October 13, 2023

The Song Remains The Same: Election Year Immigration Politics

Presidential campaign 2024 will be heating up and immigration will no doubt be discussed  Former President Donald Trump is rattling the sabers of tough immigration policies.   Several debates of Republican candidates for President have been held.  The candidates predictably talked tough on border enforcement. Harsh words, however, will not move the nation forward in revamping the U.S. immigration laws.  They haven’t in the past and will not in the future. 

At least since after the presidency of George W. Bush, Republican politicians have consistently called for more stringent border enforcement with sparse relief for immigrants, and most definitely not a pathway to lawful status for undocumented immigrants.  The amazing political popularity of President Trump’s no-holds-barred approach to immigration looms large in the minds of Republican presidential hopefuls.  That is the case even though President Trump did not have lasting impacts on immigration policy goals, such as reducing the size of the undocumented immigration.  The measures however, did frighten, punish, and injure immigrants. 

Democrats have not been all that different.  They have been committed to tougher border enforcement and to providing some relief for immigrants.  Although tending to take a softer, more balanced approach to immigration, some Democratic presidents have embraced tough positions.  President Bill Clinton signed into law the tough Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  President Obama set records for removals of noncitizens from the United States, earning him the moniker in some circles as the “Deporter in Chief.”  Today, Democratic leaders in the state of New York, including the Mayor of New York and Governor, demand federal action to quell the flow of immigrants into the state.  Although taking a more nuanced approach to immigration enforcement, President Biden recently announced the building of barriers along the U.S./Mexico border, which generated opposition from immigrant advocates. 

Put differently, political expediency has drawn Democrat and Republican to support heightened border enforcement measures.  Unfortunately, what is wholly absent in the political wreckage of immigration politics is any commitment to doing the challenging political work necessary to build a coalition in support of a meaningful and lasting immigration reform proposal.

Historically, anti-immigrant campaigns have enjoyed great political success.  Fueled by racial hatred running rampant at the time, the Chinese exclusion laws of the late 1800s are a shining example of how dark passions have left deep stains on the nation.  Anti-Chinese political movements in the West sparked Congress to pass a series of federal laws effectively excluding Chinese immigrants from U.S. shores.  Modern examples of the political power of anti-immigrant sentiments are plentiful.  President Trump’s infamous Muslim ban founded on anti-Muslim animus and the separation of migrant families at the border are powerful reminders.  As constitutionally dubious as they are, calls to end birthright citizenship often are made, including by Donald Trump.  Race (Mexican) and gender (women) are the targets of the efforts to end birth-right citizenship.  In the 2016 campaign, loud cheers for a border wall between the United States and Mexico could be heard at Trump speeches in which he advocated a “big, beautiful wall.”

 Sad to say political grandstanding, not serious calls for reform, carry the day.  The way to change the fundamental nature of political debate is not entirely clear.  Republicans and Democrats agree on the dire need for far-reaching immigration reform.  The path to getting there, as well as the nature of the reform, unfortunately is far from evident.  Until a path to meaningful change is found and followed, we can expect political campaigns and immigration politics that we have seen for the last twenty years.  Tough talk on immigration and little attempt to in fact address the real challenging issues.


September 15, 2023

The Immorality of DACA’s “Illegality”

[Cross-post from Aoki Center Blog]

By Raquel E. Aldana

Two thousand and one marked the introduction of the first DREAMER legislation in the U.S. Congress. Over the next two decades, at least a dozen versions of bills would be introduced to attempt to regularize the status of DREAMERS, a term that describes around two million persons in irregular immigration status brought to the United States as children. Despite consistent and broad support for DREAMER legislation, the closest Congress came to passing the legislation was in 2010 when it passed the House but fell just five votes short of the 60 needed to proceed in the Senate.

Few other stories of failed legislation in recent U.S. history exemplify the perils of congressional dysfunction like the fate of Dreamers in the U.S. Congress. One significant peril has been the human toll on millions of deserving young people who are American except by birth. Another is the strain on U.S. democracy when its elected leaders refuse to take moral action to rectify wrongs even in the face of strong public support for them to do so. [1]

In 2012, the Obama Administration’s imperfect response to this congressional moral failure came in the form of a Department of Homeland Security [DHS] Memorandum that created DACA (Deferred Action for Early Childhood Arrivals). DACA provided respite from deportation to certain DREAMERS who qualified under the program’s guidelines, an estimated 1.7 million. Ultimately, fewer applied but the numbers reached as high as 814,000 by 2018, and 578,680were still active by March 2023.

DHS relied on its prosecutorial discretion powers to issue DACA. It also employed rational pragmatism and humanity to grant worth authorization to DACA recipients. Without work authorization, DACA recipients would be expected to live in the shadows of U.S. society, not only in despair but also exploitable. It is worth noting that at its discretion, and for humanitarian reasons, DHS grants work authorization to foreign nationals awaiting adjudication of their immigration status or who are under temporary forms of protections in recognition that protection from deportation, even when temporary, without an ability to work, is no protection at all.

Now, Judge Andrew Hanen seizes on DACA’s longevity and its accompanying work authorization, to declare it illegal. To be exact, Judge Hanen, with the Fifth Circuit’s blessing, first found the 2012 DHS Memorandum creating DACA illegal at its tenth anniversary. The same year, in 2021, the Biden administration attempted to “preserve and fortify” DACA’s legality by enacting a formal rule. But to Judge Hanen, the rule may have fixed the irregularities of how DACA came to be (adopted without notice and comment) but did not address what he, and the Fifth Circuit, consider DACA’s substantive flaws. Then on September 13, 2013, Judge Hanen declared  the new Biden rule similarly illegal, leaving the ultimate fate of DACA in the hands of the Fifth Circuit and likely the U.S. Supreme Court. What, exactly, is said to be illegal about DACA? According to Judge Hanen and the Fifth Circuit, DACA violates the Administrative Procedures Act [APA] and the Take Care clause of the U.S. Constitution because its issuance exceeds DHS’s statutory authority under the Immigration and Nationality Act. The Fifth Circuit must now decide whether it agrees with Judge Hanen that the new DACA rule, just like the 2012 Memorandum, exceeds DHS’s statutory authority. Ultimately, the issue is likely to end up before the U.S. Supreme Court, which will be an arbiter of yet another issue with potentially dire consequences for the lives of millions in this country.

One saving grace of this unfortunate litigation saga is that Judge Hanen and the Fifth Circuit, while enjoining new DACA applications after finding the program unlawful, have spared current DACA recipients from losing their vested status, at least until the issue is adjudicated definitively on the merits. This is significant to the well-being and livelihood of over half a million current DACA holders who have relied on this status to build careers, gain professions, secure better pay, have families, acquire properties, and open businesses. Ideally, this recognition, at least for this group, could also have legal significance. It mattered to the U.S. Supreme Court in 2020, at least, when it halted the Trump administration’s attempt to rescind DACA without a fair process. It should also matter when the Fifth Circuit or ultimately the Court interprets the Immigration and Nationality Act’s permissiveness to allow DHS’s issuance of DACA. Here, a Chevron deference that is informed by the principle of lenity should govern statutory interpretation. It is also not arbitrary and capricious, the APA’s substantive standard for agency action, for DHS to confer employment authorization for humanitarian and pragmatic reasons to those over whom it has exercised the discretion not to deport.

