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October 28, 2015

Campus Community Book Project and Addressing "The Divide"

Is this the "Age of the Wealth Gap?"

Investigative reporter and Rolling Stone contributor Matt Taibbi says yes. His New York Times bestselling book, "The Divide: American Injustice in the Age of the Wealth Gap," is the featured work in this year's UC Davis Campus Community Book Project.

It was my pleasure last week to take part in the first of three book events at the School of Law: a panel discussion titled "Addressing 'The Divide' - 'If You Cannot Afford One...': Access to Legal Counsel in the Age of Inequality." Speakers included Yolo County Deputy Public Defender Ronald Johnson '04, Legal Services of Northern California (LSNC) Executive Director Gary Smith, and LSNC Deputy Director Julie Aguilar-Rogado.  As lawyers and professors involved in serving, researching and/or teaching about low-income populations and access to justice issues, we all agreed that little about Taibbi's book surprised us, even though Taibbi wrote as if he were shocked by his findings.  

Ron Johnson '04, Gary Smith, Julie Aguilar-Rogado, and me

Among the topics we discussed were the civil justice gap between wealthy folks and those who qualify for legal assistance from legal aid organizations such as LSNC, which is funded in part by the Legal Services Corporation.  Smith and Aguilar-Rogado described how LSNC is not only providing direct services to low-income populations in the 23-county area they serve in Northern California, but how they are also pro-actively seeking enforcement of many laws that can assist the poor.  In a sense, LSNC is acting as a private attorney general in advocacy to compel counties to live up to statutory mandates that would benefit low-income populations.  I talked about the rural-urban justice gap, including the shortage of lawyers serving rural counties generally, and low-income rural residents in particular.  Our talented alum Ron Johnson spoke about his decade of experience as a public defender.  In particular, he talked about some of the particular struggles facing many who are caught up in the criminal justice system, problems including joblessness, poverty, and mental illness.  Johnson observed that we need to devote more attention to such root causes of crime and mentioned that his office has social workers -- and not only lawyers -- to assist the clients.  

Two more Campus and Community Book events will be held at King Hall. On November 2, the clinical faculty will discuss the human impact of criminal and immigration detention. Then, on February 1, Professors Elizabeth Joh and Thomas Joo will discuss structural inequality in American policing and prosecution. 

For a full list of the book events across campus, visit The events will conclude with an appearance by author Matt Taibbi at the Mondavi Center on February 3, a talk I am very much looking forward to hearing.

October 23, 2015

Speaking at Case Western Law Review Symposium on Whren v. United States

I traveled to Cleveland this week to participate in the Case Western Law Review's symposium on the 20th anniversary of the Supreme Court's major traffic stop decision, Whren v. United States. The decision let stand a criminal conviction based on a traffic stop that appears to have been based on race.  The participants considered whether the Whren decision has resulted in systematic racial bias in the criminal justice system. My paper, "Race-Based Law Enforcement: The Racially Disparate Impacts of Crimmigration Law," considers how the current practice of deporting noncitizens with criminal problem, including simple arrests as well as convictions, results in the overwhelming percentage of the immigrants removed from the United States (96%) are Latino even though they comprise a much smaller part of the immigrant -- legal and undocumented -- population.  Removal disparities are a collateral consequence of the racial profiling in law enforcement permitted by the Supreme Court in Whren.  

It was an energizing conference and I loved the opportunity to participate.

October 9, 2015

Testifying on Drought Relief Bills before the U.S. Senate Energy and Natural Resources Committee

I just returned from Washington, D.C., where I testified before the Energy and Natural Resources Committee of the U.S. Senate in a hearing on drought relief bills H.R. 2898 & S. 1894. While in the nation's captal, I also met with Congressman John Garamendi (D-Fairfield), former Deputy Secretary of the Interior, to discuss those bills and other potential drought relief measures.

Here is text of my testimony on October 8:

Chairman Murkowski, Ranking Member Cantwell and members of the Committee, thank you for the opportunity to testify on the two "California drought relief" bills currently pending before this Committee: H.R. 2898 and S. 1894.

I am Richard Frank, Professor of Environmental Practice and the Director of the California Environmental Law & Policy Center at the University of California, Davis School of Law.  Before I joined the U.C. Davis Law School faculty in 2011, I served as the Executive Director of the U.C. Berkeley School of Law's Center for Law, Energy and the Environment.  At these law schools, I have taught courses on Water Law, California Environmental Law & Policy, Environmental Enforcement, Climate Change Law & Policy, Ocean & Coastal Law, the California Delta, Natural Resources Law and related topics.  Much of my research and writing has focused on water law and policy in California and the American West, climate change mitigation and adaptation law and strategies, environmental regulatory policy and private property rights.

