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November 13, 2017

Review of "Artistic License: The Philosophical Problems of Copyright and Appropriation"

By Brian Soucek

[Cross-posted from Notre Dame Philosophical Reviews]


*Book review by Brian Soucek of Darren Hudson Hick's Artistic License: The Philosophical Problems of Copyright and Appropriation

Darren Hudson Hick is a rarity: a sophisticated philosopher of art who understands and cares about the law. His new book has a lot to teach philosophers about how the law both protects authors' rights and limits them, often to protect others who want to sample, quote, adapt, or appropriate existing works within their own. Philosophers of art who care about artistic practice can learn, not only from Hick's rich and varied examples, but also from his account of one of the great forces shaping that practice. Hick's account of copyright is sometimes descriptive, sometimes revisionary, and thus has something to teach lawyers as well. But deciding exactly what lessons the law, with its own distinctive interests, should take away from an account like Hick's -- focused as it is on philosophical clarity and responsiveness to current artistic practice -- is itself a philosophically interesting question, and one I wish Hick's book went even further in answering.


Hick's central question -- Is it wrong for one work to copy another? -- requires him to consider five "interdependent metaphysical and ethical issues" within "the institutional, cultural, and legal framework of intellectual property" (48). They are:


(1) the nature of the works in question, (2) the relationship of the author to the work, (3) the rights of the author and how they arise from this relationship, (4) the relationship holding between the original work and the potentially infringing work, and (5) the rights of nonauthors -- if any -- with regard to a given work (48).


This, then, is the agenda for Hick's book, or at least most of it. Somewhat disconcertingly, the agenda-setting passage above doesn't appear until page 48. First comes an Introduction devoted to Hick's terrific cover image: commercial artist Mick Haggerty's mash-up of Mondrian and Mickey Mouse -- an example I would have loved Hick to reconsider at the end of the book as a test of his account of what appropriation is appropriate. The next two chapters are similarly introductory. Chapter 1 offers examples ranging from Shia LeBeouf to blues music, hip-hop culture to college plagiarism, to make a point that I doubt will surprise anyone willing to read a book-length study on copyright and appropriation: namely, that while artistic making has long been bound up with artistic taking, "remix culture" seems to have accelerated with modern technology. More interesting to me was Hick's observation that some takings are illegal but not immoral (think of a short sample of a drum break), while others -- like biologists' use of Henrietta Lacks' cells -- are immoral but not illegal. This sets up a broader discussion in Chapter 2 about the relationship among artistic practice, philosophy, and copyright law, which regulates and incentivizes certain artistic practices, and makes certain ontological and ethical conclusions. More on this soon.


The book's main line of thought begins in Chapter 3, and it goes, in outline, like this (with my comments in brackets):


 (1) an author of a work is one who has and exercises the power of selecting and arranging elements as constitutive of that work [see Chapter 3, which argues against those who find authorship and originality passé, and Chapter 4, Hick's own account of authorship];


 (2) this creative activity determines the nature of that work (in general, an authored work is a type instantiable in multiple tokens) [see most of Chapter 5];


 (3) this creative activity and the nature of the work give rise to the author's ownership of the authored work -- a natural right to determine the conditions under which that work can be copied [Chapter 6];


 (4) copying another author's work (where the properties of the new item are shared with and depend on those of the preexisting work) without permission constitutes prima facie infringement [see the end of Chapter 5]; and


 (5) though copyright is a natural right, it is not thus an absolute right, and what qualifies as a nonviolating use (copying) of an author's copyrighted work depends on some interest or right of the user outweighing the natural right of copyright [Chapters 7 and 8] (164-165).


I have, of course, just quoted -- which is to say copied -- this summary of Hick's argument from Hick's book itself. And according to the quoted argument, this constitutes a prima facie infringement. Perhaps my lawyers, or NDPR's, should be concerned. But wait! Hick's unexpectedly witty copyright notice at the start of the book gives permission "to reproduce brief quotations from the book for the purposes of critical articles and reviews. Beyond that," he notes, "things quickly become less clear. See chapter 7 . . .". (I would note that things only "become less clear" because Hick invokes standard U.S. copyright protections, rather than the sometimes more permissive ones he argues for in the book. He might, for example, have explicitly granted permission for any use that complies with his theory. This would have the added benefit of allowing Hick to test his theory out in court, should any infringement occur.)


Flipping to Chapter 7's discussion of fair use, we find Hick's central argument: the claim that copying an author's expression of an idea without permission is an infringement of his or her natural right to restrict that copying, but (adopting a distinction of Judith Jarvis Thomson's) it is not a wrongful violation of the author's right if the copying is necessary (or reasonably required) to express the ideas of the copyist. This is one of the two situations Hick describes in which copying is not wrongful and should be legally permitted; the other is appropriation art, which Hick would allow whenever the copied material is used to express a different idea from that of the original.


So, does my quotation above wrongfully violate Darren Hudson Hick's natural right as an author? Several of my chief comments about Hick's book are related to this question.


For starters, I don't quite know the answer. Or, rather, and reassuringly to NPDR's legal staff, I'm fairly confident about the law's answer, but I'm somewhat less sure about Hick's. U.S. law will almost certainly protect me because of the transformative nature of the use and its unlikely effect on Hick's book sales. My confidence here belies Hick's overstated claim that American "fair use doctrine offers effectively no predictive value, and (perhaps worse) sets no reliable precedents" (123). Hick's own test, by contrast, although promising "a principled schema that would offer predictive value to potential copyists" (137), raises questions: was a quotation as long as mine necessary? Was I just lazy? Should I have offered instead my own description of Hick's argument? (Copyright covers only Hick's expression of these ideas, not the ideas themselves.) On Hick's test, my need to copy, and thus its permissibility, seems to hinge on factors like whether I intend to criticize Hick's writing. (In fact, I don't; although the book's style varies from chapter to chapter -- "Can we talk for a minute about Shia LaBeouf?" (9) versus "if some item, W1, has the properties <a1, t1, p1> . . . " (93) -- Hick writes well in both voices.) Quotation would be more necessary if I were trying to give readers a sense of Hick's style, not just the outline of his argument.


Perhaps, though, I am framing the question in the wrong way. Maybe we should look not to my (i.e., the user's) intentions, but to the secondary work itself -- here, this review -- in determining what amount of copying is necessary. Hick has surprisingly little to say about the theory of interpretation that copyright law should adopt in deciding whether a work's copied material was needed, or, in appropriation art, whether the secondary work expresses a distinct idea from the original. This is an area where a philosopher of art, like Hick, could really enlighten courts and legal scholars who have sometimes struggled to understand and choose among intentionalism, formalism, or other interpretive approaches.[1]


These recurring mentions of appropriation art underscore the fact that Hick's book, from its title onward, is very much a book about art. This is hardly surprising: Hick is a philosopher of art, after all. But notice that the passage quoted at length above is in no way limited to artists and artworks. Its talk of "authors" and "works" applies equally to decidedly non-artistic works like this review, to computer software, to boat hulls, and, as the Supreme Court recently told us, to the chevrons on cheerleaders' uniforms. Hick's attention to this distinction leads to one of my favorite moments in his argument.


In Chapter Five, Hick develops, in careful, compelling detail, his ontology of authored works. His account allows us to distinguish multiple works from multiple instantiations of one authored work, and new works that infringe from those that do not. To summarize part of a longer argument: one authored work is distinguished from another if "it has different composite elements or . . . its composite elements have distinct causal bases" (99). If it has the same elements and causal bases, it doesn't matter that that they express different ideas. This isn't true of artworks, however; Hick follows Arthur Danto in suggesting that these have their meaning, or "aboutness," essentially. The result: a piece of appropriation art (say, a Sherrie Levine photograph of a Walker Evans photograph) may be a new artwork, even though it is not a new authored work.


Hick's interesting ontological conclusion leads to a question for the law: should copyright follow artistic practice and allow for perceptibly indiscernible, causally connected (rather than fortuitously similar) artworks? Hick's proposal, in Chapter 8, is that appropriation artworks like Levine's should be allowed as fair use if they express "some idea distinct from that of the original" (159). But this fair use allowance should not bring with it the right to make other copies, or to license further derivative works (158).


Here is a place where Hick's focus on art really matters. His account of appropriation art is revisionary, and end-driven: he seems to assume that appropriation artists like Levine and Richard Prince should be legally permitted to do what they do; copyright law should be revised to make that so. Because appropriation art has become "one of the most fascinating -- and most influential -- movements in contemporary art" (160), Hick wants the law to "seek to find a way of accommodating" it. But why? Surely appropriation art is no more fascinating or influential than fashion design, though the latter goes largely unprotected under U.S. copyright law. Many things we value -- graffiti, civil disobedience -- are not just unprotected, but forbidden by the law. For some of these, their illegality is part of their power. Hick's focus on art, surely a small minority of the copyrighted material in the world, perhaps skews his view on what practices it is especially important for copyright to accommodate.


