Latest Scholarship

December 19, 2014

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 16, No. 6

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

What follows here is the most recent collection of papers:

"Corporate Social Responsibility in India" 
The Conference Board Director Notes No. DN-V6N14 (August 2014)
UC Davis Legal Studies Research Paper No. 399

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu
SHRUTI RANA, University of Maryland
Email: shrutirana@yahoo.com

In an era of financial crises, widening income disparities, and environmental and other calamities linked to some corporations, calls around the world for greater corporate social responsibility (CSR) are increasing rapidly. Unlike the United States and other major players in the global arena, which have largely emphasized voluntary approaches to the adoption and spread of CSR, India has chosen to pursue a mandatory CSR approach. This report discusses India's emerging CSR regime and its potential strengths and weaknesses.

"The Advent of the LLP in India" 
Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations (Robert W. Hillman and Mark J. Loewenstein eds.) (Edward Elgar Publishing, 2015, Forthcoming)
UC Davis Legal Studies Research Paper No. 408

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

In 2008, India passed a ground-breaking law to introduce the Limited Liability Partnership form into Indian business law. The Indian LLP Act was the first major introduction of a new business form in India in over 50 years. While the partnership and corporate forms (i.e. companies under the Indian Companies Act) have long flourished in India, both forms have presented challenges for certain Indian businesses. The Indian government's impetus for the LLP Act was to develop a business association form that could better meet the needs of entrepreneurs and professionals with respect to liability exposure, regulatory compliance costs and growth. This chapter begins with a broad overview of the political and legislative process which led to the adoption of the LLP Act. It then addresses the critical aspects of the Indian LLP Act, and analyzes some of the challenges and uncertainties that may derail the success of the LLP form.

"Reed v. Town of Gilbert: Signs of (Dis)Content?" 
NYU Journal of Law & Liberty, Forthcoming
UC Davis Legal Studies Research Paper No. 403

ASHUTOSH AVINASH BHAGWAT, University of California, Davis - School of Law
Email: aabhagwat@ucdavis.edu

This essay provides a preview of the Reed v. Town of Gilbert, Arizona, a case currently (OT 2014) pending in the Supreme Court. The case concerns the regulation of signs by a town government, and requires the Supreme Court to resolve a three-way circuit split on the question of how to determine whether a law is content-based or content-neutral for First Amendment purposes. The basic question raised is whether courts should focus on the face of a statute, or on the legislative motivation behind a statute, in making that determination. I demonstrate that under extant Supreme Court doctrine, the focus should clearly be on the face of the statute, and that under this approach the Town of Gilbert's sign regulation is (contrary to the Ninth Circuit) clearly content-based.

That the Ninth Circuit erred here is, however, not the end of the matter. More interesting is why it erred. I argue that the Ninth Circuit's resistance to finding Gilbert's ordinance content-based was based on subterranean discontent with the most basic principle of modern free speech doctrine - that all content-based regulations are almost always invalid. At heart, what the Gilbert ordinance does is favor signs with political or ideological messages over other signs. Current doctrine says that this is problematic. I question whether that makes any sense. Given the broad consensus that the primary purpose of the First Amendment is to advance democratic self-government, why shouldn't legislators, and courts, favor speech that directly advances those purposes over other speech, especially when allocating a scarce resource such as a public right of way? Given the brevity of this essay, I only raise but do not seek to answer this question, but argue that it is worthy of further attention by the Court (and of course by scholars).

"Brand New World: Distinguishing Oneself in the Global Flow" 
UC Davis Law Review, Vol. 27, No. 2, December 2013
UC Davis Legal Studies Research Paper No. 410

MARIO BIAGIOLI, University of California, Davis - School of Law
Email: mbiagioli@ucdavis.edu
ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu
MADHAVI SUNDER, University of California, Davis - School of Law
Email: msunder@ucdavis.edu

Ancient physicians engaged in property disputes over the seals they impressed on the containers of their medications, making brand marks the oldest branch of intellectual property. The antiquity of brand marks, however, has not helped their proper understanding by the law. While the conceptual and historical foundations of copyrights and patents continue to be part and parcel of contemporary legal debates, the full history and theorizing on business marks is largely external to trademark doctrine. Furthermore, with only a few and by now outdated exceptions, whatever scholarship exists on these topics has been performed mostly not by legal scholars but by archaeologists, art historians, anthropologists, sociologists, and historians of material culture. Such a striking imbalance suggests that the law is more eager to assume and state what trademarks should be rather than understand how they actually work today. Nor does the law often acknowledge the many different ways in which marks have always been deployed to distinguish both goods and their makers. This is not just a scholarly problem: given the extraordinary importance of brands in the global economy, the growing disjuncture between the way brands function in different contexts and cultures and trademark law's simplified conceptualization of that function has become a problem with increasingly substantial policy implications.

"Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule" 
Boston University Law Review, Vol. 94, No. 5, 2014
UC Davis Legal Studies Research Paper No. 411

GABRIEL J. CHIN, University of California, Davis - School of Law
Email: gjackchin@gmail.com

In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to "preclear" changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive voting rights legislation in the Constitution's Guarantee Clause, in addition to the Fourteenth and Fifteenth Amendments. The Court has made clear that the Guarantee Clause is a power granted exclusively to Congress and that questions of its exercise are nonjusticiable. It is also clear from the Federalist Papers and from scholarly writing - as well as from what little the Court has said - that the purpose of the Guarantee Clause is to protect majority rule. That is precisely what was at issue after the Civil War when Congress first used the Guarantee Clause to protect African American votes. As an absolute majority in three states and over forty percent of the population in four others, African Americans possessed political control when allowed to vote; when disenfranchised, they were subjected to minority rule. African Americans are no longer the majority in any state. But in a closely divided political environment, whether African Americans and other minorities can vote freely may be decisive in many elections. For this reason, Congress could legitimately ground a revised Voting Rights Act in the Guarantee Clause, and the Court should treat its validity as a nonjusticiable political question committed by the Constitution to Congress.

"Wills Law on the Ground" 
UCLA Law Review, Vol. 62, 2015 Forthcoming
UC Davis Legal Studies Research Paper No. 404

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

Traditional wills doctrine was notorious for its formalism. Courts insisted that testators strictly comply with the Wills Act and refused to consider extrinsic evidence to construe instruments. However, the 1990 Uniform Probate Code revisions and the Restatement (Third) of Property: Wills and Donative Transfers replaced these venerable bright-line rules with fact-sensitive standards in an effort to foster individualized justice. Although some judges, scholars, and lawmakers welcomed this seismic shift, others objected that inflexible principles provide clarity and deter litigation. But with little hard evidence about the operation of probate court, the frequency of disputes, and decedents' preferences, these factions have battled to a stalemate. This Article casts fresh light on this debate by reporting the results of a study of every probate matter stemming from deaths during the course of a year in a major California county. This original dataset of 571 estates reveals how wills law plays out on the ground. The Article uses these insights to analyze the issues that divide the formalists and the functionalists, such as the requirement that wills be witnessed, holographic wills, the harmless error rule, ademption by extinction, and anti-lapse.

"Can Human Embryonic Stem Cell Research Escape its Troubled History?" 
44 Hastings Center Report 7 (Nov.-Dec. 2014)
UC Davis Legal Studies Research Paper No. 409

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

In 2013 and 2014, three U.S.-based research teams each reported success at creating cell lines after somatic cell nuclear transfer with human eggs. This essay assesses the disclosures about how oocytes were obtained from women for each of the three projects. The three reports described the methods used to obtain eggs with varying degrees of specificity. One description, in particular, provided too little information to assess whether or not the research complied with law or other ethical norms. This essay then considers methodological transparency as an ethical principle. Situating the research within the ethical and moral controversies that surround it and the high-profile fraudulent claims that preceded it, the essay concludes that transparency about methodology, including the means of obtaining human cells and tissues, should be understood as an ethical minimum.

"Evidence of a Third Party's Guilt of the Crime that the Accused is Charged with: The Constitutionalization of the SODDI (Some Other Dude Did It) Defense 2.0" 
UC Davis Legal Studies Research Paper No. 401

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

Defense counsel have employed a version of the SODDI defense for decades. The late Johnny Cochran successfully employed the defense in the O.J. Simpson prosecution, and the legendary fictional defense attorney Perry Mason used the defense in all his cases.

However, in most jurisdictions there are significant limitations on the availability of the defense. In an 1891 decision, the United States Supreme Court announced that evidence of a third party's misconduct is admissible only if it has a "legitimate tendency" to establish the accused's innocence. Today most jurisdictions follow a version of the "direct link" test. Under this test, standing alone evidence of a third party's motive or opportunity to commit the charged offense is inadmissible unless it is accompanied by substantial evidence tying the third party to the commission of the charged crime. Moreover, the evidence that the accused proffers to support the defense must satisfy both the hearsay and character evidence rules. If the defense offers out-of-court statements describing the third party's conduct, the statements must fall within an exemption from or exception to the hearsay rule. If the defense attempts to introduce evidence of the third party's perpetration of offenses similar to the charged crime, the defense must demonstrate that the evidence is admissible on a noncharacter theory under Federal Rule of Evidence 404(b)(2).

However, a new version of the SODDI defense has emerged - SODDI 2.0. When the defense relies on this theory, the accused makes a more limited contention. The defense does not contend that reasonable doubt exists because there is admissible evidence of the third party's guilt. Rather, the defense argues that there is reasonable doubt because the police neglected to investigate the potential guilt of a third party who was a plausible person of interest in the case. Two 2014 decisions, one from the Court of Appeals for the Second Circuit and another from an intermediate Utah court, approved this version of the defense. Even more importantly, both courts ruled that the trial judge violated the accused's constitutional right to present a defense by curtailing the accused's efforts to develop the defense at trial.