Before my academic appointments at U.C. Davis and U.C. Berkeley Schools of Law, I worked for 30 years as a practicing attorney at the California Department of Justice, where I represented the People of the State of California and various state agencies, departments, boards and commissions focused on environmental regulation and natural resources management.  At the time of my retirement from the Department of Justice in 2006, I served as the California Attorney General's Chief Deputy Attorney General for Legal Affairs.

Since leaving state government in 2006, I have been appointed to and have served on various California state advisory boards and commissions.  Most relevant to this testimony, in 2007 former California Governor Arnold Schwarzenegger appointed me to the Delta Vision Blue Ribbon Task Force.  I served on that body from 2007 until it concluded its work and reported its findings to the Governor and California Legislature in late 2008.

General Comments & Overview

With the beginning of a new "water year" on October 1st, California has now officially entered its fifth consecutive year of drought.  The length and intensity of that drought are unmatched in California's 165-year state history.

The current drought has severely tested California's people, economy, environment and political system.  The good news is that California's political leaders, water managers and general citizenry have responded remarkably well, under exceptional circumstances, to the unprecedented challenges presented by the drought.  With a few exceptions noted below, and through their own, unprecedented conservation efforts, the state's 39 million residents have been able to obtain the water necessary to meet their basic human needs.  Perhaps counter-intuitively, the current drought has not impeded California's remarkable and steady recovery from a protracted economic recession.  Indeed, the state's robust economic recovery began roughly at the same time the current drought began in 2011.[1]  In contrast, however, California's environmental resources have not fared nearly as well in the face of the present drought.

A key factor in ameliorating some of the potential adverse effects of the current, protracted drought is the work of federal, state, regional and local water managers in California.  Most relevant to this hearing, federal and state water managers have collaborated closely and well in managing the Central Valley Project and the State Water Project under daunting circumstances and chronic, multiyear shortages.  This, in turn, is due in no small measure to their ability to manage and coordinate the operation of those systems in real-time, on a day-by-day basis.  (California Secretary of Natural Resources John Laird has made the same point in recent written communications with Congress.)  That's an important, overarching principle-one that any new federal drought response legislation should promote, rather than impede.

At the same time, the rather impressive record of California drought response to date should not lead to a false sense of complacency.  Nor should reports of an El Nino winter that could conceivably end-or at least put a significant dent in-California's current drought.  That's because most climate scientists, meteorologists and climate modelers warn that a pattern of future droughts is likely to occur.  Further, they caution that the severity of the state's current and protracted drought may actually be replicated in future years.  I.e., California's present drought may well not be an aberration but, instead, a harbinger of a more water-challenged future--not only for California, but also for other portions of the American West.

Accordingly, it seems appropriate for Congress to consider any proposed federal drought legislation not simply as a one-time response to California's current drought but, rather, with an eye toward the "new normal" of recurrent droughts exacerbated by projected climate change.

H.R. 2898

Several features contained in H.R. 2898 appear to have merit.  For example, the bill's requirement that the feasibility of various new surface storage facilities be studied, and that those feasibility studies be concluded and published in the near future, makes considerable sense.  Several of these proposals have been hotly debated in the abstract, without focusing on their cost, engineering feasibility, etc.  It's high time for an objective review of those projects' relative merits, so that federal and state policymakers can determine whether they "pencil out" and make environmental sense.

Similarly, the bill's proposed sections 203 and 204, which would undertake studies of invasive species and predator control, represent worthwhile initiatives.  Invasive species present a clear and present ecological danger to the California Delta's native species and ecosystem.  They have also resulted in economic hardship to many people and businesses in the Delta.  Federal research, pilot projects and monetary support to combat that problem would be most welcome.

Finally, environmental review of proposed emergency response efforts to address the drought can and should be expedited when it is reasonably possible to do so.  The National Environmental Policy Act (NEPA) and implementing regulations promulgated by the President's Council on Environmental Quality provide the flexibility to shorten the time periods to complete NEPA review in emergency circumstances.  Many of H.R. 2898's proposed "fast-tracking" and disclosure provisions in this regard-when invoked in connection with the federal government's emergency drought response efforts-seem appropriate.  One particularly welcome feature of proposed section 805 requires the Secretary of the Interior to adopt "Transparency Reporting" via creation of an electronic database to make publicly available documents associated with the government's NEPA compliance efforts.  Such a reform is overdue. 

On the other hand, H.R. 2898's proposal to reduce the public comment period under NEPA for drought response projects to 60 days-or, in some cases, as little as 30 days--is unwise.  One of the overarching purposes of NEPA is to allow the interested public a meaningful opportunity to participate in the environmental decision-making process.  Given the cost, complexity and magnitude of many potential federal drought response projects, these abbreviated comment periods seem unreasonably short.  Similarly, proposed section 305 would authorize the Secretary to "deem a project in compliance with all necessary environmental regulations and reviews" if s/he determines that immediate project implementation is required to address "a specific and imminent loss of agriculture production upon which an identifiable region depends..." That provision would create a new statutory exemption from otherwise-applicable NEPA, ESA and related environmental review that appears both unprecedented and ill conceived.