This brings me, finally, to Hick's claim that authors have a natural right in their original works. Hick rejects the theory of intellectual property enshrined in the U.S. Constitution: an instrumental theory which justifies copyright as an incentive for creative activity that expands the marketplace of ideas. Copyright protections are neither necessary nor sufficient for achieving that end, Hick argues: Homer didn't need it, and Shakespeare would have been hindered by it. Copyright's effectiveness as an incentive to creativity is ultimately an empirical question (106) -- though note, here again, that the empirics should take account of not just art, but many other creations as well. And while copyright's exclusion of fashion is often defended because incentives are less needed there -- copied fashions lead to obsolescence, which spurs new design[2] -- Hick's natural rights argument on behalf of authors should apply fully to fashion design and many other kinds of making as well. I wonder how revisionist Hick is ultimately willing for his theory to be.


This is the question that kept coming back as I read Hick's book: his admirable attempts to make copyright law more coherent, and more firmly grounded, necessarily create tension with the law as it currently exists. That's to be expected. The law lacks philosophy's focus: its interests are often multiple, and sometimes conflicting. Consider, for example, the practical suggestions that Hick offers in the book's Afterword. Recognizing that his revisionary account of fair use for appropriation art might "open the door to widespread piracy," Hick suggests limiting it to appropriation artworks that sell for twice the price of the original, with a requirement that half the sales price goes to the original's creator. If all we cared about were the natural rights of the (original) author, this might work. But Hick's proposal would have a horribly disparate impact on appropriation artists: it would apply when famous artists like Richard Prince take from no-name creators, but not the other way around. To quote two legal scholars, it offers "fair use for the rich and fabulous."[3]Compared to current copyright law, Hick's theory may be more consistent and, perhaps, more predictable, but that is partly because he sidesteps, in this book at least, the distributional and egalitarian interests that I, for one, want copyright law to serve.


Back to my initial question, then: what should the law take from Hick's philosophically rich account of copyright? This depends, I think, on whether and when his conceptual analysis is taking account of the interests of philosophy, or of the artworld, or of the law. Admittedly, these interests will often overlap: as Hick notes (34), philosophers have increasingly aimed at an ontology of art that responds to actual artistic practice -- which is to say, one that incorporates the interests of artists. Similarly, Hick's arguments about why fair use (and, I would add, substantial similarity) cannot hinge solely on artworks' appearance (160) is an example of philosophy bringing conceptual clarity to the law on the law's own terms: the claim is that looking beyond appearances serves the very interests copyright law is meant to advance. (Of course, what those interests should be is always up for dispute.) But, just as the interests of graffiti artists are often in tension with those of property law, those of appropriation artists might not be consonant with those of copyright law. What is needed is an argument for why copyright law, by its own lights, should seek to accommodate the Sherrie Levines and Richard Princes as well as much less known appropriation artists.


This is a provocative, generative book. My comments here are less criticisms than invitations for further work, especially further thinking on the relationship between philosophy of art, artistic practice, non-artistic creative practice, and the categories and values that the law adopts in protecting those practices (or not). Reading this book, however, assures me that Darren Hudson Hick is one of the scholars whose further thoughts on these issues I would most like to hear.



[1] See, e.g., Amy Adler, Fair Use and the Future of Art, 91 N.Y.U. L. Rev. 559 (2016); Robert Kirk Walker and Ben Depoorter, Unavoidable Aesthetic Judgments in Copyright Law: A Community of Practice Standard, 109 Nw. U. L. Rev. 343 (2015); Alfred C. Yen, Copyright Opinions and Aesthetic Theory, 71 S. Cal. L. Rev. 247 (1998). Professor Adler describes how courts employed three different interpretive approaches in one case: Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), which is also one of Hick's primary examples. For my own views on these issues, see Brian Soucek, Aesthetic Judgment in Law, 69 Ala. L. Rev. ___ (forthcoming 2017).


[2] See Kal Raustiala and Christopher Sprigman, The Piracy and Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1687 (2006).


[3] Andrew Gilden and Timothy Greene, Fair Use for the Rich and Fabulous?, 80 U. Chi. L. Rev. Dialogue 88 (2013).

November 11, 2017

How U.S. and UK Deal Structures Protect Minority Shareholders

By Afra Afsharipour

[Cross-posted from The CLS Blue Sky Blog]

Takeover transactions are often the most significant activity affecting corporations and their shareholders. Accordingly, there are intense debates about the value and impact of takeovers and the extent to which law should regulate such transactions. One area of focus for takeover regulation has been the potential impact of takeovers on minority shareholders. The focus on minority shareholders is not surprising as research suggests that laws which protect minority shareholders are associated with stronger financial markets.


In a recent book chapter, I focus on how deal structures affect the protection of minority shareholders in two common law jurisdictions, the U.S. and the UK. I discuss the three most-commonly used methods of effecting a takeover in these jurisdictions—tender offers, schemes of arrangement, and triangular mergers—and assesses both the theoretical and empirical literature on their impact on minority shareholders. In each jurisdiction, lawmakers, regulators and courts have attempted to design rules to address harm to minority shareholders under various deal structures. These rules often result in different rights for shareholders of bidders and targets, and vary among transaction structures, even when economically similar transactions are undertaken. While the UK takeover regime focuses on ex ante regulation, the U.S. system uses some ex ante regulation but places significant emphasis on ex post policing through the courts.


First focusing on the U.S., I address the two most commonly-used deal structures for takeovers of U.S. public companies—a one-step triangular merger and a two-step transaction involving a tender offer followed by a merger. Target shareholders are provided with a say under both structures, either through a vote or through the decision to sell their shares. In addition, several aspects of the securities laws and tender offer rules, for example the best price rule or extensive disclosure rules for tender offers, were specifically designed to lessen the likelihood of abuse of minority target shareholders.


In the U.S., the courts also play an important policing role in regulating the parties’ behavior in takeovers. Target minority shareholders regularly seek redress for any harm through the courts, either through ex post fiduciary duty litigation or appraisal litigation. U.S. law, however, does little to address harm to bidder shareholders. Management can structure takeovers to exclude bidder shareholders from any decision-making role in acquisitions. Moreover, bidder shareholders cannot meaningfully seek any redress through the courts.


An acquisition of a UK public company takes place through the acquisition of shares in the target by the bidder either through an offer (similar to a U.S. tender offer) or through the nearest UK analogue to a U.S.-style merger, a “scheme of arrangement.” While the economic substance of these transactions is similar in the U.S. and UK, the steps that must be followed and the methods of minority shareholder protection are quite different. Unlike the U.S., where hostile takeover activity is difficult, the UK is much more non-protectionist and holds shareholder primacy as a core value. Several of the rules implementing the principles of the UK takeover regime, including the mandatory bid rule and the sell-out rule, are designed to protect minority shareholders.


Over the past decade, schemes of arrangement have become a commonly used acquisition structure in friendly transactions in the UK. UK law treats schemes quite differently from takeover bids. In a scheme, a significant majority of the shareholders of each class can bind the minority, including any dissident shareholders, so long as the scheme is subsequently sanctioned by the court. Some have argued that minority protection in the scheme context should be greater than that in the traditional bid/takeover context since in a scheme even dissenting shareholders are forced to sell once the scheme has been approved. Nevertheless, there is a strong argument that protection for minority shareholders is built into the structure of the scheme itself – namely the 75 percent majority requirement for shareholder approval, the court’s sanction, and the opportunity for full exit rights.


Two other major differences exist among deal structures prevalent in the U.S. and the UK. The UK listing rules expressly contemplate a vote for bidder shareholders in substantial acquisitions. Furthermore, unlike the U.S., where courts play an important role in protecting minority shareholders, courts in the UK do not play a decisive role in most transactions, even in schemes which they formally must approve. The appraisal remedy is not available in the UK, and there is little chance of corporate directors being sued in connection with a takeover.


The chapter then surveys the empirical literature on takeovers to assess whether differences in legal rules governing different deal structures translate into a quantifiable impact on minority shareholders. The answers to this question are somewhat unclear and need further empirical enquiry to determine which of the tools used in the U.S. and UK regimes better protect minority shareholders. Nevertheless, a few insights are suggested by the empirical research. First, despite the differences in each jurisdiction’s regime, target shareholders gain in takeover transactions in both jurisdictions, and in the U.S. these gains are higher in tender offers than in mergers. Second, research suggests that the UK’s takeover rules better protect bidder shareholders in large transactions than does U.S. regulation, which largely deprives bidder shareholders of a role in acquisition transactions. Finally, the research on U.S. transactions suggests that different legal treatment of economically similar acquisition structures may make a difference to minority shareholders.


