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:

"The One Woman Director Mandate: History and Trajectory" 
CORPORATE GOVERNANCE IN INDIA: CHANGE AND CONTINUITY (ed. Indian Institute of Corporate Affairs) (Oxford University Press, Forthcoming)
UC Davis Legal Studies Research Paper No. 472

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

In 2013, India passed historic legislation mandating that boards of publicly listed and certain other large companies must include one woman director. The mandate, which came into effect on April 1, 2015, has the potential to vastly change the profile of Indian boards and board members. This chapter examines the history and trajectory of India's board diversity requirement. It seeks to understand the genesis and goals of this requirement, and explores some of the challenges that India has already faced and may continue to face with respect to the possible effectiveness of this requirement. The chapter then considers for the Indian context the implications of business and social science literature on gender diversity on corporate boards.

"In Defense of Content Regulation" 
UC Davis Legal Studies Research Paper No. 483

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

Since at least 1972, the central tenet of free speech doctrine has been that if a law regulates speech based on its content, and the speech is not unprotected or "low value," then the law is subject to strict scrutiny and presumptively unconstitutional. Few commentators have seriously questioned this rule, on the assumption that any deviation from it threatens to unleash censorship, and is in any event unnecessary. This article questions that consensus, and identifies specific circumstances in which, it argues, the government should be permitted to discriminate based on content.

The article begins by identifying a variety of situations in which courts have regularly evaded the general presumption against content regulation, even though the speech at issue was in principle fully protected. The core insight of this article is that these evasions make sense. The corollary of the rule against content discrimination is a presumption that all (fully protected) speech should be treated as equally valuable. But this presumption itself conflicts with the Supreme Court's repeated assertions that the First Amendment values certain speech - speech relevant to democratic self-governance - above all other forms of speech. So, all speech is not equal. Moreover, there are specific circumstances in which it is profoundly irrational to treat all speech as equally valuable. The core example is physical scarcity of speech opportunities. Here, some speech must be allowed, at the expense of other speech. Why not, then, favor more over less valuable speech? Yet current doctrine forbids this choice. The article goes on to identify other specific, objectively definable situations where the presumption against content regulation should be reconsidered. It concludes by exploring, and rejecting counterarguments.

"Information Goes Global: Protecting Privacy, Security, and the New Economy in a World of Cross-Border Data Flows" 
E15Initiative. Geneva: International Centre for Trade and Sustainable Development (ICTSD) and World Economic Forum, 2015.
UC Davis Legal Studies Research Paper No. 480

USMAN AHMED, eBay Inc.
Email: uahmed2@gmail.com
ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

This paper addresses the question of whether it is possible to balance the need for a free flow of information across borders with legitimate government concerns related to public order, consumer privacy, and security. The paper begins by highlighting the risks associated with limitations on free information flows and the policy concerns that lead to these limitations. The paper then provides an analysis of the current international regime on cross-border information flows. The authors argue that specific binding trade language promoting cross-border flows - combined with continued international cooperation - will enhance, rather than undermine, public order, national security, and privacy.

"Should Rape Shield Laws Bar Proof that the Alleged Victim Has Made Similar, Untruthful Rape Accusations in the Past?: Fair Symmetry with the Rape Sword Laws" 
Pacific Law Journal, Forthcoming
UC Davis Legal Studies Research Paper No. 478

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

Traditionally, the common law enforced a general ban on character evidence. More specifically, the common law prohibited a proponent from introducing evidence of a person's other conduct as proof of the person's character trait and then using the trait as proof that on a particular relevant occasion, the person acted consistently with the trait. The prohibition applied to both sides in criminal as well as civil cases. Federal Rules 404-05 extend the prohibition to evidence on the historical merits, and to an extent Rules 608-09 apply the ban to evidence offered on a credibility theory. Rule 608(b) deviates from the ban by permitting cross-examination about a witness's other untruthful acts but bars extrinsic evidence of the acts.