Other provisions of H.R. 2898 seem equally problematic.  Perhaps of greatest concern are the bill's significant modifications to the Biological Opinions that federal wildlife experts have fashioned for listed Delta smelt and salmonids adversely affected by operation of the Central Valley Project and State Water Project.  Those Biological Opinions were developed over a period of years by those experts, pursuant to the mandates of the Endangered Species Act.  The Bi-Ops were challenged in protracted litigation brought by agricultural interests and Central Valley water districts against federal wildlife agencies.  They were ultimately upheld in now-final decisions of the U.S. Court of Appeals for the Ninth Circuit.  With respect, permanent federal legislation is not the appropriate means of making changes to the Biological Opinions-certainly not the substantial revisions contemplated by H.R. 2898.  These provisions of the bill would set a most unfortunate precedent and further politicize implementation of the ESA's legal mandates.  

More specifically, H.R. 2898's provisions would require a level of precision in sampling of fish and water quality (.e.g., turbidity) that doesn't currently exists and may well be unavailable in the future, given the present resources federal wildlife agencies have available.  And by specifying the actions which they must take, the bill eliminates the ability of those wildlife agencies to utilize adaptive management strategies-or perform much management of listed species at all.

A related, major concern is H.R. 2898's proposed section 313, which would repeal the federal government's previous approval of the so-called San Joaquin River Settlement.  That settlement resolved 18 years of protracted litigation over restoring flows to the dewatered San Joaquin River and-as approved by Congress-forged a legal and political compromise that promised to restore California's second largest river to some modicum of environmental health.  Repealing federal approval of that settlement would undoubtedly result in the parties returning to their litigation foxholes, recommencing the litigation, and thus resulting in additional expense, delay and uncertainty.  Such a course will ultimately benefit no one.  It will instead open a renewed front in California's "water wars" that is contrary to the broader public interest-not to mention the environmental health of a vital state waterway and extensive riparian corridor.

Proposed section 602 would amend the Central Valley Improvement Act of 1992 (CVPIA) by creating a new Restoration Fund Advisory Board.  In principle, convening a group of stakeholders for this purpose would seem uncontroversial.  But the makeup of the proposed advisory board is extremely unbalanced, heavily dominated by CVP agricultural users, power contractors and municipal and industrial users, rather than reflecting a balanced representation of all relevant stakeholders.  That imbalance is especially troubling given the CVPIA's environmental objectives, as clearly articulated by Congress over two decades ago.

There are numerous other, specific flaws contained in H.R. 2898.  Let me nevertheless focus on three thematic deficiencies of the bill.  First, this proposed legislation reflects a "top-down" federal drought response strategy-one that would override Endangered Species Act protections for threatened and endangered species and one that runs counter to principles of cooperative federalism.  There is perhaps no aspect of American environmental and natural resources policy that requires a more collaborative federal-state relationship than water management in the American West.  In recent years, federal and California state water managers have developed a strong partnership designed to jointly manage an extreme drought in real-time.  H.R. 2898 threatens that model of cooperative federalism in a way that, if enacted, will prove counterproductive and undermine the state-federal relationship in water management.

Second, H.R. 2898 represents a legislative effort to re-allocate finite water resources by taking water from environmental programs and transferring them to agricultural purposes.  Whatever the wisdom or folly of that policy choice, a preferable strategy would be to "expand the pie" by creating additional water resources in the form of recycling, re-use, desalination and conservation projects, among other strategies.  That approach is notably absent from H.R. 2898.

Third and finally, one thing all relevant stakeholders in California water policy-including agricultural interests--desire and need is greater certainty.  H.R. 2898, by contrast, would appear to inject greater uncertainty into the operation of California's federal and state-operated water systems at a time when the drought is already creating unprecedented strains on those systems.

S. 1894

S. 1894 builds on and improves upon some of the above-described, positive aspects of H.R. 2898.  At the same time, S. 1894 lacks many of the deficiencies of the House bill.  As a threshold matter, S. 1894 is by its terms a temporary measure, which seems appropriate under the present circumstances.  H.R. 2898, by contrast, represents permanent legislation.

The Senate bill, unlike its House counterpart, embodies the "expand the pie" policy noted and endorsed immediately above.  Title III of S. 1894, dealing with "Long-Term Water Supply Projects," quite appropriately focuses on desalination and water reuse.  Section 301 of the bill declares that "climate change and drought resiliency require additional water supply projects to cope with higher probabilities of longer more intense droughts."  Those contemplated water projects are not limited to surface water storage facilities, but also include water recycling, desalination, storm water capture, agricultural and urban water conservation strategies, etc.  S. 1894 incorporates an ambitious program of federal grants to promote and facilitate such projects, thereby "expanding the pie" of available water supplies rather than simply reallocating a portion of finite surface water resources from one important use (environmental purposes) to another (agriculture).

