Raquel Aldana, Associate Vice Chancellor for Academic Diversity and Professor of Law, UC Davis

[Cross-posted from the UC Davis Equity and Inclusion Blog.]

Days before Thanksgiving, on November 17, the California State Bar announced the July 2017 bar exam results. At a pass rate of 49%, the outcome was only slightly better than a year earlier when results were an abysmal 43%. Since California is the largest state in terms of licensing lawyers, next to New York, the effects of California's bar exam are quite substantial. In simple numbers, while 4236 law graduates passed the July 2017 California bar exam, a greater number of 4309 did not. These results are indefensible and the cost on the individual test takers and the legal profession as a whole unjustified.

When would-be lawyers fail the California bar exam, their lives are upended. Many lose their jobs or face delays of months or years to start their professional lives as lawyers. This result might make sense if the California bar exam actually did a good job of excluding incompetent lawyers from the profession. Unfortunately, especially in California, the bar exam largely fails in this important task. Every year when I learn the identity of many former students who do not pass the California bar exam I grow in my resolve to question the exam's validity to measure minimal competency to practice law. Among the students who fail are always more than a handful of incredibly talented young professionals who would make great lawyers and are already exceptional advocates. I have hired some as my research assistants with excellent results.  Others have earned high grades for exceptional research and writing in legal memoranda or papers for seminars or for the highly competent representation of clients as part of service learning or legal clinics. It is also false that many of these young people did not study enough for the test or are somehow deficient in their skills as lawyers.

Critiques of the bar exam's failings abound and are not new. For years, legal educators have lamented the test's deep flaws for how it tests and for what it fails to measure. For example, with the exception of the performance test,[1] the California bar exam relies on test takers memorizing thousands of distorted rules and having to produce answers as a series of multiple choices or in rushed essays. This should never be the way lawyers practice law. Most law today is codified and legal analysis requires nuanced textual interpretation, in addition to careful case law research to analyze and apply precedent. The best legal writing requires careful editing and time. The test also fails to assess most of the important skills that are essential to effective lawyering such as fact-finding, problem-solving, listening, and the ability to collaborate with other legal professionals.[2] The bar exam further fails to keep pace with a rapidly changing profession with emerging technologies and diverse client needs. And yet, the bar exam often dictates too much how law schools teach law to their students. Unfortunately, especially today when law schools face significant decreases in enrollment and scrutiny for the success of their students on the bar exam,[3] many sacrifice not only innovation in the curriculum but methods to teach sound or critical legal analysis in favor of rote memorization to emphasize helping their students pass the bar exam. This state of affairs of legal education is not new. As early as 1992, the McCrate Report,[4] published by the ABA Section of Legal Education and Admissions to the Bar, lamented the undue influence that the bar exam has on the structure of curriculum and teaching methods on U.S. legal education. 

In California, the pernicious harms on individuals and legal education are worse given the exam's notoriously high cut score. On October 18, 2017, the Court refused to lower the California Bar examination's cut score of 1440, opting to remain the second-toughest graded bar in the country after Delaware.[5]  This decision was both puzzling and disappointing. Just three months earlier, the California Supreme Court stripped the Committee of Bar Examiners of its authority to decide the minimum score needed to pass the state's examination. Many perceived this decision as suggesting that the Court was finally ready to set a more reasonable grading standard. Indeed, for the July 2016 exam, had the California bar exam been graded like the New York State bar (which has a score of 1390), 1789 more lawyers would have been licensed lawyers in California.[6]  Instead, the California Supreme Court sent a message to law schools to consider whether curricula and teaching techniques might account for the recent decline in the bar exam.[7] This conclusion is both out of touch with what has actually been occurring in the law school classroom for years and it perpetuates unfairness by relying on a cut score that is higher than that adopted by forty-eight states in the nation without justification. 

Quite unfortunately, the California Supreme Court's October 18 decision will also unnecessarily retard diversifying the legal profession in one of the most diverse states in the nation. Law is the least diverse profession in the nation[8] and this trend is not changing.[9] Eighty-eight percent of lawyers are white.[10] Latinos/as, who are 18% of the population nationwide and 39% in California, comprise only about 4% of all U.S. lawyers.[11] They are also only 1.8% of all law firm partners and occupy only 4.5% of all federal and state judicial positions.[12] Black lawyers are not faring much better. Only 4.8% of lawyers in the U.S. are black[13] while only 1.8% of partners in law firms.[14] For their part, Asian Americans comprise the fastest growing minority group in the bar but are not found in the top ranks of the profession. Today, there are more than 50,000 Asian U.S. lawyers and another 7,000 are studying law. Yet, for example, while they make up 6% of the U.S. population, Asians make up only 3% of federal judges and 2% of state judges, while only 3 out of 94 U.S. attorneys are Asian.[15]