In 1995 Congress enacted the "rape sword" statutes, Rules 413-14. The statutes carve out an exception to the traditional prohibition and allow the prosecution to introduce evidence of an accused's other sexual assaults or child molestations on a character theory to prove the accused's commission of the charged offense. The available psychological research does not warrant drawing a character inference when there is only one or a few other instances of similar conduct. However, the proponents of the statutes contend that the statutes are defensible because these prosecutions often devolve into swearing contests and the prosecution has a legitimate need for evidence to break the credibility tie by corroborating the victim's testimony that the offense occurred.

Especially since 1995, in these prosecutions the defense has attempted to introduce evidence, including extrinsic testimony, of similar, untruthful accusations by the complainant. However, the prosecution has objected that such evidence runs afoul of the prohibitions in Rules 404-05, 608, and 412, the rape shield statute. A few jurisdictions have construed these statutes as banning the defense evidence. However, many jurisdictions allow defense cross-examination about similar, untruthful accusations. Even in these jurisdictions, though, the courts ordinarily exclude extrinsic proof.

The first thesis of this article is that the courts should permit cross-examination when the defense has sufficient proof that the prior accusation was untruthful. Like prosecution evidence proffered under Rules 413-14, this evidence is logically relevant on a character reasoning theory.

Moreover, if the proponents of the rape sword statutes are correct, like the government the defense has an acute need for evidence to prevail in the swearing contest. Just as evidence of other offenses by the accused corroborates the complainant's testimony that the accused attacked him or her, evidence of the complainant's prior, untruthful accusations corroborates the accused's testimony that the complainant has fabricated the charge against the accused.

The second thesis of this article is that as a matter of policy, extrinsic evidence of the prior similar accusations should be admissible. Admittedly, Rule 608(b) purports to enunciate an absolute ban on extrinsic evidence of prior untruthful acts. However, Rule 608(b) is the only impeachment technique subject to a rigid, absolute prohibition of extrinsic evidence; and the wisdom of singling out 608(b) impeachment is questionable. Furthermore, the accused has an extraordinary need for extrinsic evidence in 413-14 cases. Women and children who are the alleged victims of these offenses are exceptionally sympathetic figures on the witness stand; and if the defense cannot disprove the alleged victim's denial on cross-examination, the cross-examination is likely to be counterproductive - the jurors may conclude that the cross-examination was a second, cruel victimization of the complainant. At least in this context, if the law is going to permit inquiry about prior, untruthful accusations, the defense ought to have the right to resort to extrinsic evidence.

The rape sword statutes impact the balance of the criminal justice system in Rule 413-14 prosecutions. To maintain the essential balance of the adversary system in these cases, Evidence law should permit the defense to introduce extrinsic evidence of the complainant's prior, similar, untruthful accusations.

"Back to the Future? Returning Discretion to Crime-Based Removal Decisions" 
New York University Law Review Online, Vol. 90, 2016, Forthcoming
UC Davis Legal Studies Research Paper No. 479

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

Jason A. Cade has powerfully advocated for returning greater discretion to the courts and agencies in making and reviewing Executive Branch decisions to remove noncitizens from the United States. His latest article, Return of the JRAD, 90 NYU L. REV. ONLINE 36 (2015), calls for a revival of a now-discarded procedural device of allowing courts sentencing noncitizen criminal defendants to make a "Judicial Recommendation Against Deportation" (JRAD) that would bar the Executive Branch from removing a noncitizen from the United States.

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

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

Part I expresses full agreement with Jason Cade's conclusion in Return of the JRAD that the modern criminal removal system fails to protect against unfair removals of immigrants.

Part II adds a powerful justification to the call for the reform of the modern criminal removal system - namely, the serious concerns with the overwhelming modern racial disparities in removals, which directly flow directly from racial disparities in the operation of the modern criminal justice system in the United States. The contemporary criminal removal regime has disparate impacts on Latina/o immigrants, who today comprise the overwhelming majority of the persons deported from the United States. In fact, the modern removal system might accurately be characterized as a Latina/o removal system. The racial impacts of contemporary criminal removals alone warrant a wholesale reconsideration of criminal removals under current American immigration law.

Part III considers separation of powers concerns in the administration of the immigration laws. Jason Cade indirectly raises a critically important question concerning the branch of the federal government that is best equipped - constitutionally and politically - to curb the excesses of the modern criminal removal system. Fundamental separation of powers principles suggest that Congress should be the focus of reforms.