Of course, Congress can end the litigation by rendering it moot if and when it passes DREAMER legislation, or broader comprehensive immigration reform. Both the House and the Senate have current bipartisan bills protective of DACA recipients Congress consider for adoption quickly. As well, broader pieces of comprehensive immigration reform proposals have been on the table and ripe for consideration.  Meanwhile, it is hopeful that at some point as many as 22 states joined to support DACA in the litigation before the Fifth Circuit, in contrast to the 9 states that are seeking to end it. States as well have an important role to play in supporting DACA and all undocumented residents, but especially the hundreds of thousands of unDACAmented youth impacted by this litigation. This Higher ED Immigration Portal highlights examples of several state innovation to support DACA students. Institutions of higher learning can be creative in how to support access and affordability to universities and colleges. Civil society has a crucial role to play to push for reform and engage with the issue. The time is now. Sí se puede!


July 7, 2023

Immigration in the Supreme Court, 2022 Term

[Cross-Post from ImmigrationProf Blog]

By Kevin R. Johnson

No Supreme Court Term could be expected to attract the national attention given to the 2021 Term, which saw the unprecedented leak of the opinion in the Dobbs case overruling Roe v. Wade and changing the constitutional trajectory of reproductive freedom in the United States.  Still, some decisions in the 2022 Term brought great change to the law.  Flirting with the outcome for years, the Court finally put in the minds of many an end to race-conscious affirmative action in university admissions.  At the same time, there were some pleasant surprises for liberals, including notable voting rightselection law, and Indian law decisions.  There also was time for a light moment or two.  Lovers of dogs and whiskey had to take glee in Jack Daniel's beat back in a trademark case of the manufacturer of a "Bad Spaniels" dog toy.

Each year, I compile the Supreme Court's immigration decisions from the most recent Term.  My recap of immigration decisions from the 2021 Term is here.   

The 2022 Term saw the Court issue four immigration decisions, the same number as last Term.  None were immigration law blockbusters, although the Court's disposal of the challenges of states to the Biden immigration enforcement priorities case (United States v. Texas) and Title 42 border closure case (Arizona v. Mayorkas) were important to the Biden administration's overall immigration program. 

The four merits decisions -- three of which came down in the last week of June -- dealt with executive power over immigration enforcement priorities, exhaustion of remedies for judicial review, criminal removals, and a (rare) First Amendment decision involving an immigration attorney  The U.S. government won in three cases.  Noncitizens won in two.  Immigration attorneys lost in one.  States lost in one case.

Merits Decisions

1.  Executive Power over Immigration Enforcement Priorities:   United States v. Texas.

U.S. government wins.  Noncitizens win.  States Lose.

In an opinion by Justice Brett Kavanaugh, the Court in United States v. Texas held that Texas and Louisiana lacked Article III standing to challenge the Biden administration’s immigration enforcement priorities, namely its more targeted approach focused on criminal noncitizens and other dangers to public safety than the Trump administration's "zero tolerance" approach to all undocumented immigrants.  Justice Samuel Alito was the lone dissenter.

The Court specifically held that the states could not challenge the Biden administration's Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law.

Writing for the majority, Justice Kavanaugh emphasized that “[t]he States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Amy Howe for SCOTUSBlog summarized the decision as follows:

"In a major victory for the Biden administration, the Supreme Court . . . ruled that Texas and Louisiana do not have a legal right, known as standing, to challenge a Biden administration policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation. The justices therefore did not weigh in on the legality of the policy itself, instead reversing a ruling by a federal district court in Texas that struck down the policy. The vote was 8-1. Justice Brett Kavanaugh wrote for a majority. . . . Justice Neil Gorsuch wrote an opinion in which he agreed that the states lacked standing, but for a different reason; his opinion was joined by Justices Clarence Thomas and Amy Coney Barrett (who wrote her own concurring opinion, joined by Gorsuch).

Justice Samuel Alito was the lone dissenter. He complained that the court’s decision left states `already laboring under the effects of massive illegal immigration even more helpless.'

The policy at the center of . . . United States v. Texas, was outlined in a . . . memorandum by Secretary of Homeland Security Alejandro Mayorkas. The memorandum explains that because the Department of Homeland Security does not have the resources to apprehend and deport all of the more than 11 million noncitizens who could be subject to deportation, immigration officials should prioritize the apprehension and deportation of three specific groups of people: suspected terrorists; noncitizens who have committed crimes; and those caught recently at the border." (bold added).

The Court went to some length to make it clear that its holding does not affect the ongoing challenges by several states to the lawfulness of the Deferred Action for Childhood Arrivals policy.   As the National Immigration Project stated in a "practice advisory" to United States v. Texas

"[t]he decision may have broader implications on states’ standing to challenge federal immigration policies, but the Court repeatedly noted that its decision is limited to the context of enforcement discretion over arrests and prosecutions. The Court explained that it does not reach questions regarding standing to challenge provision of legal benefits (such as DACA) or detention of noncitizens who have already been arrested." (bold added).

Secretary of Homeland Security Alejandro N. Mayorkas released the following statement on the Court’s ruling in United States v. Texas:  “We applaud the Supreme Court’s ruling. DHS looks forward to reinstituting these Guidelines, which had been effectively applied . . . to focus limited resources and enforcement actions on those who pose a threat to our national security, public safety, and border security. The Guidelines enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress."

On the same day that it decided United States v. Texas, the Court decided United States v. Hansen.  The two decisions were the final immigration decisions of the Term.

2.  Exhaustion of Remedies and Judicial Review:  Santos-Zacaria v. Garland

Noncitizen wins.

Justice Jackson delivered the unanimous opinion of the Courtwhich Chief Justice Roberts and Justices Sotomayor, Gorsuch, Kavanaugh, and Barrett joined.  Justice Alito concurred in the judgment, which Justice Thomas joined. 

In a straight-forward statutory interpretation case, the Court held that 8 U.S.C. 1252(d)(1), which requires noncitizens to “exhaus[t] all administrative remedies . . . as of right” before challenging a Board of Immigration Appeals final order of removal in federal court, does not require noncitizens to file motions for reconsideration before seeking review in the court of appeals.  The ruling vacated in part and remanded the Fifth Circuit decision rejecting an appeal by a Guatemalan transgender woman.  

3.  First Amendment Challenge to a Criminal Immigration Statute:  United States. v. Hansen

U.S. government wins.   Immigration attorneys lose.

The case presented the question whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain violates the First Amendment.  The Supreme Court in United States v. Hansen rejected the First Amendment challenge to the law. 

The U.S. government prosecuted Helaman Hansen for promising noncitizens a path to citizenship through "adult adoption," a form of relief that does not exist under the law.  8 U.S.C. §1324(a)(1)(A)(iv) makes it unlawful to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”  Hansen challenged the law as overbroad in violation of the First Amendment. The Ninth Circuit agreed.  The Supreme Court in 2020 had been presented the same First Amendment issue (United States v. Sineneng-Smith) but had disposed of the case on procedural grounds.  

In a 7-2 decision authored by Justice Amy Coney Barrett, the Court reversed, finding that the law does not prohibit a substantial amount of protected speech and does not violate the First Amendment.  Justice Ketanji Brown Jackson dissented, in an opinion joined by Justice Sonia Sotomayor. The dissent states:

"At bottom, this case is about how to interpret a statute that prohibits `encourag[ing] or induc[ing]' a noncitizen `to come to, enter, or reside in the United States' unlawfully. . . . The Court reads that broad language as a narrow prohibition on the intentional solicitation or facilitation of a specific act of unlawful immigration—and it thereby avoids having to invalidate this statute under our well-established First Amendment overbreadth doctrine. But the majority departs from ordinary principles of statutory interpretation to reach that result. Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century."

