law has developed a number of different doctrines to address (for discussion see here at pp. 2099-2105). The court relied particularly on an interest-balancing, comity doctrine commonly associated with Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976), Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979), and Section 403 of the Restatement (Third) of Foreign Relations Law. In the court's view, this doctrine authorized it to "balance the interests in adjudicating antitrust violations alleged to have harmed those within our jurisdiction with the official acts and interests of a foreign sovereign in respect to economic regulation within its borders" (slip op. at 4). The idea that U.S. courts are institutionally capable of balancing the interests of foreign governments against our own has the subject of significant criticism over the past three decades.

Moreover, it is hard to see how this particular prescriptive comity doctrine survives the Supreme Court's later decisions in Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993), and F. Hoffmann-La Roche Ltd. v. Empagran, S.A., 542 U.S. 155 (2004), both of which declined to apply a multi-factor balancing approach in antitrust cases. The Second Circuit read Hartford "narrowly" (slip op. at 20) not to preclude such an approach, particularly when compliance with both U.S. and foreign law was impossible. But the Second Circuit did not even mention Empagran, which expressly rejected case-by-case balancing as "too complex to prove workable." Empagran recognized that ambiguous statutes should be construed "to avoid unreasonable interference with the sovereign authority of other nations," but it also said in no uncertain terms that "application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused." Plaintiffs unquestionably alleged domestic antitrust injury in Vitamin C, making the application of U.S. law reasonable and consistent with prescriptive comity, at least has the Supreme Court has understood these concepts in the antitrust context.

The act of state doctrine is a separate and distinct manifestation of international comity, requiring that the acts of foreign sovereigns performed within their own territories be deemed valid. But the Supreme Court has made clear that the act of state doctrine applies only when a U.S. court must "declare invalid, and thus ineffective as 'a rule of decision for the courts of this country,' the official act of a foreign sovereign." W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., International, 493 U.S. 400, 405 (1990). To find that the defendants fixed the price of vitamin C, the district court did not have to find any part of Chinese law invalid or even to evaluate the conduct of the Chinese government. It only had to find that Chinese law did not immunize the defendants' own conduct from liability under U.S. law.

The best fitting tool to address the prescriptive comity issue in Vitamin C would seem to be the doctrine of foreign state compulsion (also known as foreign sovereign compulsion), which sometimes allows a U.S. court to excuse violations of U.S. law on the ground that the violations were compelled by foreign law. That is precisely what defendants had argued in this case. Although the exact contours of this doctrine are uncertain, the U.S. government has recognized it as a defense in antitrust cases. See Antitrust Enforcement Guidelines for International Operations ¶ 3.32 (1995). China represented that its law compelled the defendants to coordinate export prices for vitamin C, and the Second Circuit considered itself bound by China's interpretation of its own laws (slip op. at 30), which seems reasonable at least in these circumstances.

Unfortunately for the defendants, there are at least two potential problems with foreign state compulsion in this case. First, it appears that defendants may have asked the Chinese government to mandate their price fixing. See slip op. at 36-37. At least some authority suggests that a defendant wishing to claim foreign state compulsion as a defense must try in good faith to obtain relief from the compulsion from the foreign state. See, e.g., Societe Internationale v. Rogers, 357 U.S. 197, 208-09, 213 (1958). Second, it appears that defendants may have fixed prices at levels higher than those mandated by the Chinese government. See slip op. 38. The Second Circuit found this irrelevant to its "comity" analysis but seemed to acknowledge that such facts would preclude a foreign compulsion defense. See id.

U.S. courts have many tools at their disposal to address international comity issues. But sometimes no tool fits. "International comity" is not a universal wrench offering unlimited judicial discretion to dismiss cases that seem problematic. It is a principle underlying specific doctrines, with specific requirements, developed over many years to keep judicial discretion within bounds.

September 16, 2016

A New Look at Design Law

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

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

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

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

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

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

September 15, 2016

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

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


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

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

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

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

September 9, 2016

Interview with Professor Emeritus Edward J. Imwinkelried

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

Here is an excerpt:

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

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

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

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

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

September 9, 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

September 1, 2016

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

Cross-posted from Immigration Prof Blog.

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

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

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

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

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

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

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

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

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

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

4.    Pass legislation to prohibit "sanctuary cities." 

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

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

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

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

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

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

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

August 12, 2016

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

Cross-posted from NYU Law Review.

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

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

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