There are multiple reasons that explain the lack of diversity in the legal profession but the bar exam, particularly the high cut score in California, plays a role. Nationwide, the median cut score for the bar exam is 1350 and each cut score above this median threshold has a dramatic effect on the diversity of the profession. The California State Bar's Final Report to the Court showed that reducing the cut score on the July 2016 bar exam from 1440 to 1350 would have increased the number of African American applicants passing the exam from 104 to 222 (or by 113%), Latino/a applicants from 379 to 664 (or by 75%) and Asian applicants from 676 to 1066 (or by 58%). In contrast, the same change in cut score would have increased the number of White applicants passing the bar from 2,019 to 2,874 (or by 42%).[16] 

There are alternatives to the bar examination that we ought to consider seriously.  New Hampshire, for example, has such an alternative licensing model. Its University of New Hampshire School of Law allows second- and third-year students to participate in a kind of apprenticeship where they learn basics like taking depositions. Those accepted to the Daniel Webster Scholar Honors Program create portfolios of their written work and record their oral performances, which are reviewed by state bar examiners after each semester. Those who pass the review can skip the bar exam and go directly into practice.  Other individual states, including New York, are also weighing alternatives. At a minimum, the California Supreme Court should reconsider its decision to retain the 1440 cut score. This would not address the examination's flaws and it may not affect its influence on legal education. It will, however, at a minimum, increase the diversity of the profession. California has not been served well by an unusually high bar exam cut score. The time is ripe to do the right thing.

[1] Performance test questions are designed to test an applicant's ability to understand and apply a select number of legal authorities in the context of a factual problem.

[2] Marjorie M. Shultz and Sheldon Zedek, 26 Lawyering Effectiveness Factors, https://alumni.ggu.edu/Document.Doc?id=92 .

[3] Law School Admission Collapse Continues, Financial Times, Nov. 20, 2016 https://www.ft.com/content/4ddb437e-9ace-11e6-8f9b-70e3cabccfae/

[4] Legal Education and Professional Development-An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (July 2992), https://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2013_legal_education_and_professional_development_maccrate_report).authcheckdam.pdf .

[5] In re California Bar Exam (2017), https://newsroom.courts.ca.gov/news/supreme-court-issues-letter-relating-to-in-re-california-bar-exam .

[6] David L. Faigman, The California Bar Exam Flunks too Many Law School Graduates, L.A. Times, March 21, 2017, http://www.latimes.com/opinion/op-ed/la-oe-faigman-california-bar-exam-cut-score-20170321-story.html .

[7] Staci Saretzky, California Supreme Court Issues Decision on Bar Exam Cut Score, Oct. 18, 2017, https://abovethelaw.com/2017/10/california-supreme-court-issues-decision-on-bar-exam-cut-score/ ,

[8] Deborah L. Rdohe, Law is the Least Diverse Profession in the Nation. And Lawyers aren't Doing Enough to Change That, The Washington Post, May 27, 2015, https://www.washingtonpost.com/posteverything/wp/2015/05/27/law-is-the-least-diverse-profession-in-the-nation-and-lawyers-arent-doing-enough-to-change-that/?utm_term=.fca85228cef9 .

[9] Renwei Chung, Diversity in the Legal Profession has Flatlined Since the Great Recession: Who is to Blame? Jan. 6, 2017, https://abovethelaw.com/2017/01/diversity-in-the-legal-profession-has-flatlined-since-the-great-recession-who-is-to-blame/

[10] Rhode, supra note 8.

[11] Raul A. Reyes, Where are all the Latino Lawyers?: Hispanics Scarce in the Legal Profession, Oct. 13, 2017, NBC News, https://www.nbcnews.com/news/latino/where-are-all-latino-lawyers-hispanics-scarce-legal-profession-n809141 .

[12] Id.

[13] Yolanda Young, Why the US Needs Black Lawyers Even More than it Needs Black Police, The Guardian, May 11, 2015, https://www.theguardian.com/world/2015/may/11/why-the-us-needs-black-lawyers .

[14] Chung, supra note 9.

[15] Goodwin Liu, There are more Asian American Lawyers than Ever - but not in the Top Ranks, L.A. Times, July 23, 2017, http://www.latimes.com/opinion/op-ed/la-oe-liu-asian-american-lawyers-20170723-story.html .

[16] Joe Patrice, Law Schools Rip Bar Exam Score Recommendations, October 13, 2017, https://abovethelaw.com/2017/10/law-schools-rip-bar-exam-cut-score-recommendations/ .

By Darien Shanske

[Cross-posted from Medium.com.]