4.  Criminal Removal for Obstruction of Justice:  Pugin v. Garland (consolidated with Garland v. Cordero-Garcia)

U.S. government wins.

The issue is these cases was whether, to qualify as “an offense relating to obstruction of justice,” 8 U.S.C. § 1101(a)(43)(S), an offense must have a nexus to a pending or ongoing investigation or judicial proceeding?  The issue is of practical immigration significance because an “offense relating to the obstruction of justice” is among the criminal convictions that are classified by the immigration statute as an "aggravated felony" subjecting noncitizens to mandatory removal from the United States. 

Justice Kavanaugh delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, Barrett, and Jackson joined.  Justice Jackson filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, which Justice Gorsuch joined, along with Justice Kagan (except for Part III).  The majority held that a criminal offense may "relat[e] to obstruction of justice” under the statute even if the offense does not require that an investigation or proceeding be pending.  The Court observed that obstruction of justice is often “most effective” when it prevents “an investigation or proceeding from commencing in the first place.” 

The bottom line of the SCOTUSBlog analysis of the decision by Karen Pita Loor and Cassidy Heverling is that "the majority’s decision in Pugin opens the door for the government to argue that an ever-expanding array of crimes warrant deportation."

Case Dismissed from Merits Docket

The immigration case of the 2022 Term that perhaps received the most attention involved the Title 42 order, which President Trump originally issued to close the border to migrants ostensibly to reduce the spread of COVID.  Arizona v. Mayorkas involved challenges to the Title 42 order.  After the Biden administration abandoned the appeal, the Court agreed to review whether states may intervene to challenge the district court’s entry of summary judgment order in the case  In December 2022, the Court allowed the Title 42 order to remain in place pending the appeal.   In May 2023, the Biden administration lifted the Title 42 order.   Despite considerable (and exaggerated) concern with the mass movement of migrants, the end of Title 42 was uneventful.  Not long after, the Supreme Court dismissed the appeal and sent the case back to the lower court with instructions to dismiss the states’ request as moot.


June 9, 2023

Migrant Flights Reveal How Politicians Would Rather Toy with People Than Talk Solutions

[Cross-post from CalMatters]

By Kevin R. Johnson

With 2024 campaigns heating up, immigration politics are as well, and we can expect the election cycle to bring much fire and brimstone. Sadly, as has long been the case in U.S. history, immigrants will likely suffer as a result of the political maneuverings.   

Seeking to establish his tough immigration enforcement credentials as the Republican primaries near, Florida Gov. Ron DeSantis has made headlines by taking the extraordinary step of flying migrants to Democratic states that are more open to immigrants. Last year, he arranged for a group to be flown to tourist destination Martha’s Vineyard in Massachusetts, a Democratic bastion. And over the last week, DeSantis sent several flights to Sacramento making it the latest blue-state dumping ground. 

Sadly, DeSantis’ publicity stunts adversely affect real people and real lives. To his credit, Sacramento Mayor Darrell Steinberg and others embraced the migrants with open arms,  providing them with food, shelter and lawyers to help them address their immigration status.  

Although the migrant relocation program may be new, it is just the latest chapter in the cynical practice of playing politics with immigrant lives.  

Immigrant bashing has a long history in the United States. In a period of Chinese immigration in the 1800s, California strongly advocated for national Chinese exclusion laws, which effectively led to a ban on Chinese immigration to the United States.

More recently, former President Donald Trump famously kicked off his successful 2016 presidential campaign by attacking Mexican immigrants as “criminals” and “rapists.” As president, he continued similar rants toward Haitians, Salvadorans and others, crudely saying that the United States should not be accepting migrants from “shithole countries.” Trump appealed to his anti-immigrant base, and fomented even greater hate.  

For four years, the Trump administration pursued tough immigration policies, narrowed asylum relief, talked of a “beautiful” wall along the southern border and ending birthright citizenship. He also closed the border under Title 42, ostensibly to prevent the spread of COVID, and the “remain in Mexico” policy forcing asylum seekers to remain in Mexico while their claims were being decided in the United States. 

President Trump’s tough talk translated into unforgiving policies, felt by immigrants, their families and communities. Two of the most memorable policies were the heartless separation of children from their parents, and the ban on the admission of migrants from Muslim nations.  

Immigrant communities in the U.S. responded as expected. Terrified to leave their homes, some parents feared taking their children to church, doctors and school. Activists fought back but the damage was done. 

Unfortunately, DeSantis follows the same anti-immigrant playbook as Trump. In fact, he seems to be trying to outdo Trump on immigration enforcement. 

The governor demonizes immigrants at every turn and supports policy measures that punish them. At his behest, the Florida legislature passed a tough state immigration law, much of which appears to intrude on the federal power to regulate immigration and thus likely violates the U.S. Constitution. It requires employers to use a federal database to verify the employment eligibility of employees and invalidates out-of-state drivers licenses for immigrants.  

Put simply, DeSantis seeks to make headlines by playing with immigrant lives. He is appealing to the nation’s baser instincts and, in the end, does little to address the nation’s challenging immigration policy issues – which include reforming the system of legal immigration, addressing the legal status of undocumented immigrants already in the U.S. and determining how best to enforce immigration laws stateside and at the border. 

In the end, the migrants dumped in Sacramento are part of a larger ploy to score political points and win elections, not address the immigration issues facing the nation.

May 31, 2023

The Ninth Circuit, Racism, and Immigration Law

[Cross-post from ImmigrationProf Blog]

By Kevin R. Johnson

Last week, in a widely-reported decision, the U.S. Court of Appeals for the Ninth Circuit, once known for its liberalism, reversed a lower court finding that Congress passed a federal immigration law with an intent to discriminate against persons from Mexico.  The law in question bars the unlawful re-entry into the United States of previously removed noncitizens.  The court rejected the lower court ruling even though district court fact findings are rarely disturbed, the evidence included a racial epithet (“wetbacks”) in a Department of Justice letter that was part of the legislative history, and the overwhelming majority of the persons convicted under the statute year in and year out have been Latina/o.  The ruling in United States v. Carrillo-Lopez shows both how dramatically the Ninth Circuit has changed over time and, at the same time, how difficult it is to dislodge systemic racism from the U.S. immigration laws.

Because of its geographic proximity to the U.S./Mexico border, the Ninth Circuit hears more immigration appeals than any other circuit.  Conservatives for years criticized the decisions of the court as too liberal.  Although the Supreme Court reversed some Ninth Circuit’s immigration decisions, it in INS v. Cardoza-Fonseca :: 480 U.S. 421 (1987) affirmed the opinion of Judge Stephen Reinhardt, known as the court’s “liberal lion,” which outlined the evidentiary burden on noncitizens fleeing feared persecution and seeking asylum in the United States.

With conservatives today a majority of the Ninth Circuit’s judges, the days of the court being reasonably labeled as ultra-liberal are long gone.  The opinion rejecting the Equal Protection challenge to the illegal re-entry statute in United States v. Carillo-Lopez was written by Judge Sandra Ikuta, a George W. Bush appointee.  The case turned on the requirement that, to prevail on an Equal Protection challenge to a law, the plaintiff must prove that the government intended to discriminate.  It, of course, is difficult to prove what is in one’s mind and thus is not surprising that Judge Ikuta found that race had not been adequately established as a motivating factor for the illegal re-entry law. 