The challenging political question posed to reformers is how to convince Congress to dismantle the mandatory criminal removal regime that it built. As politicians frequently employ anti-immigrant themes for political gain, noncitizens with criminal convictions continue to be among the most reviled of all immigrants in American politics. Only through a political change of heart can Congress begin to restore discretion to removal decisions and better ensure that respect is afforded to the weighty human interests of immigrants, their families, and communities.

"The Law of Look and Feel" 
UC Davis Legal Studies Research Paper No. 482

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

Design is the currency of corporations, and increasingly, under the Demsetzian logic, the subject of property claims by them. The world's biggest company owes its value largely to design. Where once Apple's claim to own its popular graphical user interface was rebuffed readily by courts, today, design-related claims lead to billion dollar judgments in Apple's favor. Today design - which includes everything from shape, color, and packaging to user interface, consumer experience, and organizational structure - plays a central role in the modern economy and is increasingly the subject of intellectual property law's attention.

But the law of design is confused and confusing. It is splintered among various doctrines in copyright, trademark and trade dress, and patent law. Indeed, while nearly every area of modern IP law has been marshalled in the service of design protection, the law has taken a siloed approach, with separate disciplines developing ad hoc rules and exceptions to design protection. To make matters worse, different disciplines within IP use similar terms and concepts - functionality, consumer confusion - but apply them in wholly different, even contradictory ways.

This Article provides the first comprehensive assessment of the regulation of consumers' aesthetic experiences in copyright, trade dress, and patent law - what we call "the law of look and feel." We canvas the diverse ways that parties have utilized (and stretched) intellectual property law to protect design in a broad range of products and services, from Pac-Man to Louboutin shoes to the iPhone, from the "feel of the '70s" captured in Marvin Gaye's music, the scantily clad employees of Abercrombie & Fitch, and the décor of Mexican restaurants, to Apple's technologies of "pinch to zoom," "bounce-back" and "rubberbanding." In so doing, we identify an emergent "law of look and feel" that finds unity among the diversity of IP laws protecting aesthetic experience. Going further, we argue that the new enclosure movement of design, if not comprehensively reformed and grounded in theory, can in fact erode innovation, competition, and cultural cohesion itself.

"Justice in the Hinterlands: Arkansas as a Case Study of the Rural Lawyer Shortage and Evidence-Based Solutions to Alleviate It" 
University of Arkansas at Little Rock Law Review, Vol. 37, 2015
UC Davis Legal Studies Research Paper No. 481

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
J. CLIFF MCKINNEY, Quattlebaum, Grooms & Tull PLLC
Email: cmckinney@QGTlaw.com
BART CALHOUN, McDaniel, Richardson & Calhoun
Email: Calhoun.bart@gmail.com

In recent years, state high courts, legislatures, bar associations, and other justice system stakeholders have become aware that a shortage of lawyers afflicts many rural communities across the nation and that this dearth of lawyers has implications for access to justice. A lack of systematically collected data about precisely where lawyers are - and are not - in any given state is an obstacle to solving the problem. Another impediment is a lack of information about why lawyers are choosing not to practice in rural locales and about the sorts of incentives that might entice them to do so.

A principal aim of this article and the empirical work that informs it is to begin to develop evidence that will inform solutions to the rural lawyer shortage. In that regard, the article, written for the UALR Bowen "Access to Justice" symposium, makes two significant contributions. The first is to literally map where Arkansas lawyers are and then to look for trends and patterns regarding the least-served communities. The second is to survey law students and attorneys to determine their attitudes toward rural practice and rural living more generally, while also assessing openness to specific opportunities and incentives aimed at attracting lawyers to underserved communities.