There is a strong legal argument that insurers are owed cost-sharing reduction (CSR) payments, notwithstanding the refusal of the current Congress and the President to make the payments. Alas, assuming this is correct, these payments will come too late for current customers and insurers, thereby inflicting real damage to individuals and perhaps permanent damage to the ability of the health insurance system to provide affordable coverage on the individual market. The states can step in and make these payments and, given the scale of the payments relative to state budgets, it would seem that many states should be able to do so. But matters are not so simple. States typically operate under balanced budget rules and cannot simply borrow to pay for some worthy program. There will need to be a budgeting process and the balanced budget rule will force tradeoffs to be made (or taxes to be raised) if a state is to make CSR payments in the present in order to prevent current damage.

But there is another option. The CSR payments are very likely to happen eventually and thus they have a lot of value right now. If adequately compensated for the legal risk through interest payments, investors would likely advance most of the eventual value of the CSR payments today. Indeed, one might imagine that the opportunity to thwart the Trump Administration would lead to such an extraordinary response from investors that borrowing could be end up very affordable indeed.

In this way, the states can protect their citizens while not putting up state tax dollars. Aside from the economic and moral imperatives to protect their citizens that should motivate the states to act, it is also important to note that the states also possess the administrative capacity to collect the relevant insurers, estimate their CSR claims and put together a sensible financing structure. The states can even offer some kind of backup to these bonds to drive down their costs further.

Professor Brian Soucek filed an amicus brief with the U.S. Supreme Court, arguing that it should agree to hear Evans v. Georgia Regional Hospital, a case that asks whether federal employment discrimination law protects against discrimination based on sexual orientation.

Professor Soucek wrote the brief with Professor Jessica Clarke of the University of Minnesota Law School and lawyers at Hogan Lovells on behalf of 17 anti-discrimination law scholars. They argue that sexual orientation discrimination is based on, and reinforces, the outmoded gender roles that Title VII of the Civil Rights Act of 1964 was intended to disrupt. The argument is based in part on Soucek's article "Perceived Homosexuals: Looking Gay Enough for Title VII," and his recent essay for the Yale Law Journal Forum: "Hively's Self-Induced Blindness," which in turn drew on three decades of work by the scholars who signed on to the brief.

Other scholars joining the brief are Professor I. Bennett Capers of Brooklyn Law School, Professor Michael C. Dorf of Cornell Law School, Professor William N. Eskridge, Jr. of Yale Law School, Professor Cary C. Franklin of the University of Texas School of Law, Judge Nancy Gertner (Ret.), a lecturer at Harvard Law School, Professor Andrew M. Koppelman of Northwestern University School of Law, Professor Zachary A. Kramer of Arizona State University College of Law, Professor Sylvia A. Law of New York University School of Law, Professor Catharine A. MacKinnon of the University of Michigan Law School and Harvard Law School, Professor Samuel A. Marcosson of the University of Louisville School of Law, Professor Ann C. McGinley of the University of Nevada, Las Vegas School of Law, Professor Douglas G. NeJaime of Yale Law School, Professor Betsy Rosenblatt of Whittier Law School, Professor Vicki Schultz of Yale Law School, and Professor Deborah Widiss of the Indiana University School of Law.

Professor Soucek holds a J.D. from Yale Law School and a Ph.D. from Columbia University. He has clerked for U.S. District Court Judge Mark. R. Kravitz in Connecticut, and Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit. His primary teaching and research interests are antidiscrimination law, civil procedure, constitutional law, and refugee/asylum law.

By Chris Elmendorf and Eric McGhee

[Cross-posted from Election Law Blog.]

During oral argument in Gill v. Whitford, the partisan gerrymandering case, Justice Gorsuch complained that the plaintiffs' proposed test for unconstitutional gerrymanders was too much like a steak rub: "I like some turmeric, I like a few other little ingredients, but I'm not going to tell you how much of each." The implication is that adjudicating partisan gerrymandering cases would be like judging a Top Chef contest, with jurists relying on their personal preferences to deem the map at issue yummy or unpalatable.

One of us is the creator of the "efficiency gap," a measure of partisan gerrymandering that has played an important role in this case. Together we filed an amicus brief that outlined the properties and uses of both the efficiency gap and a variety of other partisan gerrymandering metrics. As such, we have an interest in making sure that the social science of this case is understood and used properly. Although Gorsuch might make an excellent steak rub, we don't think his metaphor caries well to the evidence or proposed standards in this case.

The metaphor is apt for totality-of-circumstances balancing tests, such as the constitutional test for procedural due process, and, arguably, the test for racial vote dilution under the Voting Rights Act. But the tests on offer for partisan gerrymandering claims-including the plaintiffs' test, and the test suggested in an influential amicus brief by biostatistician Eric Lander-do not invite or require balancing.

There is, first, an objective, well-defined question to be answered: Is the legislative map substantially asymmetric with respect to the conversion of votes into seats-meaning that each party is likely to receive quite different seat shares for a given share of the vote? To ask whether a map is asymmetric in a partisan gerrymandering case is akin to asking, in a toxic torts case, whether a chemical released in an industrial accident causes cancer. A judge in the torts case might consider epidemiological evidence, lab experiments on mice, and biomechanical studies of cell division. But the question to be answered is not whether these three types of evidence, considered together, show the plaintiffs to be morally deserving of compensation (a steak-rub question). Rather, the question is objective: does the chemical cause cancer?