In so holding, the court rejected the claim that the reference by a Department of Justice official to “wetbacks,” a racial epithet directed at Mexicans, in discussing the law failed to support a finding of a discriminatory intent.  Nor were the stark impacts of Latina/os suffering the overwhelming majority of the criminal convictions under the law sufficient to prove such an intent.  One is left to wonder what, in the court’s eyes, would be sufficient to prove a discriminatory intent.  The court’s restrictive notion of what proves a discriminatory intent likely will limit successful discrimination challenges to, among other things, government policing practices, housing laws, and employment decisions.

As the nation grapples with systemic racism in criminal law enforcement, it has begun to confront such racism in the immigration laws.  In the first comprehensive federal immigration law in the 1800s, Congress passed the Chinese Exclusion Act in an attempt to end Chinese immigration.  The discriminatory tradition lives on in the modern immigration laws and their enforcement.  Bringing race to the forefront of the immigration debate, President Trump crudely denigrated Mexican, Salvadoran, Haitian, and other immigrants and proclaimed the need for more immigrants from Norway.  Exemplifying President Trump’s approach to immigration, the Muslim ban barred the admission of migrants from a group of predominately Muslim nations.

In rejecting the claim that the law targeting Mexicans was motivated by racism, Judge Ikuta in United States v. Carrillo-Lopez emphasized the narrow scope of judicial review of immigration laws and policies, citing, among many cases, the Supreme Court decision to uphold the Muslim ban in Trump v. Hawaii (2018).  The Ninth Circuit’s ruling will make it difficult to challenge the provisions of the immigration laws that are facially neutral (i.e., do not mention race) but have disparate and dramatic impacts on immigrants of color from the developing world.

In the end, the Ninth Circuit’s ruling in United States v. Carrillo-Lopez shows how much things have changed and how much they remain the same.  The Ninth Circuit has become more conservative.  And systemic racism remains at the core of U.S. immigration law and its enforcement.  Moreover, the Ninth Circuit in United States v. Carrillo-Lopez made it more difficult for plaintiffs to successfully challenge many discriminatory laws and policies.

May 17, 2023

The End of the Title 42 Order – a Return To Border Migration Normalcy and Due Process of Law

[Cross-post from Daily Journal]

By Kevin R. Johnson


Last week, the Biden administration lifted the Title 42 order put in place by President Trump, which for several years had in effect closed the U.S./Mexico border to migrants. Rather than a feared stampede at the border, the end of Title 42 simply returned the border to the system that has stumbled along for decades. The task before the nation now is how to reform that system so that it responds effectively and efficiently to manage the 21st century of global migration.

In 2020, President Trump issued an order under Title 42, a public health law, which permitted the immediate removal from the country of asylum seekers fleeing violence and persecution. Critics claimed that the President relied on the public health law to rationalize mass expulsions; more generally, that said, he wanted to limit the number of immigrants in the United States, which was consistent with his many efforts to restrict immigration.

As few could miss, the Biden administration’s plan to end the Title 42 border closure made the news. Story after story raised the specter of an uncontrollable influx of migrants storming the U.S./Mexico border.

Given that the Trump Title 42 order had been in place for several years, one might in fact expect that the lifting of the order might be followed, at least temporarily, by an increase in migration. Pent-up demand for migration might contribute to more migration in the short run. President Biden himself cautioned that it might take time for migration flows to stabilize.

Responding to such fears, the Biden administration took steps to deter migrants from unlawfully entering the United States. Indeed, troops were sent to the border. Restrictions on asylum applications also were put into place. Clear legal pathways for Haitians, Venezuelans, Cubans, and Nicaraguans, fleeing nations plagued by violence and turmoil, were created to discourage all unlawful entry.

As it turns out, the end of Title 42 did not result in a flood of migrants. In fact, little has changed along the U.S./Mexico border. Migrants—families among them—still come seeking a better life or sanctuary from violence. However, traffic so far has been manageable.

The truth of the matter is that, as was the case for many years before the Title 42 order, there is a system in place to process the asylum and other claims of migrants. Although far from perfect, the system has operated and enforces the border consistent with the rule of law.

The border closure through the Title 42 order was an easy—and arguably unlawful—answer to proponents of halting migration. But there no longer is a public health emergency that justifies the extreme measure of closing the border and denying any and all rights to migrants. Title 42 simply no longer is a viable policy option.

Moreover, there is no need for radical border closure. Ebbs and flows of migration have occurred regularly in U.S. history. Political turmoil and violence in Central America and Haiti in the 1980s and 1990s led to many U.S. government responses, such as the interdiction of boats of Haitians by Coast Guard cutters and the immediate return of migrants to Haiti.

Policies were also put into place to detain large numbers of Haitians and Central Americans seeking asylum. Congress added to the U.S. government’s tool box in 1996, such as the creation of expedited removal of migrants apprehended at the border without a credible asylum claim, and the increased authorization of detention of migrants. Although some of these measures may be criticized (such as deaths in detention, including some reported last week), they are preferable—and legal—alternatives to an unsustainable and unlawful system of closed borders.

The exaggerated fears of the end of Title 42 are now behind us. The hard work ahead is improving our under-resourced migration system. The U.S. government has returned to a system that permits migrants to apply for asylum and have their claims decided by asylum officers and immigration courts. The difficult task is how to refine that system so it operates efficiently and has the confidence of the American people.


April 11, 2023

Gender and the Social Structure of Exclusion in U.S. Corporate Law

[Cross-post from Harvard Law School Forum on Corporate Governance]

By Afra Afsharipour and Matthew Jennejohn

Law develops through collective effort. A single judge may write a judicial opinion, but only after an (often large) group of lawyers choose litigation strategies, craft arguments, and present their positions. Despite their important role in the legal process, these networks of lawyers are almost uniformly overlooked in legal scholarship—a black box in a discipline otherwise obsessed with institutional detail.

Prior qualitative research suggests that networks are an important source of information, mentoring, and opportunity, and that those professional resources are often withheld from lawyers who do not mirror the characteristics of the typically male, wealthy, straight, and white incumbents in the field. We have a common nickname for the networks that result, which are ostensibly open but often closed in practice: “Old boys’ networks.”

Our article, Gender and the Social Structure of Exclusion in U.S. Corporate Law, is the first academic study that quantitatively analyzes gender representation within a comprehensive network of judges and litigators over a significant period of time. Our study is based on hand-collected data from cases before the Delaware Court of Chancery, the trial court that adjudicates the most—and the most important—corporate law disputes in the United States. We collected seventeen years of docket entries across more than 15,000 matters and 2,700 attorneys as the basis for a massive network. We analyze gender representation among the lawyers involved in Chancery litigation—the “Chancery Litigation Network”—in two ways: (1) straightforward headcounts; and (2) by thinking of the attorneys as actors within a network, which allows us to measure their professional relationships in the field. This network-based approach illuminates men and women’s access to the professional resources that qualitative studies have found to be so important to advancement in the profession.

Analyzing the Chancery Litigation Network produces several important findings, which we summarize below.

A Dramatic and Persistent Gender Gap

First, we find a dramatic and persistent gap between women and men in the network. Men outnumber women in our sample, despite women being almost half of all law students during each of the 17 years of our study. As we show in the figures in this Bloomberg Perspective, women comprised only 23.6% of all attorneys in 2004, the first year for which we collected data. By 2020, that percentage had only increased to 32.9%.