Similarly, and like H.R. 2898, S.1894 seeks to "jump start" and ensure timely completion of several hotly debated surface storage proposals.  But the Senate bill improves upon the House version by expanding the scope of the prescribed feasibility studies to include such additional/alternative water storage strategies as raising existing dam and reservoir systems, increasing groundwater storage, and expanded water conservation initiatives. 

Increasing existing surface reservoir capacity when it is feasible to do so makes sense-especially given the fact that climate scientists warn that future reductions of the Sierra Nevada snowpack (California's largest, natural "reservoir") are a virtual certainty.  And cutbacks in available surface water deliveries from the CVP and SWP have led many agricultural water users to replace that supply through expanded groundwater pumping.  These unprecedented levels of groundwater pumping-especially in California's San Joaquin Valley--have resulted in chronic overdraft of many of California's already-overtaxed groundwater basins.  Therefore, groundwater basin replenishment feasibility studies, as envisioned in S. 1894, provide another type of water storage strategy that can in many cases be achieved at far lesser cost and with fewer adverse environmental impacts than new surface water storage projects.  Such groundwater replenishment projects have the additional, salutary effect of helping to remedy some of the adverse effects of current groundwater overdraft practices, such as subsidence.[2]

Another positive feature of S. 1894 is its focus on California "drought-stricken communities."   (See section 323.) While most Californians have enjoyed uninterrupted water supplies for domestic uses despite the current drought, there are some notable and most unfortunate exceptions.  In some of the most impoverished portions of the state-particularly in rural portions of the eastern San Joaquin Valley-small community water districts wholly dependent on groundwater have recently had their wells run dry.  That is due in major part to the fact that larger agricultural and urban districts are drilling new, deeper wells that deplete the groundwater aquifers and render useless the shallower, pre-existing community water system-owned wells.  S. 1894 notes that nearly 2000 community water service wells in California, which had previously served approximately 10,000 state residents, are now dry.  The affected residents have been reduced to subsisting on delivered bottled water.  S. 1894 appropriately includes as part of its federal drought response strategy financial assistance designed to remedy this economic hardship and environmental injustice.

Of critical importance, a key difference between the two bills is that S. 1894 does not legislate significant revisions to and partial repeals of the Endangered Species Act affecting California.  I.e., the troublesome, ESA-related provisions in H.R. 2898 referenced above are notably absent from the Senate bill.

Finally, S. 1894 is superior to H.R. 2898 in that it better reflects the cooperative federalism model upon which successful federal-state water management and drought response depend.  One prominent example is S. 1894's inclusion of federal financial support for California state and federal "drought resilience projects."  Sections 401-412.  The Senate bill similarly offers federal support-on a cost-sharing basis--for integrated water management strategies that California water districts are beginning to pursue and that need to be further incentivized.  See section 421.  And S. 1894 is careful to emphasize that it does not seek to displace or modify longstanding water rights protected under California state law.  See, e.g., section 113.  The bill affords similar comity to state water quality and related laws.  Ibid.


For the foregoing reasons, I believe the Committee should approve S. 1894 and decline to approve H.R. 2898.

I am grateful to the Committee for the opportunity to testify on this most important and timely subject.  I would be pleased to respond to any questions members of the Committee may have.


[1] Several of my U.C. Davis faculty and research colleagues recently published an academic study concluding that California agriculture has shared in this recent economic prosperity.  That August 2015 report, prepared for the California Department of Food and Agriculture, indicates that the state's $46 billion-a-year agricultural output remained robust through a fourth year of drought, even in the face of significant surface water delivery cutbacks from the CVP and SWP.  See,

[2] S. 1984 could actually be improved by more heavily and explicitly incorporating groundwater storage as an important, long-term drought response strategy for California.  Many experts believe that groundwater storage strategies are more promising and cost-effective than new surface storage projects.  Meanwhile, H.R. 2898 wholly ignores groundwater storage options, and focuses exclusively on surface water projects.


October 8, 2015

Book Review on "Dream Chasers: Immigration and the American Backlash by John Tirman"

Cross-posted from Immigration Prof Blog.

Dream Chasers: Immigration and the American Backlash
by John Tirman, The MIT Press 2015, 230 pages

In eight tight chapters, John Tirman's Dream Chasers sparks a fresh look at an issue that continues to dominate the airwaves and print media. Anyone struggling to come to grips with immigration reform will gain insight from this thoughtful book, which sheds light on the nuances about immigration that hide behind the headlines.

The title of the book plays on what John Tirman sees as the competing "dreams" of America: immigrant dreams of opportunity and freedom; and the vision of many Americans who demand immigrant linguistic, cultural, and other assimilation. As the contrasting dreams suggest, the book views the immigration debate as part of "an epic culture clash.": "The rejectionists who are particularly vociferous about the cultural wounds they think illegal immigration visits upon the United States, are the same rejectionists on health-care reform, measures to deal with climate change, financial sector reform, economic stimulus, and so on."