The comparisons and literature review raise several research questions. The empirical inquiry into UK takeover transactions is quite sparse. For example, no studies empirically explore whether minority shareholders in the UK gain more or less from schemes of arrangement than from takeover bids. Also, do bidder shareholders in the UK gain or lose more in schemes or takeover bids? The empirical inquiry exploring the differences in regulatory approaches in the U.S. and UK is also sparse. For example, it may be useful to further examine which of the tools used in the U.S. and UK regimes better protect minority shareholders. There is also a need for more literature on costs of the regulatory framework imposed by both jurisdictions and whether such regulations can be translated to other countries, as well as a need for further exploration into the institutions needed to implement these regulatory structures. Further inquiry into these issues can help lawmakers determine what features of takeover regulation could be best used by other jurisdictions contemplating takeover regulations.


This post is based on my most recent book chapter, “Deal Structure and Minority Shareholders,” available here.

November 2, 2017

California Dreaming? The Integration of Immigrants into American Society

By Kevin R. Johnson

[Cross-posted from Boom California]

Immigrants, including undocumented immigrants, are unquestionably members of our communities across the United States. Currently, roughly eleven million undocumented immigrants live and work in this country.[1] Employers demand their labor, and immigrants want the work. Nonetheless, the people of United States have long been ambivalent about immigrants. Even in California, now viewed as a pro-immigrant bastion, more attention historically was given to reduce the immigrant population rather than to facilitate the integration of immigrants into American social life.

Consider one stunning example. California voters in 1994 by a 2-1 margin passed an immigration milestone, Proposition 187,[2] known by its supporters as the “Save our State” initiative. The initiative would have banned undocumented students from public schools, required police to report undocumented immigrants to federal authorities, and denied undocumented immigrants access to nearly every state public benefit programs. The California legislature subsequently passed a series of laws of the same ilk, including a particularly noxious one that prohibited the issuance of driver’s licenses to undocumented immigrants (even though there was no evidence of any safety or security problems with the state’s long history of licensing—and safety-testing—undocumented drivers).

With its widely publicized Proposition 187, California unfortunately proved to be a trendsetter for the nation. Following the initiative’s lead, Congress’ 1996 welfare reform legislation stripped many legal immigrants of federal public benefits.[3] More than a decade later, a number of other states, including Alabama, Arizona, Georgia, and South Carolina, passed tough immigration enforcement laws that were, in important respects, similar to Proposition 187.[4]

As Bob Dylan famously said: the times, they are a changing’. Indeed, we are witnessing nothing less than a sea change in state and local policy directed at immigrants in the United States and California again is at the forefront. However, the current trajectory in sub-federal immigration policy—pro-immigrant integration, not pro-immigration enforcement—is dramatically different than it was in the heyday of Proposition 187. Ironically enough, the nation has President Donald Trump, an immigration hawk like no other, to thank.

California’s Changed Responses to Immigrants

Responding to Trump: California Seeks to Promote Immigrant Integration

As promised in the 2016 campaign, President Trump from his first days in office pursued aggressive immigration enforcement measures, ranging from executive orders banning travel from predominantly Muslim nations to mass deportations to announcing steps toward building a wall along the U.S./Mexico border and threats of even greater enforcement efforts. Those steps provoked an immediate and inspired response from many state and local governments—and especially from California. Governor Jerry Brown, Attorney General Xavier Becerra, and Senate President pro Tem Kevin de Leon, led the opposition to the Trump administration’s call for ever-greater immigration enforcement. The resistance has been fueled in no small part by the growing awareness among California lawmakers of the need for increased legal protections for immigrants, among the state’s most vulnerable residents, from the Trump immigration onslaught. The reaction is rooted in notions of fundamental fairness and the firm belief that the aggressive immigration enforcement agenda embraced by the Trump administration threatens to tear families apart, harm communities, and sow widespread human misery, all in the name of “enforcing the law.”

Abandoning the punitive approach toward immigrants exemplified by Proposition 187, California for more than a decade has been at the forefront of taking steps to more fully integrate undocumented immigrant residents into the social fabric. Consider just a few contemporary examples. In 2001, the California legislature passed Assembly Bill (AB) 540, a path-breaking law that allows undocumented immigrants to pay in-state fees at California community colleges and universities.[5] This law, which represents a meaningful step toward greater educational access for all residents, commenced a trend among the states. Several years later, the legislature went further and passed the California DREAM Act, which made undocumented college students eligible for state scholarships to help them pay for their education.[6]

Not limiting its efforts to higher education, the California legislature took a number of other steps to promote the integration of the state’s immigrant population. Seeking to facilitate the trust of immigrants in local police officers (who, in turn, need the cooperation of immigrants, and all members of the community, to most effectively protect the public safety), the legislature in 2013 passed the TRUST Act,[7] which restricts state and local cooperation with federal immigration enforcement authorities. Among other things, it prohibits the detention of immigrants longer than required by law so that federal officers can, if they so desire, take the noncitizens into custody. The TRUST Act represented a response to the U.S. government’s hyper-aggressive Secure Communities program,[8] which greatly expanded the criminal justice removal pipeline for immigrants who had minor (as well serious) brushes with the law and directly resulted in the deportation of hundreds of thousands of people a year. In addition, after considerable debate and years of grassroots activism, the California legislature restored driver’s license eligibility for undocumented immigrants,[9] a significant practical step toward allowing undocumented immigrants to participate more fully in economic and social life, reducing fears of removal due to something as mundane and ordinary as operating a motor vehicle. Showing just how far the state had come from the dark days of Proposition 187, the California Supreme Court in 2014 ruled that a California law allowed undocumented immigrants to be licensed to practice law.[10]

In response to the Trump administration’s strident immigration enforcement agenda, the California legislature is active about taking steps to restrict state and local cooperation with federal immigration enforcement. Indeed, the legislature sought nothing less than to declare California to be a “sanctuary state,” a bill (SB 54) that Governor Jerry Brown signed 5 October 2017, which takes effect January 2018.[11]

Other state and local efforts to facilitate the integration of immigrants into civil society, which are wholly consistent with federal law, might include, but are not limited to the following:

  1. Pursuing additional policies that encourage the cooperation of immigrants with criminal law enforcement authorities;
  2. Ensuring adequate access to English-as-second-language programs so that immigrants are better able to acquire English language skills and better assimilate into U.S. society;
  3. Providing that immigrants, including undocumented immigrants, are generally eligible for state and local licenses necessary to engage in certain professions and occupations (from building contractors to hair dressers) and more fully participate in the American economy; and
  4. Making noncitizens eligible for public benefits programs that are part of the economic safety net for other residents.

Recent years have seen the emergence of tensions between the federal, state, and local governments about immigration enforcement and immigration policy. While state and local governments increasingly seek to protect their immigrant residents, President Trump has disparaged many of those state and local efforts as “sanctuary” policies that undermine the enforcement of U.S. immigration law. His administration has gone so far as to threaten to eliminate federal funding to “sanctuary cities.”

We should not forget that state and local governments play important roles in ensuring the inclusion of all residents, including immigrants. Such efforts include steps by state and local governments to promote immigrant integration. State and local measures that move us toward a society in which immigrants are full members of the community, not marginalized peoples living in the shadows, deserve support and encouragement. The Trump administration unfortunately attacks, disparages, and derides those laws and policies.

Why California’s Immigration Turnaround?—The Response to Proposition 187

One might wonder on the issue of immigration policy from 1994 to 2017 what explains the stark political turnaround in California. The short answer is that Proposition 187 changed everything.

First of all, passage of the anti-immigrant milestone spurred a generation of engaged political activism. In Proposition 187’s wake, naturalization rates for immigrants spiked and hundreds of thousands of immigrants became newly-minted U.S. citizens (and part of the electorate). In turn, increasing numbers of Latina/o citizens voted, including recently naturalized ones. Not surprisingly, the number of Latina/o elected to the California legislature grew significantly and Republican legislators slowly but surely dwindled in numbers. The legislature’s racial and political composition changed with the election of increasing numbers of Latina/os and Democrats came to dominate the legislature. In fact, California Pete Wilson, who won re-election largely due to his ardent support for Proposition 187, was later effectively exiled, as it were, from California politics, having forever alienated the growing Latina/o electorate.

When all was said and done Proposition 187 dramatically changed the trajectory of California law and policy toward immigrants, as well as the state’s entire political landscape. One can only wonder whether President Trump’s immigration enforcement priorities might ultimately result in a similar political reaction on a national scale.

Providing Counsel to Immigrants Facing Removal

The specter of greatly increased removal efforts by the Trump administration has provoked great fear in immigrant communities. The “Trump effect” has led states and local governments to adopt laws and policies that protect immigrant members of communities and promote their integration. Some state and local governments have looked to provide the most fundamental protection for immigrants resisting removal—ensuring access to legal representation.

Having campaigned on a platform that included tough immigration enforcement, Donald Trump did not surprise most Americans when soon after his inauguration he announced aggressive immigration enforcement measures, including four executive orders on immigration in his first three months in office. States have taken a number of measures intended to moderate the adverse impacts of those tough policies. More are under consideration, including proposals to provide greater access to counsel to immigrants facing removal from the United States.