Transforming the docket data into a professional network, we find that men disproportionately occupy the most central positions within the network of Chancery lawyers. Many more men than women are among the most connected—or “central”—attorneys in the Chancery Litigation Network. Furthermore, when we identify the top 50 most-connected lawyers in the network in 2004 and 2020, we find that in 2004, only five of the 50 most central attorneys were women and that by 2020 that number had increased only to 14. Notably, a significant part of that growth comes from the increasing number of women judges on the Delaware Chancery Court over the time period studied.

The Gender Gap Differs by Law Firm

Second, we find that law firm membership and geographical location interacts with gender—women’s positions within the network differs by membership in certain firms or residence in particular geographies. This evidence raises the possibility that some firms or regions may have policies or cultures more conducive to gender equality than others.

To illustrate, we focus here on a sub-sample of major Delaware and non-Delaware firms, measured by the number of matters in which they are involved in the most recent year of the dataset. For both Delaware and non-Delaware firms, it is very rare to find a law firm where women outnumber men in their involvement in Chancery litigations. Rather, we continually observe men outnumbering women from firm to firm. However, some law firms have a gender gap that is smaller than others.

All of the three major Delaware defense-side firms—Morris Nichols Arsht & Tunnel LLP, Richards Layton & Finger LLP, and Potter Anderson Corroon LLP—have a gender gap. The gender gap closed modestly over the time period studied, but the percentage of women participating in Chancery litigation remained below the overall average for all firms in our dataset. In 2004, the average percentage of women participating from the three major Delaware firms was 12.6%, while the percentage of women across the entire dataset for that year was 23.6%. In 2020, the average percentage of women at those three firms increased to 22.1%, which is still well below the overall average of 32.9%.

We observe similar patterns at the major non-Delaware defense-side law firms that are involved in Chancery litigation. All ten firms have a gender gap, where men outnumber women. However, compared to the three major Delaware firms analyzed above, these non-Delaware firms tend to have greater percentages of women on their litigation teams. Overall, the average percentage of women across these ten firms was 32.8%, which was greater than the average for the three Delaware firms reported above and nearly the same as the average among all firms in the dataset.

We then analyze how attorneys’ network centrality—the number of connections attorneys in the network of Chancery litigators have—differs across the major firms. Like the participation statistics above, we find that the distribution of network links among men and women differ between firms. Interestingly, however, the patterns here do not necessarily track the law firm patterns observed above. In that respect, the network analysis reveals things that are otherwise obscured by straightforward headcount statistics.

We focus here on the distribution of network links in 2020 among men and women for the major Delaware firms, Morris Nichols, Potter Anderson, and Richards Layton. Those firms’ distributions of network links among their attorneys are not equal. Richards Layton, for instance, exhibits a particularly stark difference between women and men, with the most connected men at that firm having more than 2x the number of connections in the network than women. (Note, however, that in 2020 Richards Layton had the highest percentage of women participating in Chancery litigation (28.85%) compared to the other major Delaware firms.) We see a similarly interesting relationship at Potter Anderson, though the interplay is in the opposite direction. In 2020, Potter Anderson had the lowest percentage of women participating in Chancery litigation—less than 10% of its total attorneys in this market. However, the centrality of Potter Anderson’s women and men is most evenly balanced.

The Gender Gap Differs by Geography

Third, examining geographic trends reveals similar patterns. There is a gender gap in all the major geographic locations we study—men outnumber women in California, Delaware, New York, and all other jurisdictions in our dataset. That gender gap also recedes modestly over time. In jurisdictions such as California and New York, the share of attorneys who are women increased from 2004 to 2020. Interestingly, our data captures the relative decline of Delaware lawyers in the share of attorneys involved in Chancery matters—the percentage of both women and men based in Delaware actually falls from 2004 to 2020, though the decline is slower among women than men.

Analyzing Individual Litigators Reveals Personal Networks Dominated by Men

Finally, as we drill down into the networks of individual women, we find that men regularly dominate the networks of female Chancery litigators—even the most highly connected women in the network. It is not unusual, particularly during their early careers, for women to work only with men. Relatedly, the men in the personal network of a woman typically enjoy thicker connections to one another, forming a dense gendered sub-network to which women are only loosely connected. Furthermore, we find that the networks of individual attorneys change significantly from year to year. When a woman attorney works with women in one year, those women rarely repeat in her personal network the following year. Relatedly, while men also experience significant turnover in their personal networks from year to year, one thing is always constant for them: Men consistently encounter a large number of other men from matter to matter. That familiarity gives men a potentially valuable social anchor in a volatile professional environment, a benefit unavailable to women litigating in Chancery.

Looking Ahead

Our findings set the stage for subsequent research to test the connection between gender representation in litigation networks and discrete outcomes, such as the incidence of bias in judicial opinions. It also demonstrates how subsequent research can incorporate network structure into quantitative and qualitative studies of not only gender bias but also other forms of inequality in law. With respect to policy, it provides the necessary first step to crafting normative interventions that improve equitable access to professional resources by making networks more empirically concrete. The persistence of the gender gap highlights the inadequacies of some existing policies to reduce gender inequality, while it also suggests what might be more effective going forward. With that added clarity, the network approach allows us to calibrate remedial options available to bar associations, law firms, and individual attorneys, leaving no level of the institutional setting untouched.

March 30, 2023

The Future of Diversity in Legal Education

[Cross-post from The Bencher, American Inns of Court]

By Kevin R. Johnson

As anyone understands, the global pandemic has greatly complicated legal education and the practice of law.  As a law school dean, I can attest to the fact that just keeping law schools operating over the last two years has been no easy feat.  As the pandemic shows nascent signs of subsiding, law schools still face roughly the same challenges that existed before the shutdown of U.S. society in 2020.  One of the most formidable challenges no doubt will continue to be legal education’s pursuit of diversity, equity, and inclusion.

The benefits of student and faculty diversity are well-known.  For years, law schools have sought to diversify their student bodies.  The ultimate hope has been to diversify the legal profession.  Despite those efforts, attorneys of color remain sorely underrepresented among attorneys nationwide.  In addition, law schools have been called upon to add to the racial and gender diversity of their faculties.  Hiring and retention of faculty of color has changed a bit, but not that much in the last thirty years. 

Put simply, progress on improving student and faculty diversity has been slow, uneven, and at times downright frustrating.  Unfortunately, the future challenges facing law schools in pursuit of the goal of diversity, equity, and inclusion appear to be just as daunting as they have ever been.  Fissures to the fabric of the community caused by stresses and strains of the pandemic have made achieving diversity goals even more challenging than they once were.  The pandemic has had especially adverse impactseconomically, health-wise and in other ways–on people of color.  Moreover, many observers predict that the Supreme Court will put an end to any consideration of race in law school admissions in Students for Admissions Inc. v. President & Fellows of Harvard College.  The end of affirmative action would restrict efforts to pursue law student diversity in the post-pandemic world.

Student Diversity and Calls for the Teaching of Racial Justice

For years, law schools have made efforts to increase the diversity of law student bodies.  The goal has been to produce a corps of lawyers that looks more like the overall population than it has for decades.  Diversity among students facilitates student learning outcomes by allowing students to hear from a variety of different perspectives in the classroom.  Pressures for increased diversity have escalated over time and will likely remain for the foreseeable future.

The Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003) upheld the University of Michigan law school’s carefully calibrated admissions system that considered race as one factor among many in the admissions process.  For the last twenty years, many law schools have relied on Grutter in fashioning admissions systems and pursuing affirmative action to diversify law student bodies.  That may cease with the Supreme Court’s re-assessment of the constitutionality of such programs in a case argued at the end of October 2022.  The demise of affirmative action would require considerable soul searching, restructuring, and rethinking law school admissions by law schools.  

The American Bar Association (ABA) today considers student diversity in the accreditation of law schools.  In addition, the ABA House of Delegates earlier this year voted to require law schools “provide education to law students on bias, cross-cultural competency, and racism” at “the start of the program of legal education” and “at least once again before graduation.”  (Amended ABA Standard 303).  The ABA standards make clear that racism and racial discrimination must be a part of the law school curriculum for all students as well.

Employers of all types also demand that law schools enroll more diverse law student bodies.  That in no small part mirrors demands from clients that employers staff their matters with a diverse staff of attorneys.  Law schools have responded to employers’ demands.  Although progress has been made, much work remains.

Recent highly publicized deaths of African Americans at the hands of police have generated controversy.  To the surprise of many, much discussion has focused on the elimination of systemic racism from U.S. social life.  Students are pressuring law schools to respond by teaching students more about racial justice.  They also consistently have sought more diverse faculties and student bodies.  Such student advocacy will likely continue in the future.  Some schools also have asked that issues of racial justice be better integrated into the law school curriculum. 

Resources are available to law schools seeking to increase the teaching of racial justice and promote a more inclusive law school environment.  For example, a group of African American women law school deans started the Law Deans Antiracist Clearinghouse Project, which includes resources for law schools interested in embracing an anti-racism program.  Anti-racist pedagogy, diversity and implicit bias training, and other programs (as well as consultants to advise law schools) are readily available.

As law schools seek to diversify student bodies, efforts at retention are important.  Academic support and other programs help to integrate and include first-generation law students and students of color.  Such programs represent a marked improvement over the prevailing “sink or swim” approach that dominated how law schools traditionally responded to student learning and the stresses of legal education.  Such an approach is starkly out of step with modern DEI sensibilities and does a serious disservice to students of color and first-generation law students.

Importantly, Inn of Court chapters may help promote the diversification of the legal profession.  Student members gain measurably from networking with, and mentoring from, judges and lawyers.  Inn chapters should continue to consciously strive to ensure that their student members, who gain from networking and mentoring, come from a diverse cross-section of the law student community.  Building a pipeline into the legal profession can be effective, rewarding, and fulfilling.

Faculty Diversity

A diverse law faculty also makes it easier for law schools to recruit and retain diverse student bodies.  A diverse law student body understandably does not want to learn from predominantly white faculties.  With role models at the front of the classroom, students gain from seeing teachers who look like them.  The days of the patrician (and entirely Socratic) Professor Kingsfield of The Paper Chase are long gone.  Law schools have stepped up to the challenge and committed themselves to changing their hiring.

As I have written (How and Why We Built a Majority/Minority Faculty, Chronicle of Higher Education, July 24, 2016), law schools must act intentionally if they hope to hire more women and people of color faculty members.  Law schools often long for stratospheric credentials in law professor candidates, such as a prized clerkship with a Supreme Court justice and grades at the very top of the class.  Besides the fact that these credentials might not be a good measure of law professor potential, relatively few people of color satisfy these elite credential demands, which makes diversifying law faculties a task easier said than done.  The number of faculty of color has stabilized and remains smaller than one would hope.  Nonetheless, there here have been improvements.  Perhaps most notably, the last few years have seen a marked increase in the number of women of color assuming deanships at law schools. 

Diverse faculties may bring diverse perspectives to the classroom, including the teaching of Critical Race Theory (CRT).  As mentioned previously, that is precisely what students are demanding.  Although controversial at its birth, CRT now is taught in law schools across the country and views law as part of the system of racism that persists in the modern United States. 

Future DEI Challenges

The pandemic has hindered diversity, equity, and inclusion efforts by law schools.  With remote instruction teaching over much of the pandemic, there was less informal, in-person interaction between students and professors.  For similar reasons, law schools held fewer in-person open houses for prospective law students.  Outreach programs conducted virtually in all likelihood are not as effective as in-person programs. 

Moreover, maintaining a sense of community, which is especially important in retaining and ensuring the success of students of color and first-generation students, proved difficult in a fractured remote or hybrid environment.  During the pandemic, student organizations understandably put almost all in-person activities on hold, with the lack of a sense of community provided by such events missed especially by students of color.   

If the Supreme Court ends race-conscious affirmative action, law schools will need to engage in much introspection and adaptation.  Examples of race-neutral means to increase the diversity of student bodies do exist.  In California, Proposition 209, passed by the voters in 1996, ended affirmative action at public colleges and universities in the Golden State.  Outreach programs, stepped up recruiting of applicants, and similar measures have enjoyed a degree of success in ensuring diverse student bodies.  Law schools across the nation can learn from the efforts in the state’s public law schools to continue to enroll diverse student bodies.

Efforts to build a community devoted to diversity, equity, and inclusion are by necessity a work in progress.  There are no quick fixes or easy answers.  Dedication, vigilance, and simple hard work are essential.  To improve, law schools must regularly consider and evaluate how they might best promote a positive climate for all students. 

DEI Efforts at UC Davis Law

The UC Davis School of Law is proud of its diversity, equity, and inclusion (DEI) achievements.  They include a “majority-minority” faculty and student body, a program supporting first-generation students, and extensive wellness programing (including a trained on-site psychological counselor).  The school requires implicit bias training for first-year students and annually offers a social justice-minded community “book read” and a “Critical Perspectives” lecture series organized around the first-year curriculum presented by the Aoki Center for Critical Race and Nation Studies.  This year, the community focused on the book Defund Fear:  Safety Without Policing, Prisons, and Punishment (Zach Norris, 2020), which advocates reform of the criminal justice system.  

In 2021, the School of Law added a DEI fellow, a position that was transformed into a director of law school DEI programs.  The new position provides students a clear path for registering concerns about any and all law school climate issues and develops innovative DEI and community-building programming.  At the same time, the law school continues to strive to integrate DEI sensibilities into every office in the law school, from admissions to faculty appointments to career service, and financial aid. 

As protests over police brutality and systemic racism have swept the nation, UC Davis School of Law reaffirmed its commitment to racial justice.  For three years running, the law school has offered a Racial Justice Speaker Series examining some of the most urgent racial justice issues facing our nation and world today.  The series has gathered leading voices on civil rights, criminal justice, and civic and governmental responsibility to inform, enlighten, and–most important–engage in meaningful conversation with our community and the public.

In 2021/22, as part of the continuing efforts in the pursuit of ensuring diversity, equity and inclusion, two law school committees completed reports addressing matters ranging from curriculum reform to student recruitment to DEI training for all.

The school created a diversity, equity, and inclusion committee of staff, students, and alumni to prepare a strategic plan and recommendations for DEI measures.  At the end of the 2021/22 academic year, the DEI Committee released its inaugural strategic plan.  The plan urges that, among other things, the law school continue to:


1.       Cultivate an inclusive atmosphere and sense of belonging;


2.       Support community mental health;


3.       Continue to recruit diverse staff members and students; and


4.       Develop and provide more resources to students from lower-income backgrounds.

In addition, the law school’s Educational Policy Committee, composed of faculty and students, suggested a series of initiatives highlighted by a new graduation requirement that every law student complete a course touching on racial justice.  The committee’s recommendations, which the faculty unanimously approved, also include the following:


1.       The first year Intro Week anti-bias and sensitivity training be retained and potentially expanded and improved;


2.       Further steps be taken to add critical and antiracist perspectives to the 1L curriculum;


3.       The seminars for externships and clinicals offer a session on bias, cross-cultural competency, and racism; and


4.       Opportunities for faculty training on DEI-related matters be explored and expanded and that each faculty member commit to a training in 2022-23.