We focused our analysis on Arkansas's 25 least populous counties, which we refer to as the "Rural Counties." All except one of these counties has a population of less than 15,000. Collectively, the Rural Counties are home to some 255,000 residents but fewer than 200 total lawyers, less than half of whom accept clients for representation, as signified by having an IOLTA Account. Representing a third of the state's 75 counties, the Rural Counties lie in clusters in each of the state's four quadrants, and most are relatively distant from state and regional population centers. Among these counties, we found no clear correlation between high poverty and low ratios of attorneys to population. As a general rule, the Rural Counties that are farthest from a metropolitan area have the most acute attorney shortages, although several counties in the Mississippi Delta stood out as exceptions. Not surprisingly, the attorney population in Arkansas's Rural Counties is an aging one. We also found that many other nonmetropolitan counties - those with populations somewhat larger than the Rural Counties - have poor attorney-to-population ratios, suggesting that attorney shortages are on the horizon there, too.

Meanwhile, Arkansas's attorneys tend to be highly concentrated in the state's population centers, with particular overrepresentation in Pulaski County (the state's most populous county and home to state capital Little Rock) and two contiguous central Arkansas counties: 48% of the state's attorneys are a mismatch for just 21% of the state's population in those three counties. The state's second and third most populous counties, Benton and Washington, in the state's booming northwest corridor, have attorney populations more commensurate with their populations.

Our survey of students at the state's two law schools revealed few student respondents who grew up in or had spent much time in Arkansas's Rural Counties or in similarly low-population counties in other states. Further, only a handful of students indicate that they plan to practice in the state's nonmetropolitan areas, let alone the Rural Counties specifically. Nevertheless, many students - particularly among those who grew up in the Rural Counties - expressed openness to working in these counties if given specific opportunities and incentives to do so. When asked about what deterred them from pursuing rural practice, the most dominant theme was concern about economic viability; a lack of cultural and other amenities associated with urban living was a close second. Some students also expressed concern about the greater challenge of finding a life partner in rural places. A number of students expressed very negative attitudes toward rural people, places and practice. Recurring themes included an expectation of rural bias toward racial and sexual minorities and women; concerns about lack of anonymity in the community and lack of professionalism in the justice system; and a shortage of clients able to afford an attorney's services. Still, a critical mass - certainly enough to meet the need in Arkansas's rural communities - indicated willingness to practice in a rural locale if provided fiscal and professional supports, e.g., student loan repayment assistance, mentoring, training in law practice management. When the few students who indicated their intent to practice in a rural area were asked about what they found appealing about such a prospect, the most common theme was autonomy - the ability to have one's own practice and to develop and maintain local clientele.

Respondents to the lawyer survey were generally less negative about rural practice than their law student counterparts. On the whole, most attorneys expressed contentment with their practice location, whether rural or urban. One surprise among the lawyer survey results was that employment opportunities for spouses were less important than we anticipated, perhaps because urban lawyers - the vast majority of survey respondents - take these for granted.

We close with suggested reforms for Arkansas's institutional stakeholders. Among other actions, we suggest that Arkansas follow the lead of South Dakota and offer loan repayment assistance to attorneys who are willing to make a multi-year commitment to practice in an underserved rural area. This incentive has proved popular in South Dakota, which has doubled the size of its program in just two years in response to a high degree of attorney interest. Our survey results give us every reason to believe that such a program, as well as other interventions to bolster the rural lawyer population in Arkansas, could be just as successful. In any event, we anticipate that our efforts to document in detail the rural attorney shortage in Arkansas will provide an incentive - and, we hope, a model - for other states wishing to better understand and alleviate their rural access-to-justice deficits.

"How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study" 
UC Davis Law Review, Vol. 49, 2016
UC Davis Legal Studies Research Paper No. 477

DONNA SHESTOWSKY, University of California, Davis - School of Law
Email: dshest@ucdavis.edu

This Article presents findings from the first multi-court field study examining how civil litigants evaluate the characteristics of legal procedures shortly after their cases are filed in state court. Analyses revealed that litigants evaluated the characteristics in terms of control - i.e., whether the characteristics granted relative control to the litigants themselves or to third parties (e.g., mediators, judges). Although the litigants indicated a desire to be present for the resolution process, they preferred third-party control to litigant control. They also wanted third parties to control the process more than the outcome. Gender, age group, and case-type significantly predicted attraction to third-party control, whereas attraction to litigant control was predicted by whether litigants had a pre-existing relationship with each other, how much they valued a future relationship with the opposing party, party type, the type of opposing party, and court location. Implications for legal policy and lawyering are discussed.