The advent of this new version of the defense is both significant and controversial. The development is significant because the defense can often invoke this version of the defense when the restrictions on the traditional SODDI defense preclude the accused from relying on the traditional defense. As the two 2014 decisions point out, when the defense invokes the 2.0 version of the defense, the hearsay rule does not bar testimony about reports to the police about the third party's misconduct. Under the 2.0 version of the defense, those reports are admissible as nonhearsay to show the reports' effect on the state of mind of the police officers: putting them on notice of facts that should have motivated them to investigate the third party. Similarly, when the defense relies on the 2.0 version of the defense, the prosecution cannot invoke the character evidence prohibition to bar testimony that the third party has committed offenses similar to the charged crime. The prohibition applies only when the ultimate inference of the proponent's chain of reasoning is that the person engaged in conduct consistent with his or her character trait. In this setting, the prohibition is inapplicable because the ultimate inference is the state of mind of the investigating officers.

Since the restrictions on the new version of the SODDI defense are much laxer than those on the traditional defense, the advent of this defense is also controversial. Are the inferences from the 2.0 version of the defense so speculative that as a matter of law, the defense is incapable of generating reasonable doubt? Moreover, is it wrong-minded to recognize a version of the defense with such minimal requirements when the prevailing view is that traditional version is subject to much more rigorous requirements?

This article addresses those questions and concludes that it is legitimate to recognize the SODDI defense 2.0. In the past few decades, there has been a growing realization of the incidence of wrongful convictions. In the late Johnny Cochran's words, some of those convictions were a product of a "rush to judgment" by the police. The recognition of the SODDI defense 2.0 will provide a significant disincentive to such premature judgments by police investigators.

"Should Arrestee DNA Databases Extend to Misdemeanors?" 
Recent Advances in DNA & Gene Sequences, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 406

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

The collection of DNA samples from felony arrestees will likely be adopted by many more states after the Supreme Court's 2013 decision in Maryland v. King. At the time of the decision, 28 states and the federal government already had arrestee DNA collection statutes in places. Nevada became the 29th state to collect DNA from arrestees in May 2013, and several others have bills under consideration. The federal government also encourages those states without arrestee DNA collection laws to enact them with the aid of federal grants. Should states collect DNA from misdemeanor arrestees as well? This article considers the as yet largely unrealized but nevertheless important potential expansion of arrestee DNA databases.

"Racial Profiling in the 'War on Drugs' Meets the Immigration Removal Process: The Case of Moncrieffe v. Holder" 
University of Michigan Journal of Law Reform, Forthcoming
UC Davis Legal Studies Research Paper No. 402

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

This paper is an invited contribution to an immigration symposium in the Michigan Journal of Law Reform.

In 2013, the Supreme Court in Moncrieffe v. Holder rejected a Board of Immigration Appeals order of removal from the United States of a long-term lawful permanent resident based on a single criminal conviction involving possession of a small amount of marijuana. In so doing, the Court answered a rather technical question concerning the definition of an "aggravated felony" under the U.S. immigration laws.

Because the arrest and drug conviction were not challenged in the federal removal proceedings, the Court in Moncrieffe v. Holder did not have before it the full set of facts surrounding the state criminal prosecution of Adrian Moncrieffe. However, examination of the facts surrounding the criminal case offers important lessons about how the criminal justice system works in combination with the modern immigration removal machinery to disparately impact communities of color. By all appearances, the traffic stop that led to Moncrieffe's arrest is a textbook example of racial profiling.

This Article considers the implications of the facts and circumstances surrounding the stop, arrest, and drug crimination of Adrian Moncrieffe for the racially disparate enforcement of the modern U.S. immigration laws. As we shall see, Latina/os, as well as other racial minorities, find themselves in the crosshairs of both the modern criminal justice and immigration removal systems.

Part II of the Article provides details from the police report of the stop and arrest that led to Adrian Moncrieffe's criminal conviction. The initial stop for a minor traffic infraction is highly suggestive of a pretextual traffic stop of two Black men on account of their race. Wholly ignoring the racial tinges to the criminal conviction, the U.S. Supreme Court only considered the conviction's immigration removal consequences - and specifically the Board of Immigration Appeals' interpretation of the federal immigration statute, not the lawfulness of the original traffic stop and subsequent search.

The police report describes what appears to be a routine traffic stop by a police officer who, while apparently trolling the interstate for drug arrests in the guise of "monitoring traffic." The officer stopped a vehicle with two Black men - "two B/M's," as the officer wrote - based on the tinting of the automobile windows. Even if the stop and subsequent search did not run afoul of the Fourth Amendment, Moncrieffe appears to have been the victim of racial profiling. A police officer, aided by a drug sniffing dog, in drug interdiction efforts relied on a minor vehicle infraction as the pretext to stop two Black men traveling on the interstate in a sports utility vehicle with tinted windows.

The Moncrieffe case exemplifies how a racially disparate criminal justice system exacerbates racially disparate removals in a time of record-setting deportations of noncitizens. Although he was fortunate enough to stave off deportation and separation from an entire life built in the United States, many lawful permanent residents are not nearly so lucky.

"Social Innovation" 
Washington University Law Review, Vol. 92, No. 1, 2014
UC Davis Legal Studies Research Paper No. 407

PETER LEE, University of California, Davis - School of Law
Email: ptrlee@ucdavis.edu

This Article provides the first legal examination of the immensely valuable but underappreciated phenomenon of social innovation. Innovations such as cognitive behavioral therapy, microfinance, and strategies to reduce hospital-based infections greatly enhance social welfare yet operate completely outside of the patent system, the primary legal mechanism for promoting innovation. This Article draws on empirical studies to elucidate this significant kind of innovation and explore its divergence from the classic model of technological innovation championed by the patent system. In so doing, it illustrates how patent law exhibits a rather crabbed, particularistic conception of innovation. Among other characteristics, innovation in the patent context is individualistic, arises from a discrete origin and history, and prioritizes novelty. Much social innovation, however, arises from communities rather than individual inventors, evolves from multiple histories, and entails expanding that which already exists from one context to another. These attributes, moreover, apply in large part to technological innovation as well, thus revealing how patent law relies upon and reinforces a rather distorted view of the innovative processes it seeks to promote. Moving from the descriptive to the prescriptive, this Article cautions against extending exclusive rights to social innovations and suggests several nonpatent mechanisms for accelerating this valuable activity. Finally, it examines the theoretical implications of social innovation for patent law, thus helping to contribute to a more holistic framework for innovation law and policy.

"Brief of Interested Law Professors as Amici Curiae Supporting Respondent in Direct Marketing Association v. Brohl" 
Stanford Public Law Working Paper No. 2516159
San Diego Legal Studies Paper No. 14-71
UC Davis Legal Studies Research Paper No. 400
UC Berkeley Public Law Research Paper No. 2516159
UCLA School of Law Research Paper No. 14-19

DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu
ALAN B. MORRISON, George Washington University - Law School
Email: abmorrison@law.gwu.edu
JOSEPH BANKMAN, Stanford Law School
Email: JBANKMAN@LELAND.STANFORD.EDU
JORDAN M. BARRY, University of San Diego School of Law
Email: jbarry@sandiego.edu
BARBARA H. FRIED, Stanford Law School
Email: bfried@stanford.edu
DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
ANDREW J. HAILE, Elon University School of Law
Email: ahaile@brookspierce.com
KIRK J. STARK, University of California, Los Angeles (UCLA) - School of Law
Email: STARK@LAW.UCLA.EDU
JOHN A. SWAIN, University of Arizona - James E. Rogers College of Law
Email: john.swain@law.arizona.edu
DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

The petitioner in this case has framed the question presented as follows: "Whether the Tax Injunction Act bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration."

Amici agree with the respondent, the State of Colorado, that the Tax Injunction Act bars federal courts from enjoining the operation of the Colorado Statute at issue in this case because this lawsuit is intended to create the very kind of premature federal court interference with the operation of the Colorado use tax collection system that the TIA was designed to prevent. To assist the Court in understanding the application of the TIA to this case, amici (i) place the reporting requirements mandated by the Colorado Statute in the broader context of tax administration and (ii) explain the potential interaction between a decision on the TIA issue in this case and the underlying dispute concerning the dormant Commerce Clause.

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

Amici law professors contend that the centrality of third-party reporting to tax administration in general, and its aptness for this problem in particular, indicate that enjoining the operation of the Colorado Statute constitutes "restrain[ing] the assessment, levy or collection" of Colorado's use tax.

Amici also observe, however, that even a narrow ruling on the scope of the TIA in the Supreme Court could have an unexpected - and we would argue undesirable - impact on the federalism concerns that we think should decide this case. This is because any interpretation of the Colorado Statute for purposes of the TIA made by the Court might be erroneously construed as carrying over to interpreting the Statute for purposes of the dormant Commerce Clause.

We think it likely and reasonable for the courts below to look to the Supreme Court's decision on the TIA for guidance as to what test to apply under the dormant Commerce Clause. However, amici fear that a decision that held that Colorado's reporting requirement is integral to Colorado's "tax collection" for purposes of the TIA will exert a gravitational pull on the lower courts, encouraging them to apply the physical presence test from Quill Corp. v. North Dakota, 504 U.S. 298 (1992) to the Colorado Statute. The Quill test is an especially strict test under the dormant Commerce Clause, and one arguably meant only for "taxes." Thus, a victory for sensible state tax administration and federalism in this Court could be transmuted into a defeat for those principles below. Amici believe that NFIB v. Sebelius, 132 S. Ct. 2566 (2012), teaches that an answer on the TIA does not compel an answer concerning the dormant Commerce Clause. We call this issue to the Court's attention so that the Court is aware of how a decision on the TIA issue might be used - or misused - when the case reaches the merits, either in the state or federal court system.

"Non-Citizen Nationals: Neither Aliens Nor Citizens" 
UC Davis Legal Studies Research Paper No. 405

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

The modern conception of the law of birthright citizenship operates along the citizen/noncitizen binary. Those born in the United States generally acquire automatic U.S. citizenship at birth. Those who do not are regarded as non-citizens. Unbeknownst to many, there is another form of birthright membership category: the non-citizen national. Judicially constructed in the 1900s and codified by Congress in 1940, non-citizen national was the status given to people who were born in U.S. territories acquired at the end of the Spanish-American War in 1898. Today, it is the status of people who are born in American Samoa, a current U.S. territory.