In certain respects, the stars are in alignment with the collective view of the importance of DEI matters in legal education.  Law schools are responding to employer, student, and ABA concerns with DEI.  The pandemic has made achieving DEI goals all the more challenging.  More work is needed and more undoubtedly is coming.


March 6, 2023

Investment Bankers and Inclusive Corporate Leadership

[Cross-post from The FinReg Blog]

By Afra Afsharipour

Few major deals happen without the engagement and advice of investment bankers. Whether a company is undertaking an initial public offering (IPO) or engaging in a large merger or acquisition deal, investment bankers play a critical role in advising corporate executives. Bankers routinely cultivate and build close advisory relationships with executives in the hopes that such relationships lead to lucrative advisory and service roles connected with corporate dealmaking. 

Building relationships is critical for success as an investment banker. But investment bankers’ constant endeavors to nurture relationships with executives, while also maximizing their ability to enhance fees, commonly leads to allegations of banker “double-dealing,” “self-dealing, blatant conflict of interests and other chicanery.” 

Beyond such conflicts, however, investment banking faces two additional issues as society grapples with rising expectations around diversity, equity, and inclusion (DEI). First, as examined in my forthcoming article, investment banking has a deeply rooted gender gap. While corporations face significant pressure to increase diversity in both boardrooms and C-suites, investment banking has faced much less pressure to do so. Even though women only accounted for 17% of senior leaders in investment banking in 2018, these low numbers may overstate women’s leadership at the top tiers of investment banking. The hand-collected data presented in the article reveals a grim reality, including at the most prominent boutique investment banks advising corporate executives. Second, as my article also explores, the culture and accepted practices of investment banking reinforce masculine norms and biases against women in banking. 

The article argues that not only do these issues hinder gender equity in investment banking as a profession, but they also influence the relationship between bankers and corporate executives. Bankers often serve as one of the most crucial advisors to executives, and the norms and divides of investment banking calibrate corporate cultures and values in the C-suite—enabling the continued gender gap in corporate America. The article’s case study of the WeWork saga is an emblematic example of the relationship between investment bankers and corporate executives; namely, that bankers’ self-interested behavior advances toxic masculinity in the C-Suite and relates to the gender gap both among bankers and at the top rung of the C-Suite. 

Investment Banking’s Gender Gap 

Over the past decade, corporations have been under increasing pressure from various stakeholders to diversify their boards of directors and managers. However, gender disparities remain widespread in the leadership of the most prominent investment banks that advise corporate boards and executives on key transactions. 

Compared to other advisors, there are few systematic industry, firm, or deal-specific disclosures about diversity in leadership in investment banking. The limited information available regarding firm diversity reflects a long-standing gender gap in the banking and finance industry. While there are signs of change in leadership at the largest financial services firms, this growth “is partly due to the rise of nontraditional C-titled roles, such as chief diversity and inclusion officer.” These non-traditional positions rarely represent the most powerful and highly compensated positions at firms. 

The prospects for women’s continued progress in the financial service industry remain unclear. Despite some progress at the largest firms, the industry “still struggles to retain and promote its talented female professionals.” Moreover, women leaders report greater burnout as they undertake additional, typically devalued and unrewarded, responsibilities. 

The Gender Gap at Elite Boutique Banks 

In addition to the involvement of the largest investment banks, elite boutique investment banks— regularly lauded for their ability to provide less conflicted and more independent advice—have recently gained a higher share of advisory fees in transactional advisory work. News stories documenting the rise of elite boutique investment banks focus on the star bankers—almost exclusively men—at the center of the boutiques without examining how these boutique firms perpetuate investment banking’s significant gender gap. 

To examine the leadership gap at elite boutique investment banks, the article presents hand-collected data on the makeup of senior investment bankers at ten leading boutique investment banks based in the United States. The findings show that the percentage of women in senior financial advisor positions remains very low. Cumulatively, seventy-one women represented 10.6% of this survey’s total 666 senior financial advisor positions. This finding likely overstates the representation of women as senior investment bankers since three of the surveyed firms (Guggenheim Partners, Houlihan Lokey, and Lazard Financial Advisory) had limited information regarding their partners or other senior investment bankers, and instead only identified their officers and directors, or executive leadership team.

The Intersection of Investment Banking Culture and the Gender Gap 

The gap in women’s leadership in the financial services industry reflects the deeply entrenched culture of investment banking. Portrayals of the industry paint it as a “testosterone-fueled,” competitive environment where the performance of masculinities is the norm, and “homosociality” is prevalent. Successful women bankers are treated more poorly than men, regardless of whether they go along with banking culture. For example, Sallie Krawcheck, once referred to as “the most powerful woman on wall street,” described her experience working at a leading investment bank as a “boys club” where her male coworkers “contributed to a culture of toxic masculinity by communicating that she wasn’t wanted there.” Bias against women and the “cut-throat” competitive atmosphere of banking are significant contributing factors to the gender gap in banking, exacerbated by the bonus-driven compensation regime of the industry as well as sexual discrimination and harassment in the workplace. 

The norms and practices of investment banking often inhibit women’s promotion and advancement. Women in finance report that “mediocre” men are more easily promoted than women with comparable or superior capabilities due to various factors. Furthermore, women who use parental leave or work-family policies risk severe negative career consequences. Many studies confirm research findings suggesting that tournament-like cultures prevalent in investment banking acutely disadvantage women. 

Implications of Investment Banking’s Gender Gap and Culture for Inclusive Corporate Leadership 

While serious and pervasive, the impacts of the hyper-masculine investment banking culture on women investment bankers are far from the only issue facing the industry. 

The Advisory Role of Investment Bankers & Conflicts of Interest 

The culture of investment banking also affects the services and practices of bankers with respect to clients. In many transactions involving public companies, investment bankers assist the company through a myriad of roles, locating potential mergers,  or sales counterparties, providing fairness opinion letters setting forth their judgments of “fair” deals, or assisting in negotiations to help close the deal. 

Despite their prevalence in the corporate transactional landscape, investment banker conflicts are widespread. Compensation-contingent, tainted banker advice and banker competitiveness—including investment banking rankings on league tables—may negatively affect the quality of banker services to clients. Bankers can push corporate leaders to undertake decisions for their own financial incentives. In addition, especially in deals where management stands to receive personal gain, the close relationships between company management and financial advisors can influence advisors’ recommendations to curry favor with management. 

The pervasiveness of conflicts of interest in investment banking, undeterred by even the harsh criticisms of the courts, is connected with the masculine ethos of the industry. Masculinity norms influence hyper-competitive workplaces such as investment banks, impacting the power structure and hierarchies at these firms and undermining the success of women. These norms feed into a culture of conflicts at investment banks, leaving women to face a “triple bind.” That is, women “lose if they do not play by the same terms as the men,” but also face disproportionate punishment if they engage in the same conflicted behavior as men, and “over time become less likely to apply for such positions and thus more likely, individually and as a group, to be perceived as lacking what it takes to succeed in such environments. 