Unlike the Fifth Amendment’s guarantee of counsel to criminal defendants, the U.S immigration laws fail to ensure that immigrants, legal and undocumented, have an attorney in removal proceedings, which are classified as civil in nature.[12] Similar to the movement in the twentieth century to ensure that indigent criminal defendants are provided with attorneys, an organized movement has emerged to ensure legal representation for all immigrants facing removal from the United States.

Guaranteed representation for immigrants facing removal is only fair. As the Supreme Court has emphasized, a deportation hearing can “result in the loss of all that makes life worth living.”[13] That alone suggests the great need for guaranteed representation for immigrants facing deportation. Moreover, the nature of the U.S. immigration laws, which are rivaled for complexity only by the Internal Revenue Code, makes an attorney essential. In addition, the vast majority of immigrants, due to language and culture differences, cannot reasonably be expected to fully comprehend the many nuances, legal and otherwise, of the removal process.

The bottom line is that, absent legal representation, an immigrant facing removal faces nearly insurmountable odds in staving off deportation. Not surprisingly, the available evidence in fact demonstrates that represented immigrants successfully resist removal at much higher rates than unrepresented immigrants.[14]

Scholars for years have argued for guaranteeing counsel to immigrants facing removal from the United States.[15] In direct response to the Trump administration’s tough immigration stances, state and local governments in growing numbers are beginning to allocate funds for attorneys to represent immigrants facing removal.[16] For example, the California budget approved in 2017 provides $15 million to help secure counsel for immigrants facing deportation.[17]

One Model: The University of California’s Immigrant Legal Services Center

For several years running, the Obama administration set records by removing some 400,000 immigrants a year. Young undocumented immigrants were among the immigrants caught in the crossfire.

To begin addressing pressing immigrant student needs, the University of California (UC) in 2015 created a form of student services never before seen in higher education.[18] In establishing the UC Undocumented Legal Services Center (later renamed the UC Immigrant Legal Services Center),[19] the University demonstrated how it can serve all students—including immigrants—and the greater community of the state of California.

Created by UC President Janet Napolitano, former Secretary of the Department of Homeland Security who was responsible for enforcement of the U.S. immigration laws, the Immigrant Legal Services Center serves the unique legal needs of undocumented students and their parents. Housed at the UC Davis School of Law, home of a well-established Immigration Law Clinic[20] as well as a group of influential immigration law scholars, the Center provides legal services to undocumented students and their families on the UC campuses at Irvine, Merced, Los Angeles, Riverside, San Diego, San Francisco, Santa Barbara, and Santa Cruz. (The only other UC campus, UC Berkeley, has its own legal assistance program for immigrants.)

One critically important feature of the center’s representation warrants explanation. The idea behind extending services to the parents of undocumented UC students involves a well-researched common sense phenomenon: students are in a significantly better position to succeed academically if they do not fear that their parents are at risk of removal.

The Center has plenty of potential clients, with more coming in with every new entering class. Several hundred undocumented students are enrolled at each of the campuses of the University of California system. Many of them are from Mexico or Central America. However, the University has undocumented students literally from around the world, including Asia, Africa, and Europe.

The efforts of the UC Immigrant Legal Services Center immeasurably benefit undocumented students and their families. Many of the students are eligible for relief under the U.S. immigration laws that stabilize their daily lives and, as a result, help to improve their academic success.

At the time that the Center was founded, attorneys expected to focus on assisting students with applications for relief under the Obama administration’s Deferred Action for Childhood Arrivals program, which was originally created in 2012 and dismantled by President Trump in 2017.[21] However, the legal work proved to be much more varied than initially anticipated. Some students and their family members are eligible for immigrant visas as well as citizenship. They need legal help to identify the potential ways of regularizing their immigration status and to navigate the complex, and often lengthy, bureaucratic process. Many students understandably want to regularize their immigration status so they are able to come and go from the United States and thus can participate in study abroad programs just like many other college students do. Some students are eligible for various forms of relief from removal under the U.S. immigration laws but need legal assistance to identify and collect the information necessary to make their case.

The Quest for Justice for All (Including Immigrants)

As with the efforts to provide legal representation, state and local governments must focus on how to best address the needs of all residents, including immigrants, and strive to ensure that immigrants are treated as full members of society. One important way to do so is provide attorneys to represent immigrants facing removal from the United States. As has been discussed, state and local governments are making efforts to do so. California has been at the forefront of the movement but the state of New York and many cities, including Austin, Baltimore, Chicago, New York City, and Washington D.C., as well as Sacramento, Los Angeles, and San Francisco, have already taken steps to assisting immigrant residents secure representation.

Through measures to help ensure counsel for all immigrants facing deportation, we see public support for a more procedurally fair and legitimate system—and one consistent with the ideal of “justice for all.” Through providing legal representation and taking other measures to protect immigrant residents, state and local governments are pursuing their proper role of facilitating the integration of immigrants into civil society. In the past, popular immigration enforcement laws, such as Proposition 187 and Arizona’s infamous SB 1070 that the Supreme Court invalidated in large part,[22] which made state and local police central to immigrant enforcement, had the opposite effect. Far from promoting immigrant integration, these laws have de-stabilized immigrant communities and marginalized, not integrated, significant numbers of state and local residents.

Lawyers unquestionably can help to protect the rights of immigrants. Other state and local immigrant integration measures can as well. In pursuing such measures, California hopefully can provide guidance to the nation and encourage other state and local governments to pursue immigrant integration strategies.

In the long run, however, state and local governments can only do so much to reduce the harsh impacts of the U.S. immigration laws on immigrants. Fundamental change to those laws is necessary to bring full justice to immigrants. To that end, Congress at some point must overhaul the antiquated Immigration and Nationality Act of 1952, which was forged at the height of the Cold War and is not well-suited to addressing the nation’s 21st century immigration needs. In such comprehensive reform efforts, the labor needs of the United States and the precarious status of undocumented immigrants living here will need to be addressed.



[1] Jeffrey S. Passel and D’Vera Cohn, “Overall Number of U.S. Unauthorized Immigrants Holds Steady Since 2009,” Pew Research Center, 20 September 2016, available at

[2] California Proposition 187, Illegal Aliens Ineligible for Public Benefits (1994), Ballotpedia, available at,Illegal_Aliens_Ineligible_for_Public_Benefits(1994).

[3] Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105.

[4] The immigration enforcement laws of these other states suffered the same fate as Proposition 187: the courts struck them down. See, for example Arizona v. United States, 567 U.S. 387 (2012); United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013); United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012); Georgia Latino Alliance v. Human Rights v. Deal, 691 F.3d 1250 (11th Cir. 2012).

[5] California Assembly Bill 540, Cal. Legis. 2000-01 (codified at Cal. Ed. Code § 68130.5).

[6] California Assembly Bills 130, 131, Cal. Legis. 2010-11.

[7] California Assembly Bill 4, 2013 Cal. Stat 4650 (codified at Cal. Gov’t Code §§ 7282-7282.5).

[8] Due to state and local resistance to the impacts of Secure Communities, President Obama discontinued that program in November 2014; President Trump, however, reactivated it in January 2017. U.S. Immigration and Customs Enforcement, Secure Communities, available

[9] AB-60 Driver’s License in California, DMV.ORG, available at

[10] In re Garcia, 58 Cal. 4th 440 (2014).

[11] Jasmine Ulloa, “California becomes ‘sanctuary state’ in rebuke of Trump immigration policy,” Los Angeles Times, 5 October 2017,

[12] Immigration and Nationality Act § 292, 8 U.S.C. § 1362 (providing that noncitizens can be represented in removal proceedings “at no expense to the Government”).

[13] Bridges v. Wixon, 326 U.S. 135, 147 (1945) (citation omitted) (emphasis added).

[14] Ingrid V. Eagly and Steven Shafer, “A National Study of Access to Counsel in Immigration Court,” University of Pennsylvania Law Review 164 (2015): 1.

[15] See, for example, Kevin R. Johnson, “An Immigration Gideon for Lawful Permanent Residents,” Yale Law Journal 122 (2013): 2394; Mark Nofieri, “Cascading Constitutional Deprivation: The Right to Be Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings,” Michigan Journal of Race and Law 18 (2012): 63

[16] Jennifer M. Chacón, “Privatized Immigration Enforcement,” Harvard Civil Rights-Civil Liberties Law Review 52 (2017): 1, 6 (noting that “some states and localities with large numbers of noncitizen residents have begun to provide funding for immigrant representation”).

[17] Katy Murphy, “California Budget Deal Includes Deportation Defense Fund for Undocumented Immigrants,” San Jose Mercury, 16 June 2017,

[18] Kevin R. Johnson, “New UC Center Serves a Most Vulnerable Student Population: A New Trend in Higher Education?” Hispanic Outlook in Higher Education, 14 December 2015, p. 24.

[19] UC Immigrant Legal Services Center, available at

[20] For a discussion of the creation of the clinic and its pedagogical and social justice goals, see Kevin R. Johnson and Amagda Pérez, “Clinical Legal Education and the U.C. Davis Immigration Law Clinic: Putting Theory into Practice and Practice into Theory,” SMU Law Review 51(1998): 1423.