Ably capturing the national divide over immigration in the modern United States, Dream Chasers demonstrates that the issue goes well beyond law and race. Over the course of eight concise chapters, Tirman, executive director of MIT's Center for International Studies, summarizes the economic, cultural, legal, and political considerations implicated in the modern debate over immigration.

The book opens by comparing the "Great Migration" (1910 to 1970) of African Americans from the South to the Northeast, Midwest, and West to today's "Second Great Migration" of Mexican and Central American immigrants to the United States. A later chapter provides an overview of the history that has shaped outmigration from Mexico and Guatemala. Economic opportunity in the United States (combined with limited avenues for lawful immigration), poverty in their homelands, and violence (especially brutal and widespread for decades in Guatemala) have fueled migration from those countries. In addition, U.S. foreign policy, from political support for anti-communist leaders to the promotion of global capitalism (and the United Fruit Company), played an important role in creating the political, economic, and social circumstances contributing to the pressures for migration from Latin America.

Dream Chasers also looks at Arizona's toxic political climate surrounding immigration, with the state starting a national trend with its extreme immigration enforcement law known as SB 1070. Tirman views the battle over ethnic studies in the Tucson public schools as a "culture clash ..., at root, about the enormous flow of immigrants across the US-Mexico border." Put simply, the ethnic studies controversy is a minor skirmish in the war over Latino immigration.

Tirman then reviews immigration enforcement through the examination of the U.S. government's immigration raid of a textile factory in New Bedford, Massachusetts, "a struggling ... city of immigrants." (p. 68). In the raid, federal authorities arrested hundreds of workers-the majority who were women from Guatemala-and created a humanitarian crisis when many of their children who were U.S.-born citizens, returned from school or day care to find homes without a parent. Activists, lawyers, a Catholic Church (Our Lady of Guadalupe), and state and local governments responded to the aftermath of the raid, which was followed with the detention of those arrested out of state where many had no access to lawyers.

After describing the excesses of contemporary immigration enforcement, Dream Chasers considers the possibilities for reform. Chapter 4 offers fresh analysis of the coming of age of the DREAMers, college students brought to this country by their parents, and their creation of a cohesive, independent, and powerful political movement. They became the "poster children ... high school valedictorians, star athletes, and soldiers" for immigration reform, pushing for passage of the DREAM (Development, Relief, and Education for Alien Minors) Act. They "make visible the hidden, make appeals for justice, plead that the raids and deportations stop, advocate for plausible solutions." They have become nothing less than the nation's immigration conscience. The DREAMers' political movement helped bring about a major reform measure implemented by President Obama, the Deferred Action for Childhood Arrivals program in 2012 (as well as its proposed expansion in 2014).

In analyzing the contemporary politics of immigration reform, Tirman observes that "reform has focused resolutely on the racial characteristics of those seeking entry." Most reform proposals call for increased immigration enforcement (despite record numbers of removals), expanded legal immigration, and a path to legalization (and perhaps citizenship) for undocumented immigrants. The last component of most comprehensive reform proposals-the much-maligned "amnesty"-is the most contested.

Tirman also examines legal terminology (including "alien" and "illegal alien"), and the English language as "cultural weapons" in the immigration debate. He critically analyzes Samuel P. Huntington's 2004 book Who Are We?, which identifies Hispanic immigration as a cultural threat to the United States and avoids the expressly race-based claims recently voiced by, among others, Ann Coulter and Donald Trump.

The concluding chapter is refreshingly optimistic, mentioning hopeful signs for immigration reform. Immigrants today are a part of popular culture in the United States, featured in music, books, and television shows. Public opinion at times appears to be open to possible reforms sympathetic to immigrants. In fact, some major cities like San Francisco, Los Angeles, and New York City have embraced pro-immigrant policies.  However, as the United States has seen in recent months, major events, such as the controversy last summer over the release of an undocumented immigrant by the San Francisco Sheriff's Office who later allegedly killed a woman, the public at various historical moments supports vigorous immigration enforcement measures.   

Lawyers might want to see more discussion of the law, justice, and fairness in Dream Chasers, all which are important to the debates over immigration reform. Although I might quibble some with parts of the analysis, such as the parallel drawn between Spanish use among Latinos and Ebonics among African Amercans, Tirman generally thoughtfully analyzes in a sober, balanced fashion the contemporary debates over immigration reform.

October 8, 2015

Los Angeles Times Op-Ed: The refugee tragedy in our own backyard

On September 11, three UC Davis students, Aldo Martinez Gomez, Amanda Whitney, and Anita Barooni, and I went to provide a free legal orientation to refugees detained in the Mesa Verde Detention Center in Bakersfield. The students and volunteers met with over 250 refugees and immigrants from all over the world, providing pro se assistance, self-help materials, and legal support. However, we also left feeling a bit defeated because the need was so overwhelming, and the people were desperate for more meaningful legal assistance.