Investment Banking’s Effects on the C-Suite 

A less-explored aspect of the relationship between bankers and corporate executives is that the self-interested behavior of bankers may also advance toxic masculinity in the C-Suite and undermine inclusive corporate leadership. The WeWork saga is emblematic. Not only did WeWork’s CEO, Adam Neumann, engage in unethical business conduct, but there were numerous reports—and eventually lawsuits—alleging sexism and discrimination by WeWork’s senior management. The company’s “making-the-world-a-better-place rhetoric” masked a culture where women and people of color were marginalized, harassed, and demeaned. 

Investment bankers—chasing large fees and continued business with the overvalued unicorn—enabled and funded Neumann’s reckless conduct and mismanagement of the company. Banking giant JPMorgan Chase was one of Neumann’s most ardent enablers, “supercharg[ing] WeWork’s visions of grandeur,” along with other banks, including Goldman Sachs and Morgan Stanley who served up even more astronomical valuations. Instead of curbing Neumann’s excesses and hubris, competition among bankers to win the lead role for WeWork’s high-profile IPO resulted in senior bankers emboldening Neumann. 

WeWork’s executive team was dominated by a mentality that exacerbated masculinity contests. Neumann encouraged bravado, and male executives competed to impress him. With a nearly all-male executive team, male-bonding activities such as surfing and sitting in a sauna with him left little room for women to ascertain valuable less-formal time with Neumann outside the office. Women employees, including the few women executives at WeWork, were marginalized, and those who complained were pushed out. In fact, throughout 2018—months before the company began to embark on its failed IPO process—several lawsuits by WeWork women executives shed light on the company’s “frat-boy” culture. Neumann also faced claims of gender discrimination, including one from Medina Bardhi, his previous chief of staff. Bardhi filed a complaint with the Equal Employment Opportunity Commission, alleging that she experienced pregnancy and gender discrimination at WeWork. 

There is little indication that bankers—likely aware of the suits alleging gender discrimination at the highest levels of the company—expressed any concern about WeWork and Neumann’s treatment of women. And when Neumann’s bankers did begin to express concerns with Neumann’s excessive partying at work, they expressed no concern about the company’s gender discrimination or how Neumann perpetuated a toxic environment for women at WeWork. So long as the prospects of large fees seemed imminent, Neumann’s investment bankers tolerated his well-documented “party boy” persona. 

WeWork’s investment bankers were not functioning in a manner atypical to others in the industry. Bankers had similarly indulged other founder CEOs known for creating workplaces rife with discrimination and sexual harassment.  


Investment banking faces two key issues that are only recently becoming more widely recognized as society is shifting to become more conscious of the importance of DEI. The first issue is a widely acknowledged and deeply rooted gender divide. An examination of leadership at investment banks, including at the most prominent boutique investment banks, indicates that women’s success in banking remains elusive. As the hand-collected data presented in this article shows, investment banking’s gender gap is larger than what is suggested by the industry’s public pronouncements about the value of DEI. The second issue is a culture and set of practices that reinforce masculine norms and perpetuate biases against women in banking. Investment banking is an industry rife with environments hostile to women, and the industry has been slow to recognize and ameliorate a culture of toxic masculinity. 

These two issues have led to a lack of diversity in investment banking leadership, but they also have serious implications for the companies that rely on investment bankers as advisors in navigating important strategic decisions. Accustomed to a culture that tolerates—and even promotes—toxic masculinity, bankers may ignore and enable corporate leaders that are similarly hostile to women. 

Disclosure and transparency are critical to understanding gender disparities in investment banking and associated barriers and incentives. For example, without accurate diversity data, stakeholders have limited opportunity to pressure investment banks to invest in fostering diversity among their leaders, and firms have fewer incentives to prioritize inclusion. Consistent discussions about the inequities women face in investment banking and how they affect the services investment bankers provide to their clients must continue to occur for meaningful change to be enacted. Moreover, without client focus on the industry’s culture, practices, and makeup, investment banks face little pressure to increase the diversity of their leadership. As companies face greater pressures to address diversity in their leadership, they should think hard about who is advising those leaders.

February 2, 2023

A Sign of the Times?

[Cross-post from The Daily Journal]

By Kevin R. Johnson

Having grown up in the San Gabriel Valley, I know Monterey Park, a tight-knit bedroom community on the eastern outskirts of Los Angeles. Last weekend, the relative peace of the city was disturbed by a mass killing of eleven by a gunman. Two days later, a mass shooting in Half Moon Bay, south of San Francisco, left seven dead, the apparent result of a workplace dispute. Those and similar tragedies have been occurring with tragic regularity. Sadly enough, the truth of the matter is that mass shootings, deaths, and tragedies have become a regular part of U.S. social life. The nation in the last few years has seen a spate of violence at schools, churches, nightclubs, shopping malls, workplaces, and many public places. Together, they reveal much about the way we have become willing to resolve disagreements.

Hatred abounds and no doubt fuels gun violence, with guns generally available. However, guns have long been available in U.S. society. And California, where the latest mass tragedies occurred, have relatively tight gun safety laws. In the end, there appears to be larger social forces at work that have contributed to the spike in gun violence.

We should learn from the events of Jan. 6, 2021 in Washington, D.C. and the concerted effort by a small group to overturn a peaceful presidential election and orderly transition of power through violence. In effect, some of the perpetrators disagreed with Donald Trump’s election defeat. Anger, disappointment, and political frustration in some quarters is understandable. The inability to allow for respectful exchanges of ideas, readily accessible guns, and the belief that violence is a viable alternative to achieve change by silencing others together are a combustible mix.

The events of January 6 show a group of politically disappointed people who thought it acceptable to threaten to take power through violence. Although few really want to “kill the umpire” at a baseball game, some truly did want to kill some political leaders on Jan. 6, such as then-Speaker of the House Nancy Pelosi (and later one man nearly killed her husband Paul in their home). Similar passions appear to have fueled many of the mass shootings.

Unfortunately, as has happened at various times in history, anger, frustration, and disagreements with others has led to violence. For a while, violence, for example, was part and parcel of the struggle over access to abortions, with abortion clinics bombed and doctors who provided reproductive services killed. A long political fight followed, with the Supreme Court ultimately stepping in.

More recently, violence against members of the gay, lesbian, and transgender communities has followed recognition of their rights by political opponents of those rights. For many, unhappiness with political outcomes or other matters did not trigger violence. Recent events show today that violence may be viewed by many Americans as a viable political approach.

As history teaches, racial tensions can lead to violence. Throughout the pandemic, Asian Americans have been on edge in light of the spike in hate crimes against members of their communities. Some claimed that President Trump’s verbal attacks toward Chinese people encouraged violence against them. The spike itself shows the flaws in the claims that Asian Americans (called by some the model minority), even those whose families have been in the United States for generations, are fully accepted in U.S. society. Undoubtedly, some might well blame immigration and migrants for the violence in Monterey Park. They won’t assimilate. “They” live separate from “us.” But some of the culprits in the various attacks apparently have assimilated into the culture of violence that has become a new form of alternative dispute resolution in the United States.

Violence today is viewed in many circles as a form of expressing disagreement. That view affects all of us as a nation.

The tragic events in Monterey Park and Half Moon Bay, two California suburbs known for peace and tranquility, provide an appropriate time for a national soul-searching. Our fabric is frayed and violence has spread like a wildfire. Change must happen if the nation hopes to never see again anger and frustration erupt into violence.