This opinion essay originally appeared in The Sacramento Bee on February 16, 2016.

Appointed to the U.S. Supreme Court by President Ronald Reagan in 1986, Justice Antonin Scalia was often described as the intellectual anchor of the court's conservative wing. After his death, many commentators are reviewing his body of work, notably his interpretations of the Constitution, as well as his acerbic attacks on his colleagues' opinions and angry dissents, such as in the gay marriage cases.

He also leaves a legacy on a matter critically important to daily criminal law enforcement across the nation. Deadly encounters of people of color with law enforcement regularly make the news, including deaths in Ferguson, Baltimore and Cleveland that have led to sporadic outbursts of unrest.

Many Americans, including both Republican and Democratic political leaders, have condemned police reliance on racial stereotypes. But few are aware it was the Supreme Court, through Scalia's 1996 opinion in Whren v. United States, that made racial profiling in ordinary criminal law enforcement the law of the land.

Late one night in June 1993, two vice squad officers were patrolling a high-crime Washington, D.C., neighborhood in an unmarked vehicle. They saw two African American men in an SUV and stopped the vehicle for a traffic violation. (One can only wonder why vice officers would trouble themselves with a traffic stop.) The officers found crack cocaine and arrested the men. The defendants later argued that the traffic violation was only a pretext for a stop based on race - thus violating the Fourth Amendment ban on unreasonable searches and seizures.

Writing for a unanimous court, Scalia found that the vehicle stop did not violate the Fourth Amendment because the police had probable cause to believe a traffic infraction had been committed. To Scalia, it did not matter whether the officers admittedly used the violation as a pretext to stop the vehicle because the occupants were black.

He reasoned that any claim of racial discrimination by police fell outside the Fourth Amendment. Instead, he concluded, such a claim was properly brought under the equal protection guarantee of the Fifth and Fourteenth amendments.

But what his logic failed to capture was that equal-protection claims are extremely difficult to prove. A plaintiff must demonstrate that the police acted with a discriminatory intent - not simply that the action, practice or policy had a discriminatory impact on racial minorities. Understandably, plaintiffs can rarely produce the evidence necessary to establish guilty intent. Police officers generally can show there was no discriminatory intent by pointing to a race-neutral reason, such as a minor traffic violation, for the stop.

Put simply, Scalia's constitutional logic failed to ensure that the Constitution would be enforced to protect against racial discrimination. The Whren decision effectively authorizes traffic stops by police based on race. As a result, racial profiling is integral to a criminal justice system that critics contend is, at bottom, racially biased.

In the end, one of Justice Scalia's legacies is the existing problem of racial injustice in law enforcement. As public protests have shown, much remains to be done to remove the taint of racial discrimination from criminal law enforcement.

The editors of the UC Davis Law Review just sent this message to the law faculty. The new issue looks outstanding. Congratulations to the UC Davis Law Review!

Dear King Hall Faculty,

We invite you to read the UC Davis Law Review, Volume 49, Issue 3, at http://lawreview.law.ucdavis.edu/issues/current-issue.html. Please see the linked table of contents below. We are particularly fortunate that Professor Donna Shestowsky contributed our lead article, which is also featured on our home page, lawreview.law.ucdavis.edu.

We hope that you will consider submitting your manuscripts to us when we open later this month, and that you will encourage your colleagues to submit theirs. Thank you for all of the support you give us!

Sincerely,

The UC Davis Law Review

UC Davis Law Review • Vol. 49, No. 3, February 2016

Articles

• How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study
  Donna Shestowsky - UC Davis School of Law - 793
• Absurdity and Excessively Delayed Executions
  Russell L. Christopher - The University of Tulsa College of Law - 843
• Constitutional Stickiness
  Ozan O. Varol - Lewis & Clark Law School - 899
• Patent Asymmetries
  Sean B. Seymore - Vanderbilt University - 963
• Recognizing Rights in Real Time: The Role of Google in the EU Right to Be Forgotten
  Edward Lee - IIT Chicago-Kent College of Law - 1017
• Contract Meta-Interpretation
  Shawn Bayern - Florida State University College of Law - 1097

Note

• Developing a First Amendment Framework for the Regulation of Online Educational Data: Examining California's Student Online Personal Information Protection Act
  Katherine P. McGrath - UC Davis School of Law - 1149

"The Uncondemned," a feature documentary about the first conviction of rape as a war crime, is showing at the Napa Valley Film Festival, which starts tomorrow, Thursday Nov. 12.  