The students' outrage and courage inspired me to write this opinion piece for The Los Angeles Times with my friend and colleague, Jayashri Srikantiah at Stanford.

I did not want what we witnessed to remain invisible, because in the words of MLK, "In the end we will remember not the words of our enemies, but the silence of our friends."


October 2, 2015

LatCrit 2015 Twentieth Anniversary Conference: Critical Constitutionalism

Me with King Hall's Prof. Angela Harris and Prof. Rhonda Magee of the University of San Francisco

This year marks the twentieth anniversary of LatCrit (short for Latina and Latino Critical Legal Theory), part of the Critical Legal Studies tradition.  The theme for this year, "Critical Constitutionalism" provides an occasion for reflection and prospective planning.  I had the good fortune of moderating a powerful panel on "Mindfulness and Constitutionalism" with our very own Professor Angela Harris.  Joined by Professor Rhonda Magee of the University of San Francisco, Professors Harris and Magee opened the session with an example of mindfulness practice.  Professor Magee invited participants in the session to take a few minutes to take stock of our mental and physical states and to sit with our thoughts for a "quiet" minute.  She challenged us to consider what we teach and why to discover how mindfulness can ground us and reveal new ways of culturally evaluating constitutional democracy. The speakers urged us to incorporate mindfulness into teaching, scholarship, and the practice of law.

Professor Harris noted that mindfulness can give meaning to the Constitution, most notably, those famous three words of the preamble: "We the People."  She suggested that mindfulness unlocks possibilities for community-building and coalition formation based on recognition of our shared humanity.  She identified as problematic the "master stories" of how we become a nation, that is, those that call for "oneness" through the elimination (or masking) of differences.  Such narratives exclude those unwilling or unable to assimilate, hide, or reject those aspects of their identities that deviate from the master stories.  In turn, counter-narratives adopt "struggle" and "resistance," rather than connection, as central metaphors.  Yet understanding connection and respecting differences is possible through mindfulness.  The group then discussed the pedagogical possibilities for incorporating mindfulness into teaching.   Professors can create a shared experience of connection in the classroom where students can bring their whole selves to the analysis and application of the law.  It can be as simple as taking the first five minutes of class to sit in silence and encourage the students to identify the physical and mental state they bring to class.  Through modeling and intentional curricular design, we teach students that their diverse life experiences matter and can enhance not only their understanding of the law but expose and contest normative assumptions of "oneness" that underwrite substantive law.  

Not surprisingly, this session went over time as participants shared their reactions to the presentation as well as personal and pedagogical insights on mindfulness.  One participant noted the presence of law school courses on mindfulness signals its importance to students, the academy, and the profession.  Thanks to Professor Harris, King Hall has just such a course: "Mindfulness and Professional Identity: Becoming a Lawyer While Keeping Your Values Intact."  

I look forward to my panel tomorrow morning on "Courts and Politics" where I will discuss my current project "Sexual Citizenship, Disability, and the Dignity of Risk."

October 1, 2015

TIME Ideas: Borders Should Be Checkpoints, Not Roadblocks, to Migrants

I was invited to contribute an essay to TIME Magazine's "Ideas" section.

The result is this: "Borders Should Be Checkpoints - Not Roadblocks - to Migrants."

An excerpt:

The Syrian refugee crisis unfortunately is simply the latest mass migration to challenge the global community. Just last summer, for example, the U.S. was the destination for tens of thousands of women and children fleeing rampant gang violence in Central America. Many other contemporary examples of large movements of people—Haiti, Africa and Vietnam—come to mind.

How do we as global community respond to large-scale migration flows caused by civil war, mass disaster or severe economic deprivation? Unfortunately, the law performs the worst in the situation where it is needed the most. Tight controls over numbers of people admitted do not help address mass migrations of people. More liberal admissions are urgently needed.

International law and the law of individual nations should be more open and admit migrants who want to work in low- and medium-skilled (as well as high-skilled) jobs that are highly valued by the economies of Western nations, which have experienced dwindling labor forces with decreasing fertility rates. We should show our true commitment to the global community by welcoming refugees fleeing violence, natural disaster, and lack of opportunity with open arms, not try to stop them from entering the country.

Read the full essay at TIME Ideas. Thanks to TIME for the opportunity!

September 29, 2015

The Trump Tax Plan in Two Words: "Donald Dust"

I recently provided some commentary to the media on Donald Trump's tax "proposals." To WJLA-TV, the ABC affiliate in Washington, DC, I said, "It's a weird mix of proposals, but these plans at the end of the day are going to blow a hole in the budget." You can read the story here.

The reporter for that story asked me to summarize The Donald's plan in a word. I demurred. Nonetheless, I managed to summarize it in two words: Donald Dust.