This Article explores the legal construction of non-citizen national status and its implications for our understanding of citizenship. On a narrow level, the Article recovers a forgotten part of U.S. racial history, revealing an interstitial form of birthright citizenship that emerged out of imperialism and racial restrictions to citizenship. On a broader scale, this Article calls into question the plenary authority of Congress over the territories and power to determine their people's membership status. Specifically, this Article contends that such plenary power over the citizenship status of those born in a U.S. possession conflicts with the common law principle of jus soli and the Fourteenth Amendment's Citizenship Clause. Accordingly, this Article offers a limiting principle to congressional power over birthright citizenship.

December 19, 2014

The Year in Constitutional Review: Our Top 5 Constitutional Developments of 2014 (And None of Them Is a Supreme Court Decision!)

Co-authored with Professor Alan Brownstein. Cross-posted from Justia's Verdict.

As 2014 draws to a close, we thought it appropriate to reflect on some of the most significant constitutional developments of the past year. Recognizing that any short-list requires difficult choices, we present our catalog of five noteworthy constitutional events or trends (in no specific order) below. Most interestingly, none of the five involves a particular 2014 ruling from the Supreme Court; instead, the list shows that other institutional actors (sometimes feeding off what the Court has done in the past and often acting completely independently from the Court) are crucial in giving meaning to the Constitution.

#1. President Obama's Announcement of Immigration Enforcement (or non-Enforcement) Priorities

One of the biggest constitutional changes over the last century has surely been the rise in power and prominence of the presidency. The President and his executive branch have grown in influence and stature for a number of reasons. One is the modern need (in a world of increasing economic complexity and international linkages) for the federal government to make decisions quickly, decisively, and based on specialized expertise (as in the Great Depression) and sometimes making use of information that cannot be made fully public (as in the War on Terror). Another is the fact that, although the electoral college is still part of our constitutional fabric, we have moved in the direction of popular election of the President, such that he garners far more votes nationwide than does any other elected official, and thus has a special claim to national electoral legitimacy-unlike that of even the Speaker of the House and the Senate Majority leader, the two elected leaders of Congress.

Many people embrace broadened Presidential authority, and many lament it. Some folks seem to have evolved in this regard. An example of such evolution might be Chief Justice John Roberts, who seemed to advocate for broad executive powers as a young government lawyer but who has recently bemoaned the fact that "the Framers could hardly have envisioned today's vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social and political activities." But love it or hate it, broad executive discretion about whether and how to enforce laws is part of the federal constitutional landscape. And President Obama's recent announcement removing the threat of deportation for four million or so persons who entered or stayed in the United States in violation of immigration laws is a good example. Drawing on his key role in foreign affairs and law enforcement, and reminding the American people that he was reelected in part to manage the immigration problem (thus playing on both the reasons for presidential ascension mentioned above), Mr. Obama laid out his plans for how best to implement immigration laws in the near term. His announcement was a reminder of how, in the normal run of things, the President makes a lot of important decisions over which the Supreme Court may never have a say. (There have been lawsuits filed that test the President's actions here, and lower court judges are likely to express a range of opinions on the matter, but it remains unclear how the lower federal courts will ultimately adjudicate this issue and whether the Supreme Court will wade into this thicket.)

#2. The Events in Ferguson and NYC Regarding Police Actions Toward African American Men

A second set of events, involving local government rather than the federal government, raises important normative questions about race relations in the United States and public policy questions about the best way both to avoid these tragedies and to deal with them when they occur. We speak here, of course, of recent events in Ferguson, Missouri, and in New York City involving the killing of unarmed African Americans by police officers and the failure of grand juries to indict the officers involved. These police actions and grand jury decisions, like President Obama's immigration announcement, remind us of how powerful a device executive discretion is within our constitutional system.

But these episodes also remind us of another important constitutional theme. The 14th Amendment proclaims that "No State shall . . . deny to any person the equal protection of the laws." Surely, this provision requires the equal treatment of black and white Americans in the criminal justice system. If the equal protection of the laws means anything, it must mean that the use of force by police officers against persons alleged to violate the law cannot vary depending on the race of the perpetrator. Similarly, equal protection must require that prosecutors and grand juries ignore the race of both the police officer and the victim of the officer's conduct in determining whether the officer's use of force has violated the law.

Yet the Ferguson and New York City events reveal how little bite this constitutional guarantee has when the law gives government actors substantial, unguided discretion in performing their duties. Police officers have considerable discretion in determining whether and how much force should be used in the performance of their duties. Prosecutors have enormous discretion in deciding whether or not to bring charges to a grand jury and in determining how they will conduct the grand jury proceeding. Grand juries also have tremendous discretion. They can decide to indict a "ham sandwich," as the saying goes, or they can decide not to indict a police officer who has choked someone to death.

Because, in circumstances involving official discretion, it is often very difficult to determine the extent to which race influenced state action, the constitutional guarantee of equal protection has little ability to control such decision making. Perhaps the Constitution's primary and most effective role in these events is protecting the rights of individuals and groups to protest what they see as unsanctioned violations of the equal protection of the laws.

#3. Same-Sex Marriage in the Lower Courts

Equality was a theme not just in the Ferguson and New York controversies, but also in the treatment of same-sex marriage by the lower courts this year. Last year, in United States v. Windsor, the Supreme Court teed up but did not resolve the question of whether states were prohibited by the Fourteenth Amendment from treating same-sex marriages differently from opposite-sex marriages. And the lower federal courts have taken up that question in earnest ever since. Until the Sixth Circuit's decision to uphold same-sex marriage bans in four states this fall broke the momentum, same-sex marriage advocates had achieved an overwhelming number of lower court victories; four U.S. Courts of Appeals and over twenty federal district courts had struck down state laws discriminating against same-sex marriage. Indeed, until the Sixth Circuit's ruling by a divided three-judge panel in November, many commentators had concluded that the Supreme Court would not even take a marriage equality case anytime soon because the issue had essentially been resolved by the lower courts. Many of the lower court rulings took their cue from Windsor, of course, and now that the Sixth Circuit has created a split the Supreme Court will likely weigh in relatively soon-so no one is arguing the Supreme Court is irrelevant in this debate-but lower courts have definitely framed the issue and developed competing arguments in a way that makes it much harder for the Supreme Court to reject the right of same-sex couples to marry. For the marital equality movement, 2014 was the year of the lower courts.

# 4. Abortion Rights

The past year saw states continuing the recent trend of adopting and defending significant regulations of abortion services and access. The regulations vary in their content. Several states have enacted statutes (some of which are subject to lower court injunctions) that ban an abortion 20 weeks after fertilization occurs or at an even earlier time during the gestation period. Other regulations restrict the provision of medication used to induce an abortion. Other laws, responding to the new health care framework created by the Affordable Care Act, prohibit insurance offered through the Act's exchanges from covering abortions. Yet other laws regulate clinics that provide abortion services by requiring them to comply with the building, equipment, and staffing standards applicable to an ambulatory surgical center or a hospital. They also require physicians performing abortions to have admitting privileges at a local hospital. The lower courts are continually reviewing the constitutionality of many of these regulations, but it is (aggressive) state legislatures that are driving this issue right now.

Certainly, the need for greater clarity in this area of the law is obvious. Under the doctrine initially evolving from Roe v. Wade, the Court applied strict scrutiny review to pre-viability abortion regulations that ostensibly furthered some important state interest, such as promoting the health of the mother, but also increased the cost of abortions or otherwise limited access to providers. Under this rigorous standard of review, a state had to demonstrate that its regulations furthered a compelling state interest and that the state adopted the least restrictive means to further its objectives. This two- pronged approach required courts to balance the effectiveness of a state's regulations against the burden the law imposed on the right to have an abortion.

In Planned Parenthood v. Casey, however, the Court collapsed the two-pronged approach used in prior cases and adopted a unitary standard. All pre-viability abortion regulations are now constitutionally permissible as long as they do not have "the purpose or effect of imposing an undue burden on women seeking abortion." This standard focuses on the magnitude of the burden, the percentage of women seeking abortions who will experience that burden, and whether the regulation serves some purpose other than the goal of inhibiting access to abortion services. The Court's application of this standard to various regulations in the Casey case itself has mystified both constitutional law scholars and lower courts. The number and highly restrictive nature of new abortion regulations may require Supreme Court intervention and clarification of this standard in the near future.

#5. The 2014 Congressional Election

Although we have highlighted the way institutions other than the Supreme Court (e.g., the President, local governments, lower courts, state legislatures) have helped shape the meaning of the Constitution in 2014, we would never deny the centrality of the Court itself in constitutional interpretation. And yet we must remember that the Court is not a static institution, but rather one whose membership and decisions change over time. So our final candidate for important constitutional developments of the year is the congressional election in November that saw the Republicans gain solid control of the U.S. Senate. Because replacing departing Justices with new members is the single most important way the Constitution has been kept responsive to the values of the people, decisions by the American electorate about who shall be the President (and nominate new members to the Court) and who shall control the Senate (and decide whether to confirm presidential nominations) are quintessentially important constitutional events. Regardless of whether a Democrat or Republican wins the White House in 2016, Republican control of the Senate for the foreseeable future is likely to influence the kind of persons appointed to the (closely divided) Court in the coming years, which in turn is likely to affect how the Court rules in many controversial constitutional areas. It is fitting, even as it is sometimes overlooked, that We the People remain the most important institutional actors in giving content to our basic government charter.

May 10, 2014

How the Biggest Supreme Court Victory for Affirmative Action a Decade Ago Contributed to the Defeat for Affirmative Action Last Month in the Schuette Case

Cross-posted from Justia's Verdict.

When the Supreme Court in Schuette v. Coalition to Defend Affirmative Action upheld the Michigan state constitutional ban on race-based affirmative action (known as Proposal 2) a few weeks ago by a 6-2 vote, the overall message that emerged from the decision seemed sensible enough: While the federal Constitution permits states, under certain circumstances, to make limited use of race in allocating government benefits, nothing in the Constitution requires states to do so, and a decision by the people of a state to prohibit all race-based affirmative action preferences is permissible.