[21] U.S. Citizenship and Immigration Services, Consideration of Deferred Action for Childhood Arrivals (DACA), available at

[22] Arizona v. United States, 567 U.S. 387 (2012).

November 2, 2017

The Original Meaning of the Alien Tort Statute

By William Dodge

[Cross-posted from Just Security]

At oral argument in Jesner v. Arab Bank, Supreme Court Justice Neil Gorsuch raised a theory about the about the original meaning of the Alien Tort Statute (ATS), a provision of the First Judiciary Act of 1789 that gave the district courts cognizance “of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” Relying on the work of Professors Anthony Bellia and Bradford Clark, Justice Gorsuch suggested that the ATS was originally intended to grant jurisdiction only when the defendant was a U.S. citizen. In a post on Lawfare, Bellia and Clark try to explain why Justice Gorsuch is right. Here, I try to explain why Bellia and Clark are wrong.

The Supreme Court has examined the history of the ATS before. In Sosa v. Alvarez-Machain, relying on the amicus brief of professors of federal jurisdiction and legal history that I wrote, the Court traced the origins of the ATS to a 1781 resolution of the Continental Congress recommending that the states punish offenses against the law of nations and authorize suits for damages by the injured parties. The Court noted that the issue was given fresh urgency by the 1784 Marbois incident, in which a French adventurer assaulted the Secretary of the French Legation in Philadelphia, François Barbé-Marbois. The Court concluded that Congress passed the ATS to cover the three offenses against the law of nations that Blackstone had listed in his Commentaries on the Laws of England—offences against ambassadors, violations of safe-conducts, and piracy. Finally, the Court held that ATS claims based on modern international law should be limited to norms as generally accepted and as specifically defined as those eighteenth century paradigms. 

Bellia and Clark’s theory of the ATS’s coverage is narrower than Sosa’s in some ways and broader in others. Their theory is narrower because it is limited to torts committed by U.S. citizens. As Bellia and Clark explain, the eighteenth-century law of nations “required the United States (like all nations) to redress acts of violence by its own citizens against citizens of foreign nations (with whom the United States was at peace) by imposing criminal punishment, extraditing the offender, or providing a civil remedy. Failure to redress such violence in one of these ways gave the offended nation just cause to retaliate against the United States, including through war.” Their theory is broader because it is not limited to the three paradigms that Blackstone identified but encompasses all “acts of violence by a citizen of one nation against the citizen of another.” Indeed, Bellia and Clark deny that the ATS was intended to reach offenses against ambassadors, violations of safe conducts, and piracy at all. Congress addressed these violations of the law of nations separately, and apparently exclusively, by making them criminal offenses in the Crimes Act of 1790. They write, “the ATS was not duplicative of other federal statutes.” Thus, if Justice Gorsuch really wants to follow Bellia and Clark, he would have to abandon the Sosa test for actionable norms, for it makes no sense to tie the ATS cause of action to eighteenth-century paradigms that the ATS was not supposed to cover. He would have to conclude instead that all acts of violence committed by U.S. defendants, natural persons and corporations alike, are torts in violation of the law of nations for which aliens may bring suit in federal court under the ATS.

There is no doubt that the founding generation was concerned about violations of the law of nations for which the United States might be held responsible by other nations. But the text and history of the ATS show that Congress’s concerns were not limited to violations committed by U.S. citizens. The text and history of the ATS also refute just about every other aspect of Bellia and Clark’s theory.

The 1781 Resolution

First, take the 1781 resolution of the Continental Congress that Sosa recognized as the forerunner of the ATS. (As Sarah Cleveland and I have noted, this resolution was also the forerunner of the Offenses Clause in the U.S. Constitution.) The resolution recommended that the states “provide expeditious, exemplary and adequate punishment” for “offences against the law of nations.” Contrary to Bellia and Clark’s theory, the resolution did not refer generally to all acts of violence by U.S. citizens against citizens of foreign nations but specifically listed violations of safe conducts, infractions of the immunities of ambassadors, and infractions of treaties to which the United States was party. This enumeration tracks Blackstone’s list of offenses against the law of nations, with the addition of treaties (which were commonly understood to be part of the law of nations) and the omission of piracy (which the Continental Congress already had authority to punish by itself under the Articles of Confederation).

Contrary to Bellia and Clark’s theory, the 1781 resolution also shows that the Continental Congress saw no inconsistency in providing a civil remedy on top of criminal punishments. The resolution further recommended that the states “authorise suits to be instituted for damages by the party injured.” It is this recommendation that the First Congress later implemented by passing the ATS.

The 1781 resolution does support Bellia and Clark’s theory in one respect. The report of the committee that prepared the resolution expressed concern about offenses against the law of nations “by a citizen of the United States.” But this limitation did not make it into the text of the ATS, and the Marbois incident explains why.

The Marbois Incident

Although the violence against Marbois in 1784 was not inflicted by a citizen of the United States, the French Ambassador considered it a “violation of the laws of Nations” and formally complained to the Continental Congress. Although the national government had no authority to redress this violation, the State of Pennsylvania did, and the assailant was tried and convicted for “an infraction of the law of Nations.”

Bellia and Clark argue that the First Congress addressed the Marbois incident in other ways, by giving the Supreme Court original jurisdiction over cases involving ambassadors and by making assaults on ambassadors a criminal offense. But the fact that a replay of the Marbois incident would have been covered by Section 13 of the Judiciary Act because it involved a foreign diplomat does not mean that such an incident would not also have been covered by Section 9 of the Judiciary Act because it involved a tort in violation of the law of nations. Jurisdictional grants often overlap. Nor does the fact that Congress provided criminal punishment for assaults on ambassadors and other public ministers show that Congress would not also have wanted to allow the injured minister to bring a civil suit in federal court (as Bellia and Clark appear to concede by invoking Section 13’s provision allowing civil suits).

In light of this history, it seems implausible that the First Congress would not have understood the ATS’s reference to “all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States” to include a case like the Marbois incident. After all, Blackstone had listed infringement of the rights of ambassadors as an offense against the law of nations. The Continental Congress had done the same in 1781, urging the states to punish such violations and permit suits for damages. And when such an event had actually occurred in Philadelphia, both the French ambassador and the Pennsylvania court had condemned it as a violation of the law of nations, despite the fact that it had not been committed by a citizen of the United States.

The Text of the ATS

The text of the ATS also refutes Bellia and Clark’s theory—both their attempt to narrow the ATS to torts by U.S. citizens and their attempt to broaden it to all acts of violence. As originally enacted, the ATS gave the district courts cognizance “of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”

One will notice immediately that, while the ATS limits potential plaintiffs to aliens, it does not limit potential defendants to U.S. citizens. Bellia and Clark argue that “the ATS did not need to spell out that suits by an alien for ‘a tort only in violation of the law of nations’ meant a tort committed by a U.S. citizen.” This limitation would have been obvious, they assert, “[b]ecause the United States’ obligation under the law of nations was limited to redressing harms by U.S. citizens against aliens.” But if it was unnecessary to spell out that the defendant must be a U.S. citizen, it should have been equally unnecessary to spell out that the plaintiff must be an alien. Under their theory, both limitations would have been implicit in the concept of “a tort only in violation of the law of nations.” The fact that Congress imposed one limitation, and not the other, shows that the ATS is not limited to suits brought against U.S. citizens, and the Marbois incident explains why.

It is also telling that early courts did not read the ATS as limited to suits brought against U.S. citizens. Both Moxon v. The Fanny (1793) and Bolchos v. Darrel (1795) involved claims against foreign defendants. If the limitation to U.S. defendants was as obvious as Bellia and Clark suggest, it is odd that neither court mentioned it.

The text of the ATS also refutes Bellia and Clark’s argument that the ATS was intended to reach all acts of violence. Under their theory, the United States would violate the law of nations by failing to provide redress to an injured alien. But the text of the ATS describes the tort itself as being “in violation of the law of nations or a treaty of the United States.” In an earlier post, I relied on the word “committed,” which appears in the current codification of the ATS but not in the original statute. But the basic argument is the same. Under both the original text and the modern text, the ATS requires that the tort violate the law of nation, not that the failure to provide redress does. Blackstone had identified three offenses that would qualify: infringement of the rights of ambassadors, violations of safe-conducts, and piracy. The Continental Congress relied on this list in 1781 when it urged the states to punish offenses against the law of nations and permit suits for damages. There is no reason to think that the First Congress adopted a broader focus when it made good on the 1781 resolution by passing the ATS.

Article III

Bellia and Clark’s final argument is that suits between two aliens violate Article III because they exceed the limits of diversity jurisdiction. The modern answer to that concern is that ATS suits today arise under the federal-common-law cause of action recognized in Sosa. The original answer is that the law of nations was considered part of “the Laws of the United States” for purposes of Article III’s grant of “arising under” jurisdiction. For a full examination of the evidence on both sides, readers should consult Professor Curtis Bradley’s 2002 article and my response. Here, I will limit myself to just four points.