As in The Donald blowing his magic dust of better/bygone/bogus days in yet another direction, this time over the tax code. Donald Dust is so magical that somehow slashing tax rates for the rich (from 39.6% to 25%), for partnerships and S-corps (from 35% to 15%), for capital gains and investment income (from 23.8%, including the Affordable Care Act surtax, to 20%), and for vast estates and inheritances (from 40% to zero) will not add trillions of dollars to the deficit, raise interest payments on our national debt, or slow the economy, but rather double the rate of economic growth from the present rate of 3% to 6%. Uh, and how are all those tax cuts for rich taxpayers and businesses better for the middle class? Oh, right, The Donald will also use some of his Dust to accomplish fundamental tax reform, something that hasn't happened long time ago. Like, 1986. Maybe The Donald needs a Donald Wand to go along with his Donald Dust.

Which got me thinking. "Donald Dust" would make a good title for a poem (actually, it started out as a haiku, but...):

Donald Dust, Donald Dust,
Deliver us the American Dream, 
Donald Dust, Donald Dust,
A house, apple pie, ice cream. 
Donald Dust, Donald Dust,  
Tax cuts for me, my neighbor, you, and GE, 
Donald Dust, Donald Dust,
More cuts for estates, rich heirs, and Bobby McGee, 
How do you know what others can't see? 
How do you make 1 + 1 = 3? 
How do your tax cuts double GDP? 
Why do corporations pay less tax than me?
(please excuse the bad grammar)
Donald Dust, Donald Dust, 
Never mind all that, I really don't care, 
Just blow some of that Dust over yonder, 
I want your hair. 

September 25, 2015

"Liberty or Equality?" and the Obergefell Opinion

On Wednesday, September 23, I presented the annual Anthony Kennedy Lecture at the Lewis & Clark Law School.  The subject of my talk was "Liberty or Equality?", and the topic was Justice Kennedy's majority opinion in the recent Obergefell case, recognizing a constitutional right to same-sex marriage.  In the first part of my lecture, I placed the Obergefell opinion in context, taking into account Justice Kennedy's place on the current Court, and his past jurisprudence.  In particular, I noted that while Justice Kennedy is undoubtedly the co-called "swing Justice" on the Roberts Court, he is quite different from past swing Justices such as Sandra Day O'Connor and Lewis Powell.  The latter were considered to be moderate pragmatists, lacking strong judicial philosophies.  Not so for Justice Kennedy.  From his first years on the Court, his jurisprudence has been notable for a passionate commitment to Liberty in all of its aspect, and his firm belief that protection for Liberty is intrinsically tied to protection of individual Dignity.  This commitment appears in his  privacy jurisprudence of course (culminating in Obergefell), but also in other areas including notably free speech -- it is no coincidence that Kennedy is the preeminent advocate of First Amendment liberties on the modern Court.  Moreover, unlike his colleagues, Justice Kennedy's commitment to liberty transcends political boundaries, encompassing such "liberal" Liberty claims as abortion and the free speech rights of pornographers, and such "conservative" claims as property rights and commercial speech.  It is this lack of partisanship, rather than lack of philosophy, that has placed Justice Kennedy at the center of the modern Court.

I then stirred up the pot a bit by raising some doubts about Obergefell, at least as written.  I noted that the plaintiffs in the case had raised both Due Process (i.e., Liberty), and Equal Protection (i.e., Equality) claims, and the Court's formulation of the questions presented preserved both.  Yet Kennedy's opinion is almost all Liberty, with a tiny dollop of Equality almost as an afterthought.  I suggested that this emphasis is probably a product of Kennedy's own preferences and comfort levels.  While Justice Kennedy has always been a strong advocate of Liberty claims, his relationship to Equality is more ambivalent.  He unquestionably is firmly committed to nondiscrimination principles, and even (unlike his conservative colleagues) a commitment to racial integration.  However, he has demonstrated -- notably in affirmative action cases -- grave discomfort with policies that classify individuals based on qualities such as race.  Indeed, this discomfort ties into his commitment to Dignity, because he sees such typecasting as itself in consistent with individual Dignity.  As a consequence, Liberty must have seemed the easier path to take.

Ultimately, however, I do believe this choice was a mistake, for several reasons.  First, I think that jurisprudentially, Equality is the stronger argument.  The Court's entire substantive due process jurisprudence, which was the basis of the Due Process holding in Obergefell, rests on somewhat shaky foundations, given its lack of textual grounding.  Equal Protection, on the other hand, is a well-established, textually based doctrine.  And the argument for extending heightened scrutiny to discrimination against LGBT individuals strikes me as extremely powerful, under existing precedent.  Second, an Equality based holding would have been broader, granter more protections to sexual minorities than a narrow decision focused on marriage.  Third, it is possible that an Equality based holding would have generated less intense opposition than a holding that redefines marriage (though this is admittedly speculative).  Finally, I also believe that Justice Jackson was correct in his argument, in the Railway Express case, that in a democracy, equality-based constitutional decisions are generally preferable to liberty-based ones, because they interfere less in legislative authority.