The Seattle Line of Cases on Which the Challengers to Proposal 2 Relied, Unsuccessfully

The problem with this straightforward message is that an earlier line of Supreme Court cases, running from the late 1960s until the early 1980s, held that while race-conscious programs may not be required, neither can they be terminated in certain problematic ways. The key decision in this line of authority is the intuitively attractive yet controversial and somewhat confounding 1982 ruling in Washington v. Seattle School District No. 1. In order to cure widespread de facto racial segregation in Seattle-area schools, Seattle School District No. 1 adopted a voluntary integration plan that extensively used race-based pupil reassignment and busing to eliminate one-race schools. The Seattle program prompted the people of Washington to enact Initiative 350, a statewide measure that barred local school districts throughout Washington from reassigning or busing for the purpose of racial integration, but continued to permit local districts to reassign or bus for all other educationally valid reasons.

By a 5-4 vote, the Court struck down the plebiscite. The Court declined to rest its holding on a finding of invidious racist intent on the part of the electorate. Instead, the Court invalidated Initiative 350 because the measure singled out racial busing-a program of particular importance to racial minorities-and moved this issue from the control of local decision-making bodies to central management at the statewide level, where minorities were less likely to enjoy democratic success. This selective and unfavorable treatment of public programs that were distinctively beneficial to minorities, the Court said, denied such minorities the equal protection right to "full participation in the political life of the community."

In the Seattle line of cases, the Supreme Court laid out a two-pronged test: First, a challenger must show that the law in question is "racial" or "race-based" in "character," in that it singles out for special treatment issues that are particularly associated with minority interests. Second, the challenger must show that the law imposes an unfair political process burden with regard to these "minority issues" by entrenching their unfavorable resolution. (Mere repeal by the very body that had adopted a policy benefitting minorities would not be problematic.)

The challengers to Proposal 2 in Michigan relied directly on this reasoning. First, they argued, Proposal 2 was racial in character in that it dealt specially with an issue-race-based affirmative action-that is of distinctive interest and benefit to racial minorities. Second, Proposal 2 dealt with this racial issue by entrenching a policy that was unfavorable to minorities at a level of government-the state constitution-where minorities are less likely to succeed than they are at lower levels, such as local government or university administration. The argument was that although Michigan may be free to repeal affirmative action programs, it cannot repeal such programs at a level higher than the one at which they were initially adopted, just as the State of Washington could not repeal racial busing at the statewide level, rather than the local level.

How the Justices Dealt With Seattle

In turning away this challenge, Justices Scalia and Thomas acknowledged that the Seattle case controlled, but concluded that it should be overruled. Justices Ginsburg and Sotomayor (who dissented in the Court's outcome) likewise thought Seattle governed, but they would preserve and apply Seattle, and would have struck down Proposal 2. (Justice Breyer distinguished Seattle on rather technical grounds, and Justice Kagan did not participate.)

In an important opinion that many view as the pivotal one in the case, Justice Kennedy, joined by two other Justices, concluded that the Seattle case may have been correctly decided, but that it did not govern the Proposal 2 matter. According to Justice Kennedy, Initiative 350 in Seattle was bad because it prevented the Seattle School District from dealing with a racial segregation problem to which the government itself had contributed. As Justice Kennedy put the point: "The Seattle Court, accepting the validity of the school board's busing remedy as a predicate to its analysis of the constitutional question, found that the State's disapproval of the [local] school board's busing remedy was an aggravation of the very racial injury in which the State itself was complicit."

Justice Kennedy disavowed any broader reading of the Seattle ruling, and in particular declined to accept the two-part analytic framework that the Court purported to apply in that case. As Justice Kennedy wrote:

The Seattle Court . . . establish[ed] a new and far-reaching rationale. Seattle stated that where a government policy "inures primarily to the benefit of the minority" and "minorities . . . consider" the policy to be "'in their interest,'" then any state action that "place[s] effective decisionmaking authority over" that policy "at a different level of government" must be reviewed under strict scrutiny. In essence, according to the broad reading of Seattle, any state action with a "racial focus" that makes it "more difficult for certain racial minorities than for other groups" to "achieve legislation that is in their interest" is subject to strict scrutiny. . . . And that reading must be rejected.

As Justice Scalia pointedly observed, Justice Kennedy's recharacterization of Seattle has serious problems:

[Justice Kennedy's opinion] reinterprets [Seattle] beyond recognition. . . . As for Seattle, what was really going on, according to [Justice Kennedy], was that Initiative 350 had the consequence (if not the purpose) of preserving the harms effected by prior de jure segregation. . . . [T]his describes what our opinion in Seattle might have been, but assuredly not what it was. The opinion assumes throughout that Seattle's schools suffered at most from de facto segregation, . . . that is, segregation not the "product . . . of state action but of private choices," having no "constitutional implications."

(As an aside, I find it somewhat ironic that Justice Scalia criticizes Justice Kennedy's manipulation of precedent here. Although I agree with him that Justice Kennedy does not adequately engage, but rather hollows out, Seattle, the writing that Justice Kennedy's opinion reminds me of most is Justice Scalia's own opinion in Employment Division of Oregon v. Smith, the 1990 religious freedom case in which Justice Scalia guts but does not forthrightly overrule old free exercise cases.)

The Post-Seattle Cases That Eclipsed Seattle's Essence

So if Justice Kennedy's (re)reading of Seattle is less than convincing, is there a way to justify his bottom line? For me, the best defense of the outcome in Schuette comes not from creative interpretations of Seattle, but from judicial and societal developments that have emerged after Seattle was decided. As Professor Evan Caminker and I have suggested in academic writings, the argument (whether one finds it convincing or not) would be that elimination of affirmative action programs today does not as clearly disadvantage racial minorities as did the Seattle initiative. Modern affirmative action programs are double-edged-Proposal 2 backers would argue-because such programs inflict stigmatic harm on minorities and impose tangible disadvantages on certain minority groups, even as the programs attempt to confer tangible benefits on some minority groups. This argument challenges, as overly simplistic, the notion that the programs terminated by the Proposal 2 "inure[ ] primarily to the benefit of the minority."

This argument would build on more recent Supreme Court cases that assuredly support such an ambivalent characterization of affirmative action programs. Over the past two-plus decades, City of Richmond v. J.A. Croson Co. and its progeny have justified strict scrutiny for purportedly "benign" race-conscious programs in part through renewed emphasis on certain costs that affirmative action programs threaten to impose on minorities (whether uniquely or along with others). According to the Court, such programs threaten to, among other things, embrace and "foster harmful and divisive stereotypes," which might "balkanize us into competing racial factions."

And this is precisely the basis on which Justice Kennedy declines to apply the Seattle framework. He reminds:

In cautioning against "impermissible racial stereotypes," this Court has rejected the assumption that "members of the same racial group-regardless of their age, education, economic status, or the community in which they live-think alike, share the same political interests, and will prefer the same candidates at the polls." . . . It cannot be entertained as a serious proposition that all individuals of the same race think alike. Yet that proposition would be a necessary beginning point were the Seattle formulation to control. . . .

Let me be clear: the suggestion that contemporary affirmative action programs do not primarily benefit racial minorities cannot easily be squared with the holding of Seattle (which is why I think Justice Scalia was correct that either Seattle or Proposal 2 had to be rejected). Initiative 350 eradicated voluntary racial busing-a race-conscious affirmative action program that, in its day, was extremely controversial, as both the majority and dissent in the Seattle case recognized. Racial busing imposed both practical and emotional costs on African American schoolchildren, and it generated interracial divisiveness and even hostility. So modern affirmative action is not easily distinguished from the programs involved in Seattle.

But, again, Seattle's judicial attitude in this respect has been eclipsed by more recent cases expressing much more skepticism about race-based affirmative action. The Seattle analysis may simply not survive the more recent cases, and if this is true the Court should have said Seattle is no longer good law, rather than manipulate the 1982 ruling in inventive but unpersuasive ways.

An Unlikely Contributor to Seattle's Demise: Grutter v. Bollinger

No one should be surprised that cases from the last 25 years like Croson (along with Adarand Constructors v. Pena, Parents Involved in Community Schools v. Seattle School District No. 1, among others)-all of which have made it considerably harder for states to engage in affirmative action-are in considerable tension with, and have effectively undermined, Seattle. What is surprising is that the single biggest judicial victory for affirmative action-the 2003 Grutter v. Bollinger case in which a 5-4 Court upheld the University of Michigan Law School's race-based affirmative action program-also might have (unwittingly) undermined Seattle. Indeed, Seattle's demise may have been baked into the very cake of Grutter's analysis.

To see this, we need shift focus from the alleged costs of affirmative action to its benefits. Justice O'Connor's reasoning upholding the Michigan Law School's affirmative action policy in Grutter-and the larger diversity justification trend of which Grutter is an example-emphasizes the advantages affirmative action creates for non-minorities, and in so doing erodes the idea that affirmative action is especially beneficial for underrepresented groups. As a pair of law professors observed years before Grutter, diversity is an appealing justification that may "enable an educational affirmative action program to pass constitutional muster because democratic and dialogic educational benefits accrue to all students" (emphasis added). And hear the words of Justice O'Connor in Grutter, defending the Michigan Law School plan without regard to whether it helps minorities in particular:

The[] benefits [of diversity] are 'important and laudable, because 'classroom discussion is livelier, more spirited, and simply more enlightening and interesting' when the students have 'the greatest possible variety of backgrounds.' . . . The Law School's claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. . . . In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and "better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." . . . These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. . . . What is more, high-ranking retired officers and civilian leaders of the United States military assert that, "[b]ased on [their] decades of experience," a "highly qualified, racially diverse officer corps . . . is essential to the military's ability to fulfill its principle mission to provide national security." . . . [And] [i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.