First, Article III’s reference to “Laws of the United States” is broader than Article VI’s reference to “Laws of the United States which shall be made in pursuance [of this Constitution].” The difference in text suggests that there is at least one category of laws that are “Law of the United States” but not made under the Constitution, and the law nations would seem to be the most likely candidate. Second, many of the plans and drafts at the Constitutional Convention on which the final Constitution was based provided for federal jurisdiction over cases arising under the law of nations. Third, during the ratification debates, a number of people read Article III as extending to cases arising under the law of nations. John Jay praised the breadth of Article III in Federalist No. 3, arguing that “[u]nder the national government, treaties and articles of treaties, as well as the law of nations, will always be expounded in one sense,” while William Grayson criticized it at the Virginia ratifying convention for covering “all cases depending on the law of nations.”

Finally, interpreting Article III’s “arising under” grant to include the law of nations will not open the floodgates to suits under international law. Article III is not self-executing. Congress must pass a statute to give lower federal courts jurisdiction. The general federal question statute is narrower than the Article III grant, and Sosa suggested in a footnote that the statutory grant should not be interpreted reach claims arising under the law of nations.

But interpreting Article III’s “arising under” grant to include the law of nations would allow ATS to cover cases between two aliens that involve torts in violation of the law of nations—cases like Marbois’s in the eighteenth century, and cases like Filartiga and Jesner today. That is plainly what Congress intended.

October 17, 2017

To Save Their Insurance Markets, States Should Issue Obamacare Bonds

By Darien Shanske

[Cross-posted from]

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

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

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

October 16, 2017

Oral Arguments in Jesner v. Arab Bank: Supreme Court May Favor Two Steps to Corporate Liability for Human Rights Violations

By William Dodge

[Cross-posted from Just Security]

Ed. note. This article is the latest in our series on the U.S. Supreme Court case Jesner. v. Arab Bank, a case that is slated to resolve the question of whether corporations can be sued under international law for human rights violations and terrorism.

On Wednesday, the U.S. Supreme Court heard oral arguments in Jesner v. Arab Bank, PLC, which presents the question whether corporations can be sued for human rights violations in U.S. courts under the Alien Tort Statute (ATS). The plaintiffs alleged that Arab Bank knowingly funneled millions of dollars through its New York branch to finance terrorist attacks in Israel, the West Bank, and Gaza. In a parallel suit brought by U.S. citizens under a separate federal statute, the Antiterrorism Act, Arab Bank was found liable for doing just that. The Second Circuit rejected the plaintiffs’ claims, however, on the ground that corporations can never be sued under the ATS. I previewed the arguments made in the briefs here. I also filed a brief on behalf of International Law Scholars in support of the plaintiffs.

At oral argument, the Justices seemed to be looking at the question in two steps: (1) whether customary international law permits corporate liability; and (2) assuming it does, whether the ATS cause of action should be interpreted to permit corporate liability. Arab Bank’s lawyer Paul Clement joked about Chevron, the Supreme Court’s doctrine for deference to administrative agencies, which famously has two steps (p. 53). And the Supreme Court has recently articulated a two-step framework for applying the presumption against extraterritoriality. So perhaps the ATS will be next.

Justice Kennedy suggested that “what parties are bound” by a norm of international law should be part of the question at “Sosa step 1, where we ask if there’s a specific universal norm” (p. 24). (Sosa is the 2004 case in which the Supreme Court recognized a cause of action for claims brought under the ATS.) Plaintiffs’ counsel Jeffrey Fisher responded that rules of corporate liability, like respondeat superior, are questions of domestic law (p. 25). While that is true, it may be useful to distinguish two different corporate liability questions. Whether a particular norm of international law applies to corporations is a question of international law to be addressed at step one, as Justice Kennedy suggested. And as the U.S. government argued in its amicus brief, the norms that are actionable under the ATS do not distinguish between natural persons and corporations. As a second-order question, precisely what form corporate liability should take (Justice Kennedy mentioned strict liability, vicarious liability, and respondeat superior as examples) is a matter of domestic law. Indeed, Arab Bank’s counsel seemed to concede in a later exchange with Justice Kagan that the particular form of corporate liability—whether joint and several liability is available, for example—“might get you closer to a remedial question” to be addressed at step two of the analysis (p. 55).

Justice Breyer spent some time discussing various treaties that impose liability on corporations with Mr. Clement, Arab Bank’s lawyer (pp. 43-45, 47, 50-51, 56-57). But the details of these treaties are really beside the point. This is not just because the treaties are designed to operate through domestic law, as Mr. Clement pointed out (p. 57). It is also because plaintiffs have not brought their claims under the treaties but rather under customary international law. To be sure, some of these treaties may be relevant as evidence of customary international law. But the key question at step one of the ATS analysis is whether the customary international law norms that are actionable under the ATS distinguish between natural persons and corporations. As the amicus brief for the Yale Law School Center for Global Legal Challenges shows in detail, none of these norms do.

At the second step in the analysis, some of the Justices expressed concern about the foreign relations implications of holding corporations liable for human rights violations. Chief Justice Roberts noted that the ATS was passed “to avoid foreign entanglements” but wondered “if extending it to corporate liability is, in fact, going to have the . . . problematic result of increasing our entanglements” (p. 7). Justice Alito suggested that at “step 2 of Sosa,” on “the question of whether we should recognize a federal common law claim under particular circumstances,” the Court might “balance the international repercussions” of allowing suits against corporations against the repercussions of not doing so (p. 10). Mr. Fisher, lawyer for the plaintiffs, agreed that ATS suits could have “international implications,” but responded that the Court could address those concerns with “other kinds of doctrines that more directly deal with those concerns” like extraterritoriality, forum non conveniens, and political question (p. 11). Justice Sotomayor also mentioned personal jurisdiction under Daimler as a limitation (pp. 5-6), and Justice Ginsburg added the possibility of an exhaustion requirement (pp. 23-24). Denying corporate liability, Fisher argued, was simply “a mismatch” with concerns about foreign relations (p. 13).

Arguing for the United States as amicus, Brian Fletcher agreed with plaintiffs that the Second Circuit’s “categorical rule” against corporate liability was “wrong” (p. 27). He pointed out that this case would not have produced “less friction if it had been brought against the high-ranking officers and employees of the bank rather than against the bank itself” (p. 28). Later in the argument, Justice Kagan described the question of corporate liability as “completely orthogonal” to the foreign relations concerns raised by Arab Bank (p. 64). Mr. Clement responded that corporate liability and foreign relations overlapped in practice because “the real impact of corporate liability” is on foreign corporations in which foreign governments have an interest, “like Arab Bank” (p. 65). In fact, the suit against Arab Bank is an unusual one; foreign corporate defendants are the exception not the rule today. The Supreme Court’s decision in Kiobel to limit the geographic scope of the ATS cause of action to cases that “touch and concern” the United States has resulted in a large number of dismissals, as Mr. Fisher pointed out (p. 5), including virtually all of the suits against foreign corporations.

Justice Gorsuch repeatedly asked whether the ATS cause of action should be limited to U.S. defendants (pp. 16, 34, 71-72). He invoked an argument by Professors Anthony Bellia and Bradford Clark that the First Congress was concerned that “some action by an American citizen . . . might be tagged to the United States itself and be cause for just war by a foreign power” (p. 16). Justice Gorsuch also suggested that “you need an American defendant in order to have diversity jurisdiction” under Article III (p. 16).

With respect to Bellia and Clark’s argument, both Mr. Fisher for the plaintiffs (p. 16) and Mr. Fletcher for the U.S. government (p. 34-37) noted that limiting the ATS to American defendants would fail to account for the 1784 Marbois incident, which the Supreme Court in Sosa recognized as one of the events that inspired the provision. Chief Justice Roberts and Justice Alito accepted in their own questions that the ATS was intended to reach cases like the Marbois incident (pp. 7, 14). Justice Sotomayor noted that the nationality of the defendant would also have been irrelevant in cases of piracy (pp. 37-38). And Mr. Fisher concluded by referring to the text of the ATS, which limits the citizenship of plaintiffs to aliens but places no limits on the citizenship of defendants (pp. 70-71).

There are other problems with the Bellia-Clark theory that were not mentioned at oral argument. Under their theory, the ATS was intended to address only situations where the United States would be in breach of international law if it did not provide redress to aliens injured by U.S. citizens. In such situations, the violation of the law of nations would occur not at the time of the tort but later, when the United States failed to provide redress. But this is hard to square with the text of the ATS, which refers to suits “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The word “committed” suggests that the international law violation occurs at the time of the tort, rather than some time later. Another problem with the Bellia-Clark theory is that the United States’ obligation under international law to provide redress would have been fully satisfied by other statutes (including the 1790 law mentioned by Mr. Clement (p. 35)), which provided criminal liability for assaults on ambassadors and the like. The ATS was clearly designed to go beyond what was necessary to satisfy the United States’ obligations under international law. None of the other Justices seemed interested in the Bellia-Clark theory at oral argument, and it will be surprising if it garners more than one vote.