That first conviction came in 1998 in a decision by the International Criminal Tribunal for Rwanda (ICTR) in the case against Jean-Paul Akayesu, the mayor of Taba Commune.  I worked at ICTR as a gender consultant in 1996, analyzing the evidence of sexual assault in the Akayesu matter, and I am therefore one of the "baby lawyers" who worked on the case and who is featured in the film. (Photo below from 1996, as we flew between Kigali where the Office of the Prosecutor was located and Arusha, Tanzania, where the tribunal judges sat.) 

The film already won two awards at the Hamptons International Film Festival, including the Brizzolara Family Foundation Award for the best film about conflict and resolution. The Guardian.com filed this story about the film and that award.

I have seen the film once before, this summer in Rwanda when the Rwandan witnesses (one of whom is pictured in the flyer) saw it for the first time.  Read more in this previous blog entry.  I'm looking forward to seeing it again tomorrow night, this time with two UC Davis colleagues, Keith Watenpaugh (Religious Studies, History, Human Rights) and Michael Lazzara (Spanish, Cinema and Digital Media). Both are involved with UC Davis's Human Rights Initiative, a project of the Davis Humanities Institute.  Hope to see some of you in Napa this weekend, where the film will be shown at a different venue each day.  Here is the schedule.

Cross-posted from Immigration Prof Blog.

This morning, the Supreme Court heard oral arguments in Torres v. Lynch, which was previewed on the ImmigrationProf blog last week.   Here is the transcript to the arguments.

The case involves another effort by the U.S. government to remove a long term lawful permanent resident of the United States based on a single -- and relatively stale -- criminal conviction.  As discussed in my preview to the arguments, the Supreme Court has taken a number of criminal removal cases in recent years, with the immigrant winning a majority of them.  See, e.g., Moncrieffe v. Holder (2013); Carachuri-Rosendo v. Holder (2010).

Jorge Luna Torres, a lawful permanent resident from the Dominican Republic, came to the United States in 1983.  The sole blemish on his record is a 1999 conviction under a New York arson statute, for which he was sentenced to one day in jail and five years of probation.  In 2006, Torres was denied re-entry into the United States as inadmissible because of the conviction of an "aggravated felony."  Torres is now gainfully employed and engaged to be married.

The technical -- and dry -- legal question presented by the case is whether a state offense constitutes an "aggravated felony" under Immigration and Nationality Act § 101(a)(43), 8 U.S.C. § 1101(a)(43), on the ground that the state offense is "described in" a specified federal statute but the federal statute includes an interstate element not found in the New York arson statute.  Conviction of an "aggravated felony" has significant immigration consequences; such a conviction renders a noncitizen, including a lawful permanent resident, subject to mandatory removal and detention and makes him or her ineligible for almost any relief from removal.  

As described by Steven Vladeck on SCOTUSblog, the Third Circuit was the first court of appeals to consider the specific question whether conviction under the New York arson statute constituted an aggravated felony; it departed from four circuits that concluded that state law offenses could constitute aggravated felonies even if the federal statute those offenses were "described in" included am imterstate element that the state offense lacked. The Second Circuit agreed with the majority of courts of appeal and disagreed with the Third Circuit.  The court explained that under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-844 (1984), it was required "to defer to an agency's reasonable interpretation of the statute it administers."  For additional analysis of the legal issues and background in the case, click here.

The basic thrust of the arguments cover familiar doctrinal terrain: 

(1) what is the proper interpretation of the U.S. immigration laws?; 

(2) the application of the rule of lenity in cases involving the criminal removal grounds; and

(3) the deference properly afford the Board of Immigration Appeals (BIA). 

See, e.g., Kawashima v. Holder (2012).  