It is perfectly understandable that a "win-win" rationale for race-based affirmative action (that emphasizes how such programs benefit everyone) would be attractive, in both legislative and judicial arenas. But if affirmative action is styled in these terms only, then the Court could naturally think that the intended beneficiaries of affirmative action-the entire polity-should be empowered to decide whether they think the benefits outweigh the costs. Proposal 2 and measures like it are no longer as easily viewed as majorities cutting off programs that help minorities, since the elimination of affirmative action (on this view) hurts majorities as well.

Lest I be misunderstood, I should be clear that I do embrace the diversity rationale. But I wish it hadn't come about as a substitute for-as opposed to a supplement to-a remedial rationale that highlights the distinctive importance of access for certain minority racial groups. In the Croson ruling from a quarter century ago (involving a preference awarded to minority contractors in Richmond), the Court sent the message that the goal of remedying past discrimination was not one on which government should be able to act easily without detailed findings as to exactly what discrimination occurred, when, and by whom. No one denied that there had been overwhelming, pervasive, and persistent societal discrimination against African Americans in Richmond for generations. Yet the main opinion in Croson said, in dismissing the relevance of this history: "It is sheer speculation how many minority firms there would be [today] absent past societal discrimination." This is true, but to deny government officials the ability to redress past discrimination altogether, simply because the enormity of that task creates uncertainty about whether any proposed remedy is perfectly calibrated to the wrong, creates a perverse situation. The greater the past injustices, the more powerless the government is today to deal with their effects, which are undeniably real and lingering, but inevitably somewhat fuzzy in their particulars.

It is for this reason that the goal of remedying past discrimination has largely been abandoned as a legal justification for affirmative action programs, at least in the higher education setting, the area where debate remains most lively. Instead, diversity of the student body as a pedagogical asset is (understandably) the primary interest that universities assert (as they did in Grutter) to defend race-based programs. Again, I do not disagree with the idea that diversity can be a compelling interest. But I do think that most defenders of affirmative action, were they completely honest, would say that the remedial justification, especially in the case of African Americans, is the most natural, obvious, and compelling reason to maintain race-based programs. And this instinct explains why defenders of affirmative action generally believe that such programs are distinctively helpful to minorities, the very premise of the Seattle ruling that Justice Kennedy thinks cannot be acknowledged by government.

May 1, 2014

UC Davis law students seek to right historic wrong with posthumous California Bar admission of Chinese lawyer

More than a century after a New York lawyer was denied the opportunity to practice law in California because of state laws that barred Chinese immigrants from most careers and opportunities, UC Davis law students are seeking his posthumous admission to the California State Bar.

The students in the UC Davis School of Law Asian Pacific American Law Students Association (APALSA) are asking the State Bar of California, and eventually the California Supreme Court, to admit Hong Yen Chang, who was denied a license to practice law in California in 1890.

Chang attended Yale as part of the Chinese Educational Mission, a pioneering program initiated by the Chinese government. He then left the United States and later returned on his own to study law. He earned a degree from Columbia Law School in 1886 and sat for the New York bar exam by special act of the legislature. When he was admitted to the New York state bar, The New York Times reported that Chang was the first Chinese immigrant admitted to any bar in the United States. In 1890, he came to California with the intention of serving San Francisco's Chinese community as an attorney.

At that time, the federal Chinese Exclusion Act banned Chinese immigrants from naturalizing as citizens, and a California law prohibited noncitizens from practicing law in the state. Taken together, these laws made it impossible for people of Chinese descent to earn law licenses in the state. Chang petitioned the California Supreme Court, but was denied admission.

He went on to a distinguished career in banking and diplomacy, but his story was not forgotten. Now, the students are seeking a symbolic victory on behalf of Chang and others who suffered as a result of laws that discriminated against the Chinese.

"Admitting Mr. Chang would be a powerful symbol of our state's repudiation of laws that singled out Chinese immigrants for discrimination," said Gabriel "Jack" Chin, a professor at UC Davis School of Law and APALSA's faculty adviser on the project. "At the time Chang was excluded from the practice of law in California, discrimination against Chinese persons was widespread. Congress prohibited all Chinese immigration. Even the California Constitution dedicated an entire article to restricting the rights of Chinese residents."

The UC Davis School of Law California Supreme Court Clinic is representing APALSA in the case. It has formally requested the State Bar to support the project and will file a petition with the California Supreme Court seeking Chang's admission. The clinic, the first and only law school clinic of its kind, represents parties and amici in a wide range of both civil and criminal matters pending before the California Supreme Court.

Other states have posthumously admitted applicants who were excluded from their respective bars based on similar discriminatory laws. In 2001, the Washington Supreme Court admitted Takuji Yamashita, a Japanese immigrant who had been refused admission to the profession in 1902. And in 2010, the Pennsylvania Supreme Court posthumously admitted George B. Vashon, an African American who had been denied admission in 1847 because of race.  

Chang's descendants remain in the San Francisco Bay Area, including grandniece Rachelle Chong, the first Asian American to serve as a commissioner of the Federal Communications Commission and of the California Public Utilities Commission. "In my generation, our family is extremely fortunate to have three lawyers admitted to the California State Bar: my cousins Suzanne Ah Tye, Kirk Ah Tye, and myself," said Chong. "It would be fitting and right to have my granduncle's exclusion reversed by the California Supreme Court to ensure that justice, albeit late, is done. Our family is honored that the UC Davis APALSA students have taken up the issue of righting a terrible wrong."

"From its inception more than 40 years ago, UC Davis School of Law has been dedicated to the ideals of social justice and equality espoused by Dr. Martin Luther King Jr., for whom our law school building is named," said Dean Kevin R. Johnson. "This effort by our students and faculty to admit Hong Yen Chang to the California State Bar stands strongly within that tradition and is deserving of support."

For more information on the effort to gain bar admission for Hong Yen Chang, contact Professor Gabriel "Jack" Chin.

March 3, 2014

A Roundtable on the 1965 Immigration Act

Last Friday, Professors Jack Chin and Rose Villazor organized a day-long roundtable discussion at UC Davis School of Law of chapters of their forthcoming book, "Legislating a New America," on the 50th Anniversary of the Immigration Act of 1965. The book is under contract with Cambridge University Press and scheduled for release in 2015. 

 

The Immigration Act, which came on the heels of the Civil Rights Act of 1964, represented a monumental change to U.S. immigration law and, among other reforms, eliminated a discriminatory quotas system. 

Presenters and commentators included:

Atticus Lee, UC Davis Law

Bill Ong Hong, UC Davis Law

Brian Soucek, UC Davis Law

Gabriel “Jack” Chin, UC Davis Law

Giovanni Peri, UC Davis Economics

Jeanette Money and Kristina Victor, UC Davis Political Science

Kevin Johnson, UC Davis Law

Leticia Saucedo, UC Davis Law

Pratheepan Gulasekaram, Santa Clara School of Law

Raquel Aldana, McGeorge School of Law

Robyn Rodriguez and Valerie Francisco, UC Davis Asian American Studies

Rose Cuison-Villazor, UC Davis Law

Sarah Song, UC Berkeley School of Law

I must say that I was energized by the provocative and innovative quality of all the papers.  The book project will be extremely interesting reading.

February 14, 2014

The Ninth Circuit, in SmithKline v. Abbott Labs, Bars Lawyers From Removing Gay/Lesbian Jurors: Part Two in a Two-Part Series

Co-authored with Alan Brownstein. Cross-posted from Justia's Verdict.

In Part One of this series, we began to analyze the recent decision from the federal Ninth Circuit Court of Appeals in SmithKline Beecham Corp. v. Abbott Laboratories. The three-judge panel there held that, in light of the Supreme Court's decision last summer in United States v. Windsor (invalidating the federal Defense of Marriage Act, DOMA), all government discrimination on the basis of sexual orientation is subject to "heightened scrutiny" under the Equal Protection Clause and that, accordingly, it violates the Constitution for lawyers to use peremptory challenges to strike would-be jurors on account of the juror's sexual orientation. (For background on the Abbott case and the general topic of peremptory challenges, readers may want to consult Part One.) In particular, we discussed whether the Ninth Circuit was right to read Windsor to have signaled a decision by the Supreme Court that intermediate level scrutiny governed DOMA, and that intermediate level scrutiny should also govern all other sexual-orientation-based discrimination.

The Abbott decision is already influencing litigation involving discrimination against gays and lesbians far beyond the issue of jury selection. Earlier this week, for example, as a result of the Abbott court's reasoning and holding, the Governor and Attorney General of Nevada announced that they would no longer defend the state's ban on same-sex marriages in federal court because the arguments supporting the ban were "no longer defensible." In the space below, however, we limit our analysis to the implications of Abbott for peremptory challenges generally and sexual-orientation-based peremptory challenges in particular.

Do Peremptory Challenges Threaten to "Exclude Entire Classes of Individuals?"

As one of us has noted in earlier writings, including a column posted here, courts have been reluctant to expand the list of juror attributes on which peremptories may not be exercised in part because of a concern over slippery slopes. If peremptories cannot be used on the basis of race, and gender and (now) sexual orientation, then what about disability, age, or alienage, etc.? While Judge Reinhardt's Ninth Circuit opinion in Abbott never really addresses this question directly, he implicitly suggests that limiting prohibitions on peremptories to only those groups that benefit from "heightened scrutiny" will arrest the slippery slope. In this regard, he analogizes to and quotes heavily from the cases the Court has handed down prohibiting race- and gender-based peremptories. He says, for example, drawing on the gender-based peremptory case, J.E.B. v. Alabama ex. rel. T.B., that "striking potential jurors on the basis of their gender harms 'the litigants, the community and the individual jurors' because it reinforces stereotypes and creates an appearance that the judicial system condones the exclusion of an entire class of individuals."

From one perspective, this kind of analysis is overblown particularly in cases like J.E.B. Peremptory challenges, even if used aggressively on the basis of gender, don't necessarily threaten to remove "an entire class of individuals" from juries, because both sides of a case get the same number of peremptories. If one side is removing women (as in J.E.B.), perhaps there is reason to believe the other side would be attempting to remove men. If these opposing uses of peremptories are equally effective, then there may be no reason to believe there would be fewer women on any particular jury, let alone across all juries.