September 25, 2015

Corporations, the Constitution, and the Rights of Others

Cross-posted from Columbia Law School's Blue Sky Blog.

The Supreme Court's protection of corporate political expenditures in Citizens United v. FEC and corporate religious exercise in Burwell v. Hobby Lobby has rekindled perennial fears about the influence of corporations in U.S. politics and policy. One popular response has been to argue for stripping corporations of constitutional rights. For example, the proposed "People's Rights Amendment" would exclude corporations from the categories of "people, person, or citizen as used in this Constitution,"[1] thus denying corporations the constitutional rights of human individuals.

Unfortunately, denying corporate constitutional rights is unlikely to have much effect. Insofar as the Supreme Court has protected corporations under the Constitution, that protection does not expressly rely on the notion that a corporation per se has constitutional rights. To the contrary, a central strategy of the Court's corporate constitutional jurisprudence has been to avoid deciding whether corporations are the holders of constitutional rights. Constitutional decisions protecting corporations have not been based on the rights of corporate "persons," but on the less controversial rights of human persons. That is, "corporate" constitutional rights are actually based on the rights of others.

The Court does this in two ways. First, it sometimes treats a corporation as no more, and no less, than an "aggregation" of human individuals whose rights are the real rights implicated in corporate constitutional questions. Hobby Lobby expressly states the Court's reasoning: the corporate "person" is merely "a familiar legal fiction" created to protect the rights of "the people (including shareholders, officers, and employees) who are associated with the corporation." Thus the Fourth Amendment prohibits unreasonable search and seizure of corporate papers because such papers implicate the property and privacy rights of individuals. By contrast, a corporate entity cannot invoke the Fifth Amendment's protection against self-incrimination, because no individual's rights are compromised when a corporation (in contrast to, say, a CEO) is compelled to incriminate itself.

In the First Amendment free speech context, the Court bases corporate protection on individuals' rights in a second, very different way. The so-called "listeners' rights" theory of the First Amendment protects the public's right to hear messages, and thus requires neither a corporate nor an individual "right" to speak. Thus in Citizens United (and earlier, in First National Bank v. Bellotti (1978)) the Court held that corporate political spending must be protected in order to protect voters' First Amendment rights to receive diverse sources of political information.

The Court, then, has avoided the mistake of equating corporations with human individuals for constitutional purposes. However, its "rights of others" approach suffers from a different error: a fundamental misunderstanding of the corporate decisionmaking process. In the "aggregation" cases, the Court purports to protect the individuals associated with the corporation, but this erroneously assumes that the corporation's acts are in effect the acts of those individuals. The Court makes a similar error with respect to corporate political spending. Even if listeners have an interest in hearing corporate messages, that may conflict with the rights of the corporation's constituent individuals if they disagree with those messages. Citizens United dismissed this concern on the ground that shareholders control a corporation's messages through "corporate democracy."

Small, family-run corporations, such as that involved in Hobby Lobby, may accurately represent the wishes of their constituents.  The same is not true of larger corporations, however.  Corporate law does not, and is not intended to, run corporations in a "democratic" way. Rather, in the interests of money-making efficiency, the law concentrates power in professional managers. They enjoy nearly unreviewable discretion to control the resources of the corporation with negligible input from shareholders.

As intended, this arrangement is likely to benefit shareholders financially. But it does not protect them from corporate political spending or other speech acts they disagree with. Shareholders can sue management only for deliberate malfeasance, and political spending has been treated as a proper matter for management discretion. Furthermore, the Court itself has stated that corporate rights are meant to protect not only shareholders, but also other corporate constituents, such as employees. Those individuals, however, have even less power than shareholders with respect to corporate decisionmaking. Employees cannot vote in corporate elections and can be fired for disagreeing with management.

The protection of corporate constituents may present a compelling state interest justifying the regulation of corporate speech. Corporate political spending in particular could compromise the speech and property interests of corporate constituents who may disagree with the political message. This argument questions the reasoning of Citizens United, and is consistent with the proposed "Democracy for All Amendment," which would expressly permit campaign finance law to regulate corporations and natural persons differently.[2]


[1] See S.J. Res. 18 & H.J. Res. 21, 113th Cong. (1st Sess. 2013). I should disclose that I am a member of the Legal Advisory Committee of Free Speech for People, an advocacy group that supports this amendment, as well as the "Democracy for All Amendment," discussed below. See Free Speech for People,

[2] See S.J. Res. 19 & H.J. Res. 119, 113th Cong. (2nd Sess. 2014).

The post is adapted from the recent article, Corporations and the Rights of Others, 30 Const. Comment. 335 (2015), which is available here.