Torres argues that the plain language of the statute governs and that, if there are any ambiguities, the rule of lenity favoring the narrower interpretation of the removal provision in question.  In contrast, the U.S. government argues that the language of the statute and its context justifies removal and that deference to the BIA is required under Chevron.  For analysis of a number of cases raising similar issues in the Supreme Court in the 2009-13 Terms of the Court, click here. 

Matthew L. Guadagno, a sole immigration practitioner in New York City, argued on behalf of Petitioner Jorge Torres.

Elaine Goldenberg, Assistant to the Solicitor General, argued for the United States.

I did not attend the oral argument and gleaned whatever insights that I could from the transcript.  Here they are for what they are worth.

All in all, each attorney received heated questions from the Justices, with a specific focus on the technical intricacies of the statutory provisions in the Immigration and Nationality Act in question.  Guadagno had some rocky moments but so did Goldenberg. 

Justice Sotomayor seemed troubled that the Petitioner did not adopt the statutory argument of what she said was the National Association of Criminal Defense Lawyers but seems to have been the argument of the National Immigrant Justice Center and the American Immigration Lawyers Association (page 14) i.e., that the statute should be limited to convictions for "explosive material" offenses.

There was general concern about the implications of the interpretations of the statute offered by both the Petitioner and the U.S. government. 

Torres' interpretation might allow serious arsonists to not be found to have committed an "aggravated felony," a concern expressed by Justice Breyer.  One concern raised by the government was that some child pornography offenses without interstate elements might fall outside the purview of "aggravated felony" if Torres' interpretation was accepted. 

On the other hand, Justice Ginsburg worried that the U.S. government's position might result in mandatory  removal (i.e., no room for administrative discretion) of Torres for a relatively minor arson conviction, with his sentence being one day in jail and five years of probation.  Goldenberg somewhat surprisingly pounced on this expression of sympathy, taking no prisoners:  "That's right that he can't obtain cancellation of removal, and that's consistent with Congress's intent in putting the aggravated felony provision into place, which was to constrain the attorney general's discretion . . . ."  It was mentioned several times during oral argument that the record was not clear about the precise facts surrounding Torres' arson conviction.  

Chevron deference only came up as a mere afterthought in the arguments.  Justice Ginsburg asked what respect was owed the BIA's interpretation.  Guadagno said that it was not owed "any" deference.

I have a hard time predicting how the Court will decide Torres v. Lynch.  It seems like a very close call to me but, if I had to guess, the U.S. government's tough position may win out.  My sense is that Chief Justice Roberts and Justice Alito were convinced by the government's  arguments. 

Depending on the Supreme Court's decision, the case could have an impact on many criminal removal cases, which have been the centerpiece of the Obama administration's immigration enforcement efforts. 

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

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

Here is a look at some of the most recent scholarship from UC Davis School of Law faculty from the Social Science Research Network's Legal Scholarship Network. Click through the links to download the works.

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

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

WILLIAM S. DODGE, University of California, Davis, School of Law
Email: dodgew@uchastings.edu

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

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

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

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

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

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

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

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

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

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

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

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

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

ELIZABETH E. JOH, University of California, Davis - School of Law
Email: eejoh@ucdavis.edu

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

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

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

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

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

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

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

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

THOMAS WUIL JOO, University of California - Davis Law School
Email: twjoo@ucdavis.edu

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

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

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

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

EVELYN A. LEWIS, University of California, Davis - School of Law
Email: ealewis@ucdavis.edu

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

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

EUNICE HYUNHYE CHO, Southern Poverty Law Center
Email: eunice.cho@splcenter.org
GISELLE A HASS, Georgetown University - Center for Applied Legal Studies
Email: Giselle.Hass@gmail.com
LETICIA M. SAUCEDO, University of California, Davis - School of Law
Email: lmsaucedo@ucdavis.edu

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

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

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

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

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

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

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

BRIAN SOUCEK, University of California, Davis - School of Law
Email: bsoucek@ucdavis.edu

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

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

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

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

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

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

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

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

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

View the full piece here on casetext.

Cross-posted from SCOTUSblog.

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

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

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

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

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

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

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

Cross-posted from SCOTUSblog.