The Special Case of Numerical Minorities, and Minorities Without a Natural Majority Counterpart

There are forceful responses to this suggestion, however, that may support Justice Reinhardt even though he doesn't really address this issue (or the nitty gritty of applying heightened scrutiny at all, for that matter.) First, the neutralizing effect of the opposing use of gender-based peremptories arises, if at all, only because men and women are roughly equal in number in most jurisdictions and (somewhat less so) in the draw of the would-be jurors and replacement jurors for any particular jury. But this neutralizing or offsetting effect is not present where the bases on which peremptories are exercised involve (numerical) minority and majority groups.

A simple numerical example may help drive the point home. Suppose a jurisdiction had a demographic makeup of 75% whites and 25% racial minorities. And suppose that the initial draw of twelve would-be jurors exactly mirrors these percentages-that is, nine whites and three non-white minorities are drawn. Suppose further that each side is given three peremptory strikes, and that each side uses its peremptories to aggressively remove people based on their white or minority race, respectively. So one side (perhaps the side of a Title VII minority plaintiff) uses its three strikes to remove three white would-be jurors, and the other side uses its three strikes to remove the three people of color who were initially drawn for the jury.

So now we are left with six whites, six slots to fill, and no peremptory challenges. Those six empty slots are then filled, and again, if we are assuming a draw that reflects the demographics of the larger pool, on average only 1.5 (or 25% of six) minority jurors would be selected, and 4.5 whites (75% of six) would join the group. The overall makeup of the jury after all is said and done would be 10.5 whites and 1.5 minority folks-half the number of minority persons who were initially drawn before each side was allowed to engage in a racial peremptory war. Because this scenario could repeat itself across many or most juries, allowing each side to use race to strike prospective jurors could very likely diminish minority jury participation writ large. This systemic effect is what makes the race-based peremptory-challenge cases easy to defend for those of us who care about inclusion and fair representation of the community on juries.

And what is true for race is also true for sexual orientation, insofar as gays and lesbians are, like persons of color, numerical minorities. Indeed, peremptory challenges, if allowed on the basis of sexual orientation, may be particularly likely to reduce participation of gays and lesbians on juries, writ large, because unlike race and gender, in the sexual orientation setting, it is less natural to think about "opposing" uses of peremptories. In the racial setting, if one side excludes blacks, the other may find it advantageous to remove whites. And the same is true for removing women and men. But even if one side tries to remove one or two would-be jurors because they are gay, the other side is less likely to think to remove other jurors because they are straight.

The problem here is that equal protection doctrine both legally and intuitively doesn't always operate with the kind of symmetry that the Court has developed in race and gender discrimination cases. In race and gender cases, the Court justified its application of heightened scrutiny initially by examining past discrimination against the class of racial minorities and women. Over time, however, the Court shifted its attention in these cases away from a suspect class and toward a suspect classification. The Court's focus was no longer on whether a law disadvantaged racial minorities or women, but rather on whether the challenged law employed a racial or gender classification.

But this shift from suspect class to suspect classification seems more counterintuitive when other equal protection cases are considered. Thus we think more about discrimination against aliens than we do citizenship classifications, more about discrimination against non-marital children than marital children classifications, and more about discrimination against gays and lesbians than sexual orientation classifications. Accordingly, it would hardly be surprising to discover that lawyers might not engage in any affirmative effort to identify and remove straights from a jury, generally speaking, the way they might identify and strike men, women, blacks, whites, and gays. So if sexual-orientation peremptories are permitted, then Judge Reinhardt's concern about the exclusion of an entire group must be taken seriously.

Implementing Abbott's equal protection ban on sexual-orientation-based peremptories might not be easy in practice, however. As Kathryne Young and others point out, unlike a person's race and sex, sexual orientation isn't obvious to an outside observer, so policing sexual orientation-based discrimination may raise distinctive problems. It is often difficult enough to prove that an attorney who is striking African-Americans or women is doing so because of their race or gender when the racial or gender identity of the stricken jurors is apparent. Objections to peremptory strikes based on sexual orientation may also involve placing some would-be jurors in the uncomfortable position of having to affirm or deny their membership in an LGBT group. The Ninth Circuit began to discuss these problems, but the implementation of this new rule will require more care and attention as it is applied in practice, which is often the case after cutting-edge constitutional decisions are rendered.

The Link Connecting Jury Service and Voting

Besides practical concerns, there is a more fundamental, theoretical objection to the constitutional doctrine developed by the Supreme Court and the lower courts in this area of law. That is whether the Equal Protection Clause is the appropriate prism through which to view the problem of juror exclusion in the first place. A different set of constitutional provisions, the provisions dealing with voting and other political rights, may provide a better foundation for helping courts to decide how skeptical to be about peremptory challenges. Jury service has traditionally been tied, and analogized, to voting, and this linkage makes sense: jurors, like individuals casting ballots for members of Congress or the President, exercise their power by voting for particular results; jurors implement policy when they decide cases, just as voters help shape policy by electing representatives or adopting initiatives. Indeed, until the later Twentieth Century, voting and jury service were considered "political rights" governed not so much by the Fourteenth Amendment, but more directly by the voting rights amendments, including the Fifteenth (which prohibits race discrimination in voting); the Nineteenth (which prohibits gender discrimination in voting); the Twenty-Fourth (which in effect prohibits wealth discrimination in voting), and the Twenty-Sixth (which prohibits age discrimination in voting.)

If we take the juror-as-voter analogy seriously, then removing people from juries becomes more problematic, because certainly we would not allow governmental actors (at least not since the Supreme Court decided important voting rights cases dating back to the 1960s) to prevent any would-be voter from participating in any particular election unless there were to be a compelling justification for doing so. This may partly explain why some Justices (most notably Justice Breyer) have, over the last few decades, been unmoved by the prospect of a slippery slope regarding peremptories, because these Justices think that the Court should reconsider whether any peremptory challenges can be constitutionally exercised.

But for those who are not yet ready to dispense with all peremptories, toeholds on the slippery slope are needed. One such toehold is hinted at in the analysis above-at the very least, the groups that receive textual protection in the Constitution from discrimination in voting (groups defined by race, gender, wealth and age in the voting rights amendments) should also be protected from discrimination in jury service. So far, the Supreme Court has embraced protection for the first three kinds of groups. Prospective jurors identified by race or gender are protected under explicit equal protection holdings, and jurors identified to some extent by economic class or status have been protected more ambiguously pursuant to the Court's general supervisory powers over the federal courts, The Court has not yet ruled on whether the fourth group, defined by age, should receive comparable protection.

On this analysis, peremptories that are used to exclude gay or lesbian persons wouldn't seem to implicate the voting rights amendments (unless we shoehorned sexual orientation discrimination into sex discrimination-an analysis with persuasive force in some circumstances, but not others.) But the political-rights paradigm (as distinguished from the equal protection framework) does help to explain why one group that is protected by equal protection doctrine from state-level discrimination-aliens-have no right to avoid exclusion from juries. Indeed, through most of modern American history, non-citizens have been ineligible to serve on juries (just as they have been ineligible to vote.) California has recently considered legislation that would allow non-citizens to serve on juries (and there would be no constitutional problem with such experimentation), but it is unlikely that courts will protect their access.

From this perspective, Judge Reinhardt's reasoning correctly recognizes that while the application of heightened scrutiny under the Equal Protection Clause to laws disadvantaging a particular class is certainly relevant to the review of peremptory challenges directed at class members, it cannot be a sufficient ground for holding that these challenges are unconstitutional. The alienage cases demonstrate that a class protected by heightened scrutiny review may still be excluded from jury service. Ultimately, it is necessary to return to our earlier points about what it is, exactly, that seems so problematic about certain kinds of peremptory challenges. Peremtory challenges directed at LGBT persons are problematic because they run a particularly high risk of eliminating a distinct set of voices from juries writ large. That is the kind of harm that requires a constitutional remedy.

Will the Supreme Court Review Abbott?

It is possible that the Ninth Circuit as a whole, en banc, will decide to review the three-judge panel's decision in Abbott. What about the Supreme Court? Shortly after Abbott came down, the thoughtful New York Times legal analyst Adam Liptak suggested there might be a split between Abbott and a case from the United States Court of Appeals for the Eighth Circuit, which opined that sexual orientation is not an invalid basis for peremptories, and that such a split may be of interest to the Supreme Court. We think the Court is unlikely to exercise its discretion to review Abbott for several reasons. For starters, there really is no split with the Eighth Circuit. The language in the Eighth Circuit case suggesting that sexual orientation is a permissible basis for peremptories was dicta, since the court in that case found that the lawyer did not base the peremptory in question on sexual orientation in the first place. Moreover, the Eighth Circuit case predates Windsor, so there is no split on the precise question Judge Reinhardt's opinion answered-whether Windsor fundamentally changed the constitutional standard of review regarding discrimination against gays and lesbians. . The Eighth Circuit hasn't weighed in on that question yet, so we don't know if the two circuits really disagree.

But even if another Circuit were to disagree with Abbott in the near future, we still would not expect the Supreme Court to grant review. The Court decided Windsor inscrutably (and dodged the merits altogether in Hollingsworth v. Perry, the California Proposition 8 case) because the Court wasn't ready yet to resolve the basic same-sex marriage question, let alone whether all sexual-orientation discrimination is problematic. Taking review in Abbott would require the Court to resolve the very kinds of questions it has been trying to avoid. Last year, the Justices, as a group, seemed to want to buy some time to allow political deliberation to move forward on gay rights issues, and one year is simply not long enough for that to happen. Even though things have changed a great deal of late (with many more states embracing same-sex marriage), the times are still changing. Until the landscape begins to settle down, we would not expect the Court to reenter the picture if it can avoid doing so.

September 27, 2013

Angela Harris Festschrift

Professor Angela Harris's former colleagues at Berkeley Law are celebrating her incredible work with a daylong conference today.

Professor Harris is one of the nation's foremost scholars in the fields of critical race theory, feminist legal theory, and civil rights. She joined the King Hall faculty from UC Berkeley School of Law in 2011.