Justice Gorsuch’s concern over Article III is also misplaced. First, there is strong historical evidence that the phrase “Laws of the United States” in Article III’s arising-under grant was understood at ratification to include the law of nations. Among other things, the phrase in Article III is broader than the corresponding phrase in the Supremacy Clause of Article VI, which refers more narrowly to laws of the United States made in pursuance of the Constitution. But the Supreme Court would not have to adopt this interpretation to satisfy Article III, because ATS suits now arise under the federal-common-law cause of action that Sosa recognized. Both of the Supreme Court’s prior cases under the ATS have involved one alien suing another, as have most of the successful cases across the federal courts since the landmark ATS decision by the Second Circuit in Filartiga over 35 years ago.

If the Justices stick to the question of corporate liability, the Second Circuit may be reversed by a large margin. The concerns expressed at oral argument by the more conservative Justices have little to do with corporate liability. But if the vote is a close one, it is likely to be decided by Justice Kennedy, whose concurring opinion in Kiobel stressed the narrowness of that decision and aimed to keep the door open both for suits against corporations and for suits where some of the relevant conduct occurred abroad.

Justice Kennedy was surprisingly quiet at oral argument, asking just two questions about whether the identity of the party bound by the customary-international-law norm should be part of the analysis at step one. The question is a good one, and I believe the answer is yes—the particular norm of customary international law must apply to a corporation before a corporation may be sued under the ATS for violating that norm. And as the amicus brief for the United States explains, all of the norms actionable under the ATS do apply to corporations. Recognizing this fact should lead Justice Kennedy to adopt the position urged by the United States on the question of corporate liability and to reverse the Second Circuit.

October 16, 2017

Opinion Analysis: California Cannabis Coalition v. City of Upland

By David A. Carrillo & Darien Shanske

[Cross-posted from SCOCAblog]

This is a preview of a forthcoming article, California Constitutional Law: Interpreting Restrictions on the Initiative Power (2017) 51 U.C. Davis L. Rev. Online 65, David A. Carrillo and Darien Shanske. Reprinted by permission.


On August 28, 2017 the California Supreme Court decided California Cannabis Coal. v. City of Upland, (Aug. 28, 2017, S234148) ___Cal.4th___ . Justice Cuéllar wrote the opinion, joined by the Chief Justice and Justices Werdegar, Chin, and Corrigan. Justice Kruger wrote separately to concur in part and dissent in part; Justice Liu joined that opinion.

The basic facts of the case are these.[1] A local initiative in the city of Upland proposed to require marijuana dispensaries pay a city fee. The proponents wanted the initiative to be considered by voters at a special election. The city concluded that because the fee would exceed the actual costs, it constituted a general tax. To the city, this meant that the initiative could not be voted on during a special election; instead, under California constitution Article XIII C, section 2 the measure had to be submitted to the voters at the next general election. This provision of the constitution clearly requires that all (general) tax increases imposed by a local government be submitted to the voters at a general election.[2] So if a city council (like Upland’s) proposes a tax increase, then it must follow the Proposition 218 rule and wait for the next general election. The question posed by this case was whether this rule also applies to general tax measures put on the ballot by the voters. The court decided that this provision does not restrain voter initiatives. Therefore, if the voters propose the increase of a general tax, then a vote on the tax can occur at a special election.


Debating the definition of “government” is unproductive.

The key question confronting the court was whether the phrase “no local government may impose . . .” also served to impose a limit on the voters of a local government acting through the initiative process. The majority thought that this phrase did not include the electorate; the dissent thought that it did. Though both sides made reasonable points, we think that the arguments based on the language of the provision are so evenly balanced that the heavy lifting is done by the majority’s presumption in favor of liberally construing the initiative power. The majority candidly says as much.[3] Indeed, the majority explains that when it comes to limiting the electorate’s initiative power, it will apply a “clear statement rule.” That is, unless the voters clearly intend to limit the initiative power, the court will not find that they did.

There is a strong case for this clear statement rule.

The dissent cogently asks what the majority’s basis is for applying a clear statement rule and making it a rule for future cases.[4] After all, a judicially crafted clear statement rule hamstrings a legislative body and hands power to judges to decide what is “clear enough.” A clear statement rule is particularly troublesome to the extent the drafters of legislation did not know their work would be evaluated on that standard.

The majority’s response is that a presumption in favor of the initiative power is not new. In 1991 the court applied that principle in a case involving Article XIII A, section 3 (added by Proposition 13), which at the time provided that “any changes in State taxes enacted for the purpose of increasing revenues . . . must be imposed by an Act passed by not less than two-thirds of all members elected to each of the two houses of the Legislature . . . .”[5] The court applied the presumption and found it did not apply to the electorate.

Only five years later, Proposition 218 aimed to clarify the interpretation of another section in the same article: Article XIII A, section 4 (added by Proposition 13), which reads: “Cities, Counties and special districts, by a two-thirds vote of the qualified electors of such district, may impose special taxes on such district, except ad valorem taxes on real property or a transaction tax or sales tax on the sale of real property within such City, County or special district.” It should be unsurprising that the court again applied the presumption in favor of the initiative in interpreting Proposition 218’s clarification of Article XIII A, section 4. In this context it is especially apt to charge the proponents[6] with knowledge of the law,[7] including knowledge of this presumption.

But this argument only goes so far if a presumption in favor of the initiative power is misguided. Consider the U.S. Supreme Court’s widely-criticized federal preemption clear statement rule. That rule is a restriction on federal power, imposed on federalism grounds. If Congress does not clearly preempt a state law, then the state law stands. Yet there is a good argument that after the Fourteenth Amendment’s adoption there is no good ground for tipping the scale in favor of state versus federal power. Another criticism is that federalism values, appealing as they are, should not receive special judicial solace at the cost of protecting individual rights, as often ends up being the case.[8] The fact that the federal clear statement rule is long established and fairly applied is no response to such points.

We considered whether a deeper justification exists for a presumption in favor of broadly construing the initiative power as a matter of California constitutional law. We think there is such an argument, as follows.

An initiative constitutional amendment that purported to prevent future electorates from undoing a past act, or otherwise placed substantive limits on the future electorate’s legislative power, would be invalid as a revision. The California electorate’s initiative power is a structural part of the state’s constitutional system. California’s constitution can be changed, of course, but structural changes are labeled “revisions” and revisions cannot be accomplished by means of the ordinary voter initiative. A revision requires a supermajority of the legislature and a majority vote of the electorate.[9] Consider also the fact that the initiative was created via the revision process. How the initiative power got into the constitution is not determinative, but it is suggestive.[10] If altering the state government to add the initiative was a revision, and if the litmus test for a revision is whether it changes the nature of the state government, then reducing or removing the initiative power is also a revision. As an extreme example, if the electorate by initiative constitutional amendment attempted to assume all taxing power, or claimed to renounce any taxing power, either act would be an invalid revision.

Thus, if Proposition 218 significantly impairs the electorate’s right of initiative, then it should be invalid to that extent because the initiative can only be substantively curtailed by a revision. The court has justified this rule on the principle that, although the state constitution is binding on future legislatures and electorates alike, the electorate cannot restrict its own future initiative power through the initiative process.[11] Only the legislature plus the electorate could do that with a revision.[12]

An initiative constitutional amendment that purports to prevent future electorates from undoing a past act, or otherwise placed substantive limits on the future electorate’s legislative power, would also be invalid as a separation of powers violation. Using the example above again, if the electorate by initiative constitutional amendment attempted to assume all taxing power, or claimed to forfeit any taxing power, either act would violate the separation of powers because the initiative is a core electorate legislative power, which cannot be substantively limited or reassigned.[13] The electorate cannot self-harm, just as the legislature cannot over-delegate, reduce, or give away its core powers.[14]

How does one know if a change is structural enough to become a revision, or a material enough impairment? Key questions include: Does it change the frame of government?[15] Does it substantively reduce the electorate’s legislative power?[16] Obviously the electorate (by initiative constitutional amendment) can prescribe substantive and procedural limits on the other branches of California government.[17] But the present electorate cannot by initiative constitutional amendment reduce the amount of legislative power held by the future electorate. This does not mean that the initiative cannot be used to constrain future initiative acts at all. Proposition 13 itself is an example of setting limits on future electorates, and absent any other action the future electorate is indeed constrained by the past electorate’s action. Yet the future state electorate can always use its initiative power to undo the past electorate’s act and change the rules.