Similarly, the three measures of partisan symmetry introduced by the plaintiffs in Gill-the Efficiency Gap, Gelman-King bias, and the mean-median difference-each serve to answer the objective question of whether a map of legislative districts yields an asymmetric votes-to-seats curve. The measures are extremely highly correlated in competitive states like Wisconsin. They diverge somewhat in politically lopsided states, but the reason for the divergence is well understood and points to a clear choice among the metrics.

If a legislative map were shown to have substantial asymmetry, then under the plaintiffs' proposed test, the court would ask whether that degree of asymmetry can be explained by neutral factors, such as the geographic distribution of each party's supporters. No balancing is involved: the court would not weigh the size of the asymmetry against the likelihood that it arose by chance, or against the weightiness of the state's official (legitimate) redistricting criteria. Indeed, to minimize judicial discretion at this stage, judges could use redistricting simulations to determine whether the map at issue is an outlier relative to the range of algorithmically generated maps.

Courts applying this approach would eventually have to settle on quantitative thresholds for "substantial" asymmetry, and for "outlier" status relative to simulated maps, but this is no different than what the courts did in malapportionment cases after Reynolds v. Sims. Also, while the plaintiffs in Gill formulated the substantial-asymmetry question as a two-part inquiry into magnitude and durability, these steps could easily be collapsed into one if courts focused on the expected rather than the observed level of asymmetry, where expected asymmetry is an average taken over the range of historically plausible partisan swings.

Ironically, the only serious subjectivity in the plaintiffs' proposed test lies in the intent prong-whether the map was adopted to benefit the favored political party. This inquiry may turn on a judge's priors in cases where the legislators worked hard to conceal their motives. The irony is that no one disputes that the intent prong is manageable. Intent tests are ubiquitous in constitutional law. But to the extent that the Supreme Court worries about judges simply voting for their party in gerrymandering cases (or being perceived to do so), the Supreme Court could implement the intent prong via conclusive presumptions based on the composition of the legislature (partisan intent presumed if the advantaged party held a majority of the seats when the map was enacted), or based on the results of computer simulations (partisan intent presumed if the map is an outlier relative to the distribution of simulated maps).

Again, our purpose here is not to argue for any particular outcome for the Wisconsin plan. The Supreme Court must decide whether this gerrymander is too extreme. But the Justices need not worry that the available metrics are too variegated for manageable adjudication. Steak rubs are great at the grill, and perhaps in some cases they should season the law too. But partisan symmetry is not a steak rub concept, and Gill is not a steak rub case.

The Aoki Center for Critical Race and Nation Studies presented a screening of Cruz Reynoso: Sowing the Seeds of Justice, filmmaker Abby Ginzberg's documentary on the life of Professor Emeritus Cruz Reynoso, at King Hall on September 26. 

The film presents the story of Professor Reynoso's life and career as it intersects with key moments in the history of California and the nation, including the fight for legal services for farm workers during the 1970s, the 1986 political campaign by death penalty advocates against Reynoso and two other California Supreme Court justices, and the U.S. Commission on Civil Rights' investigation of voting irregularities in Florida during the 2000 Presidential election. 

A member of the UC Davis School of Law faculty since 2001, Professor Reynoso was awarded the Presidential Medal of Freedom, the nation's highest civilian honor, in 2000 by President Bill Clinton in recognition of his "compassion and work on behalf of the downtrodden." 

The screening was part of the Aoki Center's Fall 2017 Interdisciplinary Research Seminar Series. To view a trailer for the film click here.

By Raquel Aldana, Associate Vice Chancellor for Academic Diversity and Professor of Law, UC Davis

[Cross-posted from UC Davis Equity and Inclusion Blog]

On Sunday September 24, 2017, while President Trump artfully distracted the nation by feuding with NFL football players over their First Amendment right to protest racial injustice in the United States, the White House released a Presidential Proclamation Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorist or Other Public-Safety Threats. This new travel ban ("travel ban 3.0") replaces the previously revised travel ban issued March 6 (Executive Order 1380; Protecting the Nation from Foreign Terrorist Entry into the United States), which was due to expire that same night. Travel ban 3.0 has not received as much media attention or public consternation as the original travel ban. However, its harms, which are now indefinite, remain largely unchanged for five of the six predominantly Muslim nations included in the original travel ban (Iran, Libya, Syria, Somalia, and Yemen) while three new nations (Chad, North Korea, and Venezuela) are added to the list.