Here is the program for today's Festschrift:

Welcome / Opening Remarks

  • Melissa Murray (Berkeley Law)
  • Acting Dean Gillian Lester (Berkeley Law)

Panel 1: Feminist Legal Theory

  • Kathryn Abrams (Berkeley Law) Moderator
  • Mary Anne Franks (University of Miami)
  • Priscilla Ocen (Loyola LA)
  • Camille Gear Rich (USC)
  • Madhavi Sunder (UC Davis)

Panel 2: Race and Criminal Justice

  • David Sklansky (Berkeley Law) Moderator
  • Mario Barnes (UC Irvine)
  • Aya Gruber (Colorado)
  • Cynthia Lee (GWU)
  • L. Song Richardson (Iowa)

Lunch and Keynote Address

  • Keynote Speaker: Dean Rachel Moran (UCLA)

Panel 3: Economic and Environmental Justice

  • Robin Lenhardt (Fordham) Moderator
  • Tucker Culbertson (Syracuse)
  • Sheila Foster (Fordham)
  • Trina Jones (Duke)
  • Emma Coleman Jordan (Georgetown)
  • Angela Onwuachi-Willig (Iowa)

Closing Remarks

  • Angela Harris

Reception with Alumni and Festschrift Guests

Dinner (with remarks by Dean Kevin R. Johnson, UC Davis)

September 3, 2013

A Debt of Gratitude for the Civil Rights Movement

Cross-posted from the American Constitution Society Blog.

As Americans reflect on events a half century in the past, I hope they will consider how it might guide our actions now. In particular, I hope people will think about what Americans still owe the African American community.

On August 28, 1963, the date of the March on Washington, the United States was pervasively discriminatory to a degree not fully appreciated today.  African Americans bore a significant burden; in many or most parts of the country, they could not vote, attend public schools with whites, patronize the public accommodations or live in the housing that they wished, or hope to be hired for a broad range of public and private employment. 

But African Americans were hardly the only oppressed group. Rape within marriage was no crime, and, although the Equal Pay Act was on the books and would take effect in 1964, employers could get around it simply by not hiring women for good jobs.  The idea that gay men and lesbians might legally marry someone of the same sex was absurd; instead, investigation, prosecution, and imprisonment for sodomy were an important part of the business of law enforcement.  Un-American immigrants (Africans, Jews and Catholics) were discouraged from immigrating through gerrymandered quotas; Asians were excluded by race.  The list of those whose marginalization was justified and defended as obviously correct was long, and included people with mental or physical disabilities, Indians, religious minorities including Jews and Muslims, children born out of wedlock, and single mothers.

America was remade thanks to the bodies and blood of African Americans -- whites and others also participated in the civil rights movement, of course, but, primarily, it was African Americans. The civil rights struggle, exemplified by the March on Washington, had revolutionary consequences. Part of its effect was near-term changes like passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the unsung but perhaps most effective anti-racist legislation of the period, the Immigration and Nationality Act Amendments of 1965, which, by allowing for immigration on a non-racial basis, put America on the path to being a majority-minority nation.  

But more fundamentally, the movement established a principle of equal dignity and treatment that is still bearing fruit, not just for African Americans but for all people. Perhaps its major legacy is that a working majority of Americans are skeptical of any claim that a group should be excluded or disadvantaged; discrimination must justify itself, and, usually, it cannot.

The bitter irony is that African Americans have not enjoyed a full share of the social changes which they unleashed.  Women as students, workers and political leaders have made great strides in just a few decades.  Asian and Latino immigration has exploded; Latinos are now the country’s largest minority group.  Homophobia as a legal policy is rapidly collapsing.  But, because of current discrimination and the present effects of past discrimination, African Americans remain residentially and educationally segregated, over-incarcerated and under-employed.  They are poorer, less healthy and otherwise disadvantaged not only in comparison to whites, but also in some respects compared to recent immigrant groups.

The truth is that it is not obvious that naked self-interest compels women, Asians, gays and Latinos to be concerned about the African American community. If the food stamp program is cut or affirmative action for African Americans is eliminated, for example, that likely will not reduce female participation in higher education or undermine support for gay marriage. And all of those groups suffered in their own ways and can take credit for fighting their own battles to win a place at the table.  Nevertheless, African Americans do not enjoy basic equality in the sense of a full and fair shot to make it in this country. For all Americans concerned about justice, particularly those who would not be where they are, or here at all, but for the African American contribution to the principle of equality, this anniversary should be a reminder that there is important unfinished business.

August 16, 2013

Another Front in the Same-Sex Equality Campaign: Jury Service, Peremptory Challenges, and the Smithkline Beecham Corp. v. Abbott Laboratories Case Pending in the Ninth Circuit

Cross-posted from Justia's Verdict.

In the same-sex marriage cases that were heard and decided by the U.S. Supreme Court earlier this summer, gay/lesbian rights advocates urged the Justices to declare broadly that laws that discriminate against persons based on sexual orientation should be considered constitutionally suspect, and thus should trigger "heightened judicial scrutiny."  That is another way of saying that any such law should be struck down by a court unless the government can prove, by convincing evidence, that the law really does accomplish important governmental objectives, and is not simply based on prejudice or outmoded stereotypes.  Under a "heightened scrutiny" test, federal and state bans on same-sex marriage would be very unlikely to survive.

The Supreme Court avoided answering this question of which "level of scrutiny" should apply to laws that differentiate among people on the basis of sexual orientation; indeed, if the Court had not avoided this question, it could not have effectively dodged the question it did not want to answer: whether all states have to recognize same-sex marriage.  But the Court's failure to address the "level of scrutiny" issue leaves unresolved questions regarding the legal treatment of sexual-orientation discrimination in other important settings besides marriage.  One such setting is raised by an interesting and important case, Smithkline Beecham Corp. v. Abbott Laboratories, which is being argued next month in the United States Court of Appeals for the Ninth Circuit.  At issue in Smithkline Beecham is whether it is constitutionally permissible for a lawyer to "strike" (remove) would-be jurors from a case because of their sexual orientation.  In this antitrust lawsuit involving HIV medications, an attorney for one of the companies exercised a so-called "peremptory strike" (also known as a "peremptory challenge")-effectively removing a possible juror from inclusion in the jury-because the would-be juror was "or appears to be, could be, homosexual."  Peremptory challenges allow each side of a case to strike (remove) a certain number (with the number being equal for both sides) of would-be jurors for no supportable reason, but instead because of hunches or intuitions held by the lawyers about how sympathetic particular persons would be as jurors.

Background on the Theory and Practice of Peremptory Challenges

Peremptory challenges have been around in American jurisdictions for a long time.  They are distinguishable from so called "strikes for cause," a term used to describe the right each lawyer has to remove from the jury pool all persons who are shown to be actually incapable of rendering an impartial decision.  Some analysts think that if lawyers ask (as they may need to ask) tough questions to would-be jurors to determine whether particular individuals should be removed for cause, peremptory challenges are needed to remove those would-be jurors who might have been put off or offended by the tough questioning.  And some people (though not I) think that peremptory challenges enhance the legitimacy of the judicial system, insofar as the parties may more readily accept a decision that is reached by a decision-making body that they themselves helped shape. But the Supreme Court has repeatedly made clear that no constitutional right to peremptories exists; and some states have severely curtailed their use in state courts.

Moreover, while the essence of peremptories is that they needn't be based on any good reasons, the Supreme Court has held that they cannot be based on some bad reasons-most particularly, race and gender.  So whenever it is shown that a lawyer exercised a peremptory strike because of a would-be juror's race or sex, the Fourteenth Amendment's guarantee of equal protection of the laws is said to be violated.  (One might ask why the Equal Protection Clause governs private lawyers exercising peremptories in lawsuits between private parties.  The answer is that because trials are quintessentially governmental operations, and because it is technically the judge who dismisses a would-be juror from the pool-albeit at the behest of the lawyer exercising the strike-the Constitution's equality norms apply here.)  But the Supreme Court and lower federal courts have been reluctant to add other criteria, beyond race and sex, that are constitutionally impermissible bases for the use of peremptories (although one famous line of Supreme Court cases frowns on eliminating jurors because of wealth.)  In the Smithkine case, the Ninth Circuit will have to decide whether to add sexual orientation to the list of improper criteria.

An Understandable Concern About Slippery Slopes, and One Answer:  Eliminate Peremptories Altogether

The judicial reluctance to expand the list of bases on which peremptories may not be premised stems in part from a concern over slippery slopes.  As one lower court observed when confronted with the question whether age should be a constitutionally impermissible ground for peremptories:  "if the age classification is adopted, surely blue-collar workers, yuppies, Rotarians, Eagle Scouts, and an endless variety of other classifications will be entitled to similar treatment. These are not the groups that the court has traditionally sought to protect from under-representation on jury venires."

So the slippery slope problems here are real.  Over the past few decades, a handful of the Justices who have served on the Court, perhaps most notably Justice Breyer, have been unmoved by the prospect of a slippery slope regarding peremptories, because these Justices think that the Court should reconsider whether any peremptory challenges can be constitutionally exercised.  One reason for Justice Breyer's skepticism about peremptories is the difficulty of proving an improper motive on the part of lawyers.  Because peremptories are supposed to be usable based on irrational hunches, lawyers can give bizarre reasons to explain their use of peremptories and still must be believed, even if race or sex was, in fact, the actual motivation behind the peremptory strikes.  So eliminating race- or gender-based peremptories may, in the real world, require eliminating all peremptories.  (The Smithkline case illustrates this; it is remarkable that the case has made it this far, because the lawyer exercising the peremptory based on sexual orientation could likely have explained the peremptory on other, idiosyncratic grounds and been believed.)