Today, the Supreme Court decided Mellouli v. Lynch, a case involving the removal from the United States of Moones Mellouli, a lawful permanent resident from Tunisia, based on a Kansas misdemeanor drug paraphernalia conviction for possession of a sock used to hide four tablets of the prescription drug Adderall.

Removal based on a sock conviction may sound like a story line from a television sitcom. However, the U.S. government instituted removal proceedings based on the conviction and dramatically changed Mellouli's life. Forced to leave the country where he had resided since 2004 after an immigration court ruled against him, Mellouli now lives apart from his U.S. citizen fiancé.

For purposes of removal, the immigration statute requires that a drug conviction under state law must "relat[e] to a controlled substance (as defined) by" federal law. This requirement is important because some states ban substances in addition to those regulated by federal law. (Kansas, for example, regulates at least nine substances not regulated by federal law.) The charging document and plea agreement in Mellouli's criminal case failed to identify the specific controlled substance related to the paraphernalia that served as the basis for his conviction and thus did not make it clear that the substance was controlled by federal law. Nonetheless, the immigration court and Board of Immigration Appeals (BIA), with the approval of the court of appeals, ordered Mellouli deported from the United States.

The arguments in the case, as often is true in modern cases in which the courts review the actions of administrative agencies, revolved around the application of the Court's 1984 decision in Chevron v. Natural Resources Defense Council, Inc., holding that the courts must defer to an agency's reasonable interpretation of an ambiguous statute. Cases involving Chevron deference necessarily require careful analysis of the statute in question to determine whether the text is ambiguous, which triggers deference to reasonable agency interpretations of the statute.

Justice Ruth Bader Ginsburg wrote for a majority of the Court, which included all but Justices Clarence Thomas and Samuel Alito.  The opinion carefully marches through the statutory language and agency interpretations and concludes "that Mellouli's Kansas conviction did not trigger removal under" the immigration statute.   The Court, as it had in Moncrieffe v. Holder, reiterated its adherence to the "categorical approach" to removal under criminal statutes, which requires that all of the convictions under a statute must trigger removal without a need for inquiry into the facts of the individual case. The Court further observed that "Congress and the BIA have long required a direct link between an alien's crime of conviction and a particular federally controlled drug." Recognizing that Kansas law regulated nine substances not included in the federal controlled substances lists, the Court found that the government's emphasis on the "relating to" language in the immigration statute to justify removal for a conviction in connection with a substance that was not clearly regulated by federal law was a "sweeping interpretation [that] departs so sharply from the statute's text and history that it cannot be considered a permissible reading" In rejecting the government's position, the majority stated that "[t]he incongruous upshot [of the government's argument] is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance. Because it makes scant sense, the BIA's interpretation, we hold, is owed no deference under the doctrine described in Chevron."

Justice Thomas, in a dissent joined by Justice Alito, would have accepted the U.S. government's argument. The broad "relating to" language in the removal statute resolved the case for him, as he would have accepted that "faithfully applying [the] text means that an alien may be deported for committing an offense that does not involve a federally controlled substance."

Today's decision is a typical statutory interpretation and agency deference case, which would not seem to have many far-reaching doctrinal implications. It is consistent with the Roberts Court's reluctance to subject small-time drug offenders to mandatory removal from the United States. In Moncrieffe, for example, the Court rejected a removal order of a long-term lawful permanent resident based on a single conviction for possession of the equivalent of a few marijuana cigarettes. Similarly, in Carachuri-Rosendo v. Holder (2010), the Court ruled that mandatory removal of a lawful permanent resident could not be premised on a misdemeanor conviction for possession of a single tablet of a prescription drug (Xanax) and a previous misdemeanor marijuana possession conviction.

Today's decision will serve as an incentive to prosecutors to clearly state in charging documents and plea agreements what specific drug a drug paraphernalia charge relates to. In this case, such precision would have helped facilitate removal. It seems unlikely that the decision will have much of a general impact on the U.S. government's efforts to remove convicted drug offenders from the country.

In sum, the decision once again demonstrates that the Roberts Court will not rubber-stamp the removal decisions of the executive branch, even those involving immigrants convicted of drug-related crimes that the immigration laws target for harsh treatment.