On its surface, travel ban 3.0 appears to draw careful distinctions in the degrees of travel restrictions imposed on each of the eight nations based on alleged differences in the security risks presented by each. However, with the exception of Venezuela, the most important fact is that travel ban 3.0 indefinitely bars nationals from all of the seven remaining nations from permanent immigration into the United States. No careful "tailoring" as the government claims, can hide this harsh reality. Moreover, six of the targeted nations (Iran, Chad, Libya, Syria, Somalia, and Yemen) are predominantly Muslim. Not unlike the previous two travel bans, travel ban 3.0 hurts predominantly Muslim U.S. families, Muslim refugees, and the entire U.S. economy with highly questionable national security gains.

Permanent immigration into the United States occurs largely for three primary reasons: to promote family unification between foreigners and U.S. citizens or lawful permanent residents, to recruit workers that Congress deems contribute to the U.S. economy, and to provide protection from persecution to refugees and asylum seekers. In 2015, the last year for which the government has provided official data on permanent immigration into the United States, over 20,000 permanent immigrants from these seven nations (the largest numbers from Iran, Syria, and Yemen) arrived in the United States to unify with spouses, children, parents or siblings, to begin gainful employment, often after completing programs of study in the United States, or to escape horrific repression.[1] Moreover, as of 2012, nearly 800,000 persons living in the United States come from countries affected by the ban, representing 2% of all foreign-born immigrants in the country.[2] With travel ban 3.0, potentially hundreds of thousands of U.S. families, some who have waited in backlogged immigration lines for years, confront the possibility of an indefinite separation from their loved ones. Moreover, in violation of our moral obligation and international and domestic legal commitments, under travel ban 3.0, the United States turns its back indefinitely on tens of thousands more refugees.

Travel ban 3.0 did ease some of the previously imposed travel bans in puzzling ways. Only two of the eight nations, North Korea and Syria, face an indefinite bar for both permanent and temporary immigration to the United States. Venezuela is a unique case because the ban on travel applies only to certain government officials. Somalia is also a unique case because temporary immigration is not suspended but rather subjected to additional scrutiny. For the remaining nations, the odd tailoring of restrictions or exceptions to the restrictions will largely mean that some temporary migration will be allowed to come in from each of these countries except for temporary visitors on business or as tourists. For Iran, the ban on temporary migration is even broader exempting only student categories. This begs the obvious question as to why the Trump administration considers it possible to contain the purported national security risks of travel for temporary migrants, who usually come to the United States in much greater numbers than permanent immigrants, while imposing more extreme measures to permanent immigration.

Universities across the country may view as positive that travel ban 3.0 lifts the student visa restrictions on most of the countries affected in the prior travel ban, including Iran. Students from North Korea and Syria, however, are indefinitely banned as students, while Somali students could still face undue restrictions. More importantly, however, travel ban 3.0 leaves intact the barriers that would significantly deter many foreign students, not only those who come from the nations directly affected, from choosing to study in the United States. Already, students from Chad, Libya, and Yemen are indefinitely banned from seeking permanent legal employment in the United States once they finish their studies while students from Iran are indefinitely banned from both temporary and permanent lawful employment in the United States. This significantly reduces the economic incentives for these students to choose their studies in the United States and it robs us of the opportunity to reap the benefits of a U.S. educated workforce. More importantly, the ban signals to these foreign students that they are considered security risks to our nation and are not wanted. Why should foreign students spend tens of thousands of dollars to study in a nation hostile to them and their contributions? Who among them is going to be targeted next?

More than a million international students currently study on U.S. college campuses, contributing nearly $36 billion to the U.S. economy.[3] From the targeted countries, Iran and Venezuela feature among the top 25 sending nations, and together comprise more than 20,000 students nationwide.[4] At UC Davis, our student population from the affected nations is fewer than 100, with the largest share comprised of students from Iran. These students are feeling targeted, isolated, and scapegoated. Each one of them, however, is a valuable member of our community. Their presence on this campus makes us a better university and enhances our understanding of shared or even different values, culture, religion, and ideas. Our shared spaces allow us to grow in respect for one another. U.C. Davis students and scholars affected by travel ban 3.0 can find support at UC Davis Services for International Students and Scholars. UC Davis remains committed to supporting and welcoming students and scholars regardless of citizenship or place of birth.