The Link Between Jury Service and Voting

Another reason for being constitutionally skeptical about peremptories is that jury service has traditionally been tied, and analogized, to voting.  This linkage makes sense:  jurors, like individuals casting ballots for members of Congress or the President, exercise their power by voting for particular results; jurors implement policy when they decide cases, just as voters help shape policy by electing representatives or adopting initiatives.  And throughout American constitutional history, voting and jury service have been considered "political rights" governed not so much by the Fourteenth Amendment, but more directly by the Fifteenth (which prohibits race discrimination in voting); the Nineteenth (which prohibits gender discrimination in voting); the Twenty-Fourth (which in effect prohibits wealth discrimination in voting), and the Twenty-Sixth (which prohibits age discrimination in voting.)

If we take the juror-as-voter analogy seriously, then removing people from juries becomes more problematic, because certainly we would not allow governmental actors (at least not since the Supreme Court decided important cases dating back to the 1960s) to prevent any would-be voter from participating in any particular election unless there were a compelling justification for doing so.

But for those who are not yet ready to dispense with all peremptories, toeholds on the slippery slope are needed.  One such toehold is hinted at in the analysis above-at the very least, the groups that receive textual protection in the Constitution from discrimination in voting (groups defined by race, gender, wealth and age) should also be protected from discrimination in jury service.  So far, the Supreme Court has embraced protection for the first three kinds of groups (defined by race, gender and wealth) and has not ruled on the fourth (defined by age.)

The Role of Equal Protection Doctrine

Yet another set of stopping points down a slippery slope comes not from the voting rights amendments (the 15th, 19th, 24th and 26th), but from equal protection doctrine.  The idea here would be that those groups of people who are generally protected from discrimination under the equal protection clause (groups defined by race, gender, marital status of parents, perhaps religion, etc.) should also be protected in the peremptory challenge setting.  That is why the Supreme Court's failure to make clear the standard of review it was applying in United States v. Windsor (the case from June striking down part of the Defense of Marriage Act, or DOMA) becomes important here.

The oral argument in Smithkline should be interesting.  The panel of Judges Schroeder, Reinhardt and Berzon is, even more so than the three-judge panel in the Proposition 8 case, liberal by Ninth Circuit standards.  If one had to bet, one might expect this panel to frown on the use of sexual orientation as a basis for peremptories.  And if the Ninth Circuit does invalidate sexual-orientation-based peremptories, then the Supreme Court may end up being interested in the case, and could render a ruling that would, directly or indirectly, bear on the question of same-sex marriage bans too.  A lot to keep watch on in the coming months.

August 1, 2013

Why California Should Repeal Proposition 8

Part Two in a Two-Part Series on What Should Happen to Same-Sex Marriage in California After Hollingsworth v. Perry. Cross-posted from Justia's Verdict.

In the space below, I continue to analyze what will-and what should-happen to California's voter-adopted ban on same-sex marriage, Proposition 8, in the wake of the U.S. Supreme Court's ruling earlier this summer in Hollingsworth v. Perry.  Two weeks ago, in Part One of this two-part series, I argued that the request made on July 11 by the proponents of Proposition 8 to get the California Supreme Court to order County Clerks to stop granting same-sex marriage licenses-Clerks have been issuing same-sex licenses for about a month-was unlikely to be successful.  Today, after elaborating a bit more on this post-Perry litigation, I move beyond the judicial arena to the ballot box, where I think repeal of Proposition 8 by the California electorate is feasible.

A Recent Development:  The San Diego County Clerk Asks the California Supreme Court to Weigh In

Shortly after my last column was posted, the County Clerk for San Diego County filed a separate request in the California Supreme Court asking for an order declaring that Proposition 8 should continue to be enforced by County Clerks, and preventing the Governor, the Attorney General, and the State Registrar from trying to force the San Diego Clerk to issue same-sex marriage licenses.  The San Diego Clerk's arguments echoed those made to the California Supreme Court by the initiative's proponents themselves the week before.  As it did with the proponents' request, the court refused to grant the San Diego Clerk an immediate block on same-sex marriage license issuance, but set a briefing schedule so that the court could decide whether to fully address the merits of the dispute in the coming month(s).

I don't expect the California Justices to accept the San Diego County Clerk's invitation to wade into this dispute in depth, for many of the same reasons that I discussed in Part One in connection with the proponents' request:  (1) The California Supreme Court's review is discretionary; (2) The case turns largely on the best way to interpret a federal district court order, and state courts will usually refrain from getting into contested interpretations of federal court orders; (3) The federal court order, by its straightforward terms, applies broadly to the County Clerks in Los Angeles and Alameda, so that unless those two individuals challenge the federal court order, same-sex marriage licenses will continue to issue from those Counties (and thus in the State) in any event; and (4)  Even if the state law questions-about the independence of County Clerks from the Governor or State Registrar and the obligation to continue to enforce laws that have not yet been invalidated by appellate courts-are interesting and important, there will be better cases down the road in which to reach those issues.

And here's an additional reason why the San Diego Clerk's request will likely be rejected by the California Supremes:  unlike the Proposition 8 proponents, the San Diego Clerk (who is arguably subject to the federal court order) might have standing in federal court to seek a ruling-from that court itself-that he is not covered by the federal order and will not be held in federal contempt if he refuses to issue same-sex marriage licenses.  A federal court faced with such a such a case might, at that point, try to enlist the help of the California Supreme Court to answer the question whether County Clerks are subject to the "control or supervision" (the term used in the federal court order) of state-level officials.  But the California Supreme Court would seem well-advised to wait for such a request (if one ever materialized) before opining on these matters.

Moving from the Courtroom to the Ballot Box:  Repeal of a Measure No Longer Supported by the People

Based on the analysis offered above, I don't expect the issuance of same-sex marriage licenses in California to stop anytime soon.  And so, for practical purposes at least, California's ban on same-sex marriage will become a dead letter.  Is that where the Proposition 8 political-legal opera should end?  To my mind, the answer is no; I think Proposition 8's true final Act should be repeal at the ballot box.

If Proposition 8 is not, in practice, limiting gay marriage, why would repeal be necessary or helpful?  For starters, we must remember that a judicial invalidation of a law and an injunction against its enforcement aren't the same as getting rid of the law; the measure remains on the books, and conceivably could spring back to life if a different Governor or Attorney General tried to reopen the case and undo the federal court injunction by defending Proposition 8 on the merits (something Governors Schwarzenegger and Brown, and Attorneys General Brown and Harris, never did.)  Cases (like Perry) that were never actually contested on the merits between the appropriate plaintiffs and defendants are-because of the absence of a true adversarial clash in the courtroom resulting in a judgment-strong candidates for reopening, should a particular Governor or Attorney General want to do so.

But, someone might respond, the political climate in California is moving in the opposite direction-in favor of, not against, same-sex marriage.  So the likelihood of a new Governor or Attorney General trying to resurrect Proposition 8-especially after hundreds of thousands of same-sex couples in the state already get married-is very slim.  I think that's probably true.  But remember that Governors and Attorney Generals get elected based on many issues, and they may win office in spite of, rather than because of, their position on any one subject.  Moreover, after they assume office, they sometimes take actions that seem to go against the views of a majority of voters, as Schwarzenegger and Brown themselves did when they refused to defend Proposition 8 when the Perry lawsuit was filed in 2009, a time when the state's electorate may very well still have favored the measure.

But all that brings me to the second, and more important, reason to repeal Proposition 8:  It no longer reflects the views of Californians, and state law on fundamental questions like this ought to accord with the true beliefs of state voters.  Proposition 8 passed in 2008 by a 52-48 margin, and a recent LATimes opinion poll suggests that a similar measure today would be supported by only 38% of voters, with 56% favoring same-sex marriage equality-a huge change in just five years.  But the only poll with true credibility is the one at the ballot box itself, and so Californians should revisit Proposition 8 in an election the next year or so.

And having California's laws line up with California's values will matter to people outside California as well.  As is now clear, after the Supreme Court's actions earlier this summer, the struggle over same-sex marriage rights in the United States continues to be waged in many, if not most, of the 35 or so states that do not allow same-sex marriage.  Having California in the "yes" column on same-sex marriage as a result of an election, rather than as the product of the actions of a small number of persons (a Governor and Attorney General who declined to defend, and an unelected District Court judge who issued an injunction), is important for political purposes in other states and, ultimately, for constitutional purposes when the U.S. Supreme Court returns to same-sex marriage rights-as it will almost certainly have to-in the coming years.  In Perry and United States v. Windsor (the case involving the federal Defense of Marriage Act, also known as DOMA) a month ago, the Court was able to avoid the question whether there is a national constitutional right to same-sex marriage, but it will have to answer that question directly in the next decade or so.  And there is broad agreement that the Court is keenly aware of national consensuses and national trends when it decides the content and scope of national constitutional rights (whether or not such awareness ought to be relevant).  Having California (which alone houses about 12% of all Americans) join the ranks of the same-sex marriage states through an affirmative act of its electorate will maximize its clout in these national processes.

The Logistics of Repeal:  Getting a Repeal Measure on the Ballot

Many measures that (like a repeal of Proposition 8) stand a good chance of success before the voters are nonetheless never acted upon because of the cost (often about a few million dollars) and headache of gathering the signatures required to qualify an initiative for California's statewide ballot.  But signature-gathering isn't the only way to get a measure on the ballot in California; if 2/3 of each house of the state legislature votes to put a constitutional amendment on the ballot, the amendment is offered to the electorate.  For decades this route has seemed an unlikely one, because major ballot measures are often very polarizing along party lines, and neither political party has controlled 2/3 of each house of the legislature.  But today (and barring any very unusual events, for the next year at least) Democrats can be assured of occupying 2/3 of the seats of the California Assembly and Senate.  And there may very well be a number of Republican legislators who think that California voters should be given the chance to weigh in again on same-sex marriage, since the landscape has changed so much over the last half-decade.  So there seems to be a window for the California legislature to act, to let California voters speak once again on this most important of questions.  And even though some significant money may have to be spent in the ad campaign to get such a repeal enacted, I would expect-given the salience of this topic in California over the last few years and the movement reflected in recent opinion polls-the amount of money need not be that great, and in any event would be well-spent, given the alternative: months and perhaps years of technical wrangling in the state and federal courts, leading to an outcome that cannot easily to be said to derive from the California people themselves.