Travel ban 3.0 may have both delayed and muddled the legal challenges to the prior travel bans but it should not alter our moral indignation against the policies. The legal challenges to the prior travel bans relied on President Trump's virulent anti-Muslim rhetoric to make a compelling case of the religious animus motivating the ban. The inclusion of Venezuela and North Korea in travel ban 3.0 could make this claim harder, particularly when immigration law's exceptionalism already grants the President wide discretion to violate fundamental rights even of U.S. citizens directly affected by the ban (e.g., those who can assert a "bona fide" relationship to nationals from the banned countries). Law, however, cannot always provide the right answers. We must also be guided by our values, our humanity, and our common sense. Travel ban 3.0 remains essentially an anti-Muslim prohibition. It must also be understood in the context of a broader anti-immigrant agenda, which also targets other communities of color. This includes the recent immigration raids, DACA's rescission, cuts in refugee admissions, and legislative proposals like the RAISE ACT which proposes major cuts to family immigration, which predominantly originates from Mexico, China, India and the Philippines. The national security justification for the ban has great appeal, but it is misguided. Since September 11, 2001, a vast majority of the perpetrators of terrorist attacks came from countries not listed in the ban, and many were born in the United States.[5] Security experts particularly puzzle over Chad's inclusion since Chad has been an ally in the fight against terrorism.[6] Careful consideration must be given to how and whether immigration controls are necessary to improve U.S. security. However, indiscriminate immigration bans against entire nations are unlikely to make our nation safer. They will certainly, however, make us a less diverse and inclusive nation.

[1] Department of Homeland Security, 2015 Yearbook of Immigration Statistics, Table 10: Persons Obtaining Lawful Permanent Resident Status By Broad Class of Admission and Region and Country of Birth.

[2] Mona Chalabi, "How many US immigrants come from Trump's seven banned countries?" The Guardian (28 January 2017); Ford Fessenden, Jasmine C. Lee, Sergio Pecanha and Anjali Singhvi, "Immigrants from Banned Nations: Educated, Mostly Citizens and Found in Every State," New York Times (30 January 2017).

[3] Karin Fischer, "International Students Dodge Trump's Partly Reinstated Travel Ban, but Concerns Persist," Chronicle of Higher Education (26 June 2017).

[4] Id.

[5] Ford Fessenden, Jasmine C. Lee, Sergio Pecanha and Anjali Singhvi, "Immigrants From Banned Nations: Educated, Mostly Citizens and Found in Every State," New York Times (30 January 2017).

[6] Helene Cooper, Michael D. Shear and Dionne Searcey, "Chad's Inclusion in Travel Ban Could Jeopardize American Interests, Officials Say," New York Times (26 September 2017).

By William Dodge

[Cross-posted from Just Security]

On October 11, the U.S. Supreme Court will hear oral argument in Jesner v. Arab Bank, PLC on the question whether corporations can be sued for human rights violations under the Alien Tort Statute (ATS). This will be the second time the question of corporate liability has come before the Court. In 2011, the Supreme Court granted cert to consider the same question in Kiobel v. Royal Dutch Petroleum Co., but after oral argument the Court asked for additional briefing on the geographic scope of the ATS cause of action. Ultimately, the Supreme Court affirmed dismissal of the claims in Kiobel on the ground that they did not "touch and concern" the United States with sufficient force to displace the presumption against extraterritoriality. The Court did not reach the question of corporate liability under the ATS, leaving the Second Circuit's categorical rule against such liability intact.

Victims of terror attacks in Israel, the West Bank, and Gaza-both U.S. citizens and non-U.S. citizens-alleged that Arab Bank knowingly funneled millions of dollars through its New York branch to finance these attacks and reward the families of suicide bombers. The U.S.-citizen plaintiffs sued under the Antiterrorism Act (ATA), while the non-U.S.-citizen plaintiffs sued under the ATS. In the ATA suit, the district court found that Arab Bank knowingly provided financial services to persons that it knew to be terrorists. In the ATS suit, the district court dismissed, and the Second Circuit affirmed the dismissal, on the sole ground that under circuit precedent ATS cannot be brought against corporations.

The arguments in Jesner fall into three groups:

1) whether customary international law permits corporate liability;

2) whether, as a matter of U.S. domestic law, the ATS cause of action should be interpreted to permit corporate liability;

3) whether the case against Arab Bank should be dismissed on some other ground.

Whether Customary International law Permits Corporate Liability

Whether customary international law permits corporate liability is in some sense the threshold question, because the ATS gives federal courts jurisdiction over actions "by an alien for a tort only, in violation of the law of nations or a treaty of the United States." In Kiobel, the Second Circuit held that corporations could never be held liable under the ATS because there is no "norm of corporate liability under customary international law." The Second Circuit relied heavily on the fact that international criminal tribunals from Nuremberg to the ICC had been given jurisdiction only over natural persons. 

The detailed analysis in the amicus brief of Nuremberg Scholars, however, shows it was understood at Nuremberg that juridical persons could violate international law and be held legal accountable for doing so. The amicus brief filed by Ambassador David Scheffer, who led the U.S. delegation in the negotiations that established the ICC, explains that corporations were excluded from the Rome Statute because of a lack of consensus on criminal, rather than civil liability, which posed problems under the ICC's principle of complementarity. The amicus brief filed on behalf of International Law Scholars argues more generally that limitations on the jurisdiction of particular courts are not limitations on customary international law norms themselves. It explains that customary international law prohibits violations of fundamental human rights but leaves it to nations to enforce such norms-collectively through mechanisms like international criminal tribunals and suppression conventions, and individually through their own domestic laws. (Full disclosure: I am counsel of record for the International Law Scholars.)

The amicus brief filed by the United States agrees that international law "establishes substantive standards of conduct but generally leaves each nation with substantial discretion as to the means of enforcement within its own jurisdiction." The United States adds that the norms actionable under the ATS, like torture, genocide, and war crimes, "neither require nor necessarily contemplate a distinction between natural and juridical actors." The amicus brief of the Yale Law School Center for Global Legal Challenges fleshes out the latter point, showing that eight customary international law prohibitions-genocide, crimes against humanity, financing terrorism, torture, extrajudicial killing, war crimes, slavery, and piracy-both meet the Sosa-standard for actionable norms under the ATS and extend to corporations. And the amicus brief of Canadian International and National Security Law Scholars elaborates on financing terrorism as a violation of international law.

Respondent Arab Bank and the amicus brief filed by the Chamber of Commerce do little to meet these arguments, largely limiting themselves to repeating what the Second Circuit said in Kiobel. The amicus brief filed on behalf of Professors of International Law, Foreign Relations Law, and Federal Jurisdiction makes an additional argument that the ATS should be limited to claims for violations of international law that, if left unaddressed, might give other countries just cause for war against the United States. This argument finds no support in the text of the ATS, however, which refers without limitation to torts "in violation of the law of nations or a treaty of the United States." This argument also fails to account for piracy, which the Supreme Court recognized in Sosa v. Alvarez-Machain as one of the three paradigm offenses the ATS was intended to address and which (unlike violations of safe-conducts and infringement of the rights of ambassadors) would not have given other countries cause for war if left unaddressed.

Whether the ATS Cause of Action Should Permit Corporate Liability

Whether the ATS cause of action recognized in Sosa v. Alvarez-Machain should apply to corporations as a matter of U.S. domestic law is a separate question from whether customary international law permits it to do so. Petitioners note that while the language of the ATS limits potential plaintiffs to aliens, it does not limit potential defendants in any way. Petitioners also argue that the ATS's use of the word "tort" supports corporate liability because tort actions could presumptively be brought against corporations both at the time the ATS was enacted and today. And petitioners note the history of holding entities like ships directly responsible for piracy, one of the paradigm violations of the law of nations that the ATS was intended to reach. Amicus briefs filed by Professors of Legal History and by Procedural and Corporate Law Professors discuss the liability of juridical entities at the time the ATS was enacted and today.

In Sosa v. Alvarez-Machain, the Supreme Court suggested that it would look for "legislative guidance" in shaping the federal-common-law cause of action under the ATS. Petitioners note that most federal statutes authorize corporate liability. But they point in particular to the ATA-the statute that U.S.-citizen plaintiffs successfully used to sue Arab Bank-which creates a cause of action for victims of terrorism and, like the ATS, does not distinguish between corporations and natural persons as defendants. Respondent Arab Bank, on the other hand, argues that the Supreme Court should look for guidance to the Torture Victim Protection Act (TVPA), which Congress passed in 1992 to create an express cause of action for torture and extrajudicial killing. In Mohamad v. Palestinian Authority, the Supreme Court held that Congress limited liability to natural persons by using the word "individual," a word not found in the ATS.

The amicus brief filed by the United States agrees with petitioners that the ATS cause of action should reach corporate defendants. The United States notes that the TVPA is expressly limited to natural persons by virtue of the word "individual," while the ATS does not distinguish among classes of defendants. The United States also points to the long history of corporate tort liability in England and the United States. Finally, the United States notes the early understanding that corporations could be plaintiffs under the ATS and that excluding corporations as defendants would be in "considerable tension" with that understanding.

The last point suggests a more general reason why the Supreme Court may be reluctant categorically to exempt corporations from ATS claims. The Court has been criticized in recent years for extending the rights of natural persons to corporations in cases like Citizens United v. FEC. Whether or not such criticism is justified, it would certainly seem odd to many Americans to say that corporations can have the rights of natural persons but cannot be held liable like natural persons when they violate human rights.

Other Grounds

Respondent Arab Bank argues that if the Supreme Court overturns the Second Circuit's categorical prohibition of ATS suits against corporations, it should affirm dismissal of the claims in this case on other grounds because of the harm this case is causing to Jordan and by extension to U.S. foreign policy in the Middle East. This is an argument seconded in various ways in amicus briefs filed by the Kingdom of Jordan, the Central Bank of Jordan, the Union of Arab Banks, the Institute of International Bankers, and Former State Department Officials. On the other hand, Senators Sheldon Whitehouse and Lindsey Graham, Former Counterterrorism and National Security Officials, and Financial Regulation Scholars argue that civil liability for terrorist financing is essential to combatting terrorism.

As for specific alternative grounds, Arab Bank argues that routing wire transfers through New York is not sufficient to satisfy Kiobel's "touch and concern" test, that deciding the case "would force federal courts to wade into profoundly sensitive foreign-policy issues," and that financing terrorism is not an actionable violation of customary international law under the Sosa standard. The United States also suggests that routing wire transfers through New York may not be sufficient to meet the "touch and concern" test in ATS cases, though its brief cautions that "the government could potentially rely on such activity as the basis for a criminal indictment or civil enforcement action." To prevent prolonging the suit, the United States suggests that the "touch and concern" issue should be resolved directly by the Second Circuit on remand. Petitioners simply argue that the other grounds raised by Arab Bank should be handled by the lower courts on remand under the ordinary procedures of appellate review.

Arab Bank's heavy emphasis on other grounds might make one doubt its confidence in its arguments with respect to corporate liability. But if the Supreme Court were to reverse the Second Circuit's categorical ban on corporate liability in ATS suits, Arab Bank would still have a number of ways to argue that this particular suit should be dismissed. More generally, as I have explained elsewhere, ATS suits against corporations will continue to face a number of significant challenges, from establishing personal jurisdiction, to meeting the mens rea standard for aiding and abetting liability, to satisfying Kiobel's "touch and concern" test. Sosa also raised the possibility of "case-specific deference to the political branches" if the State Department files a statement of interest addressing foreign policy concerns, something it has not done in Jesner.

Four years ago, in Kiobel, the Supreme Court did what Arab Bank now suggests. It avoided the corporate liability question and resolved the case on other grounds. The circuit split that the Court preserved is now six years old. Every other circuit to have addressed the question has concluded that the Second Circuit is wrong.  Rather than duck the question again and have to grant cert for a third time, the Supreme Court should take this opportunity to decide whether the ATS categorically forecloses corporate liability.

Professor Elizabeth Joh is co-hosting a podcast, “What Trump Can Teach Us about Con Law,” that quickly shot to the top of the iTunes charts. Produced by Professor Joh with Roman Mars, host and creator of the independently produced podcast “99% Invisible,” the podcast aims to “take the extreme actions of the President of the United States and channel that chaos into learning our Constitution like we never have before.”

In the introductory episode, Mars said that the show was inspired by one of Professor Joh’s Twitter messages: “Teaching Constitutional Law in 2017 means glancing at twitter every five minutes before class.” 

Joh explains that Constitutional Law is an important course, but one that can be somewhat dry. As of late, the subject has taken on a sense of urgency, as the President’s actions have raised new and challenging constitutional law issues.

Mars proposed creating a podcast based on Joh’s observations, and the result has been “What Trump Can Teach Us about Con Law,” which launched June 7 and quickly rose to the top of the iTunes “Top Podcasts” list. (The podcast was No. 2 on the iTunes charts the following week.)

“I like this idea that maybe we have a president who is kind of stress-testing the Constitution, really giving us a sense of ‘What are the limits of each of the different provisions that he seems to be challenging?’” said Joh.  “That’s really important because it’s forcing us to think about things and wonder, ‘Do we have answers to some of these questions?’”

Madhavi Sunder, an influential scholar of law and culture and Senior Associate Dean for Academic Affairs, has been appointed as the Daniel J. Dykstra Endowed Chair at UC Davis School of Law.

Sunder joined UC Davis School of Law in 1999 and was elevated to Senior Associate Dean in 2015. She was named a Carnegie Scholar in 2006 and has been a Visiting Professor of Law at Yale Law School, the University of Chicago Law School, and Cornell Law School. Her work traverses numerous fields, from intellectual property to human rights law and the First Amendment. She has published in leading law journals including the Yale Law Journal, California Law Review, and Texas Law Review, among others. Her article "IP3," published in the Stanford Law Review in 2006, ranks among the top 25 most-cited Intellectual Property articles of the last decade and as the No. 1 most-cited International IP article of the past five years. Her book, "From Goods to a Good Life: Intellectual Property and Global Justice," was published by Yale University Press in 2012.

"Dean Sunder is a world-class scholar whose work addresses some of the most important issues in contemporary society: technology, intellectual property, and social justice," said Dean Kevin R. Johnson. "UC Davis School of Law is proud to recognize her accomplishments with the Daniel J. Dykstra Endowed Chair."

Dean Sunder succeeds Professor and Dean Emeritus Rex Perschbacher, who was the inaugural holder of the Dykstra Chair. The chair is awarded to a faculty member who demonstrates "outstanding scholarship and teaching and is committed to the ideals of founding School of Law faculty member Dan Dykstra." Dykstra, one of the first faculty members hired at UC Davis School of Law in 1965, rose to become Dean from 1971 to 1974 and remained at King Hall until his retirement. Alumni, friends, and family of the late Dan Dykstra provided funding for the the Daniel J. Dykstra Endowed Chair to honor his memory.

(Cross-posted from Balkinization)

Chris Elmendorf