Remember that the provision in question here is a restriction placed on the local initiative power by the state electorate. The dissent argued that this fact indicates that Kennedy Wholesale was not really about protecting the initiative power because the state voters could always change the provision.[18] Leaving to one side whether this is the best reading of Kennedy Wholesale (and the majority has a potent counter), we think that this point makes the argument for applying the clear statement rule stronger in this case. As to the state electorate, their initiative power would arguably not have been overly restricted by a two-thirds rule because a majority of the electorate could change the rule. But that is not the case for the local electorate and the local initiative power. The local initiative power is also constitutionally derived.[19] Based on the argument above, it is not at all clear to us if the state electorate could constrain the use of local initiative power absent a constitutional revision. It is at least a very difficult constitutional question. Consequently, it is certainly sensible to apply a clear statement rule to avoid that question. In this context, the clear statement rule functions more like a canon of constitutional avoidance.

We should be clear that the majority opinion did not rely on the argument we just outlined in its defense of the clear statement rule, although we believe that it did gesture to it at various points in its opinion, most particularly when the court explained that: “As Ulysses once tied himself to the mast so he could resist the Sirens’ tempting song (Homer, The Odyssey, Book XII), voters too can conceivably make the clear and important choice to bind themselves by making it more difficult to enact initiatives in the future.[20] We added the italics to the “conceivably,” and we think this comment shows that the court sees that self-binding in this way poses a hard question.

The Elephant in the Room

This case is about California constitution Article XIII C, section 2(b). The celebrity of the case has to do with section 2(d), which reads: “No local government may impose, extend, or increase any special tax unless and until that tax is submitted to the electorate and approved by a two-thirds vote. A special tax shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so approved.”

The language concerning the election rules construed in this decision (“No local government may impose, extend, or increase any general tax unless . . .”) is identical to the language concerning the required supermajority for special tax measures (“No local government may impose, extend, or increase any special tax unless…”). This strongly suggests that the local voters can, by initiative, increase special taxes by a simple majority because the supermajority limitation does not apply to initiatives any more than the general election requirement applies to initiatives.

The majority does not comment on this implication, which is appropriate, as that issue was not before the court. Perhaps some grounds for distinction between the two provisions might be found. Indeed, there is language in the majority opinion that suggests it thinks there might be such a distinction. The court says:

That the voters explicitly imposed a procedural two-thirds vote requirement on themselves in article XIII C, section 2, subdivision (d) is evidence that they did not implicitly impose a procedural timing requirement in subdivision (b).[21]

This language can be read to suggest that there is some difference between the election timing provision and the vote threshold provision. We do not actually think that this is what this passage means. Instead, it is part of an argument in favor of the majority’s interpretation of section 2(b) and the (minor) point the majority is making is that the electorate knows how to refer to itself.[22]

Nevertheless, the implication remains and was brought up by the dissent in a footnote:

The majority opinion contains language that could be read to suggest that article XIII C, section 2(d) should be interpreted differently from section 2(b). (See maj. opn., ante, ––– Cal.Rptr.3d at ––––, ––– P.3d at –––– [noting that the enactors of Prop. 218 “explicitly imposed a procedural . . . requirement on themselves in” art. XIII C, § 2(d), which “is evidence that they did not implicitly” do so in § 2(b) ].) I see no basis for construing the two provisions differently. Sections 2(b) and 2(d) are, in all pertinent respects, indistinguishable.[23]

If we are correct that the majority did not wish to introduce a difficult-to-understand distinction in this offhand way, then why did the majority not change the language or in some other way respond to the dissent? Perhaps the majority thought its implication was clear enough and that there had to be some end to the back and forth. Perhaps the majority was not displeased with the implication the tax threshold question was arguably open for the lower courts to consider.


The public response to this decision—both pro and con—suggests that it changes the possibilities of local government finance significantly.[24] Again, the focus has been on the decision’s supposed impact on the voting threshold for special taxes. We are skeptical that the impact would be so great even if this decision does ultimately result in the supermajority rule not applying to special taxes placed on the ballot by the voters themselves.

As a matter of political economy, we do not think there is a reservoir of pent up demand for tax measures. As noted in the post previewing this case, cities and counties can already subject general taxes to a majority vote[25]—along with a non-binding advisory measure on how any revenue collected is to be spent.[26] Thus, it is not clear how important this change will be for cities and counties. School districts, for example, have already been able to fund infrastructure with a 55% voter threshold, assuming certain conditions are met.[27] So we would predict that operational school district taxes passed by majority vote will be the main source of demand for this kind of voter initiative, if it were to be possible.

Even assuming that the court’s reasoning means that the two-thirds threshold does not apply to local special tax initiatives, how this area of the law develops from here is unclear. The initiative power extends to taxation,[28] but it is also the case that the initiative power is generally interpreted to be as broad as the legislative power of the underlying local government.[29] Charter cities have the inherent power to tax and therefore, presumably, their citizens have that right as well.[30] But general law cities and counties do not have the inherent power to tax.[31] Does that mean the legislature must explicitly permit local tax initiatives in these governments?[32] School districts have no initiative power at all—at least not granted by the constitution.[33] Thus, if school districts wanted to use this ruling, must the legislature grant the school district electorates the power to impose taxes by initiative? These are hard questions.[34] We note them here not to answer them, but to indicate that many thorny legal and political questions remain whatever this decision’s applicability to the tax threshold provision.


The majority describes the conflict in this case as between two constitutional provisions: sections 8 and 11 of article II (the initiative power), and article XIII C (limiting local governments’ ability to impose, extend, or increase general taxes). Because the latter provision was created by the former, we think that the court found that this is not a clash of two equally-matched California constitutional doctrines. Thus, in keeping with its past practice and sound doctrinal considerations, the electorate’s initiative power prevailed.

[1] For further description of the case see:

[2] Cal. Const., art. XIIIC § 2:

(b) No local government may impose, extend, or increase any general tax unless and until that tax is submitted to the electorate and approved by a majority vote. A general tax shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so approved. The election required by this subdivision shall be consolidated with a regularly scheduled general election for members of the governing body of the local government, except in cases of emergency declared by a unanimous vote of the governing body.

(c) Any general tax imposed, extended, or increased, without voter approval, by any local government on or after January 1, 1995, and prior to the effective date of this article, shall continue to be imposed only if approved by a majority vote of the voters voting in an election on the issue of the imposition, which election shall be held within two years of the effective date of this article and in compliance with subdivision (b).

(d) No local government may impose, extend, or increase any special tax unless and until that tax is submitted to the electorate and approved by a two-thirds vote. A special tax shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so approved.

[3] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *12: “Our analysis in those decisions consistently begins with the presumption that the initiative power is not constrained, then searches for clear evidence suggesting that electors could reasonably be understood to have imposed restrictions upon their constitutional power.”

[4] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *18.

[5] Kennedy Wholesale, Inc. v. State Bd. of Equalization, (1991) 806 P.2d 1360.

[6] The Howard Jarvis Taxpayer’s Association sponsored both Propositions 13 and 218.

[7] See, e.g., In re Harris, (Cal. 1989) 775 P.2d 1057, 1060 (“[T]he voters who enact [an initiative] may be deemed to be aware of the judicial construction of the law that served as its source.”).

[8] See, e.g., Eskridge & Frickey, Quasi-Constitutional Law: Clear Statement Rules As

Constitutional Lawmaking, (1992) 45 Vand. L. Rev. 593, 643-44.

[9] Or a constitutional convention. Cal. Const. art. XVIII, § 2.

[10] See Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, (Cal. 1978) 583 P.2d 1281, 1285 (“We think it significant that prior to 1962 a constitutional revision could be accomplished Only by the elaborate procedure of the convening of, and action by, a constitutional convention (art. XVIII, s 2). This fact suggests that the term ‘revision’ in section XVIII originally was intended to refer to a substantial alteration of the entire Constitution, rather than to a less extensive change in one or more of its provisions.”).

[11] Rossi v. Brown, (Cal. 1995) 889 P.2d 557, 574. (“[T]hrough exercise of the initiative power the people may bind future legislative bodies other than the people themselves”). See also Cty. of Los Angeles v. State, (Cal. 1987) 729 P.2d 202, 209 n.9 (“Whether a constitutional provision which requires a supermajority vote to enact substantive legislation, as opposed to funding the program, may be validly enacted as a Constitutional amendment rather than through revision of the Constitution is an open question.”).

[12] Cal. Const., art. XVIII, § 1, 4; 68 Hastings L. J. 731, 744.

[13] Amador Valley Joint Union High Sch. Dist., (Cal. 1978) 583 P.2d 1281, 1286 (posing as a hypothetical example of an invalid revision an initiative constitutional amendment vesting all judicial power in legislature). For an explanation of the idea that a separation of powers analysis applies to electorate legislative acts, See Carrillo, Duvernay, & Stracener, California Constitutional Law: Popular Sovereignty (2017) 68 Hastings L. J. 731.

[14] For background on the unique features of the California separation of powers doctrine, See Carrillo & Chou, California Constitutional Law: Separation of Powers (2011) 45 USF.L.Rev. 655.

[15] Professional Engineers in California Government v. Kempton, (Cal. 2007) 155 P.3d 226, 245; Amador Valley Joint Union High Sch. Dist., 583 P.2d at 1286 (does the measure “accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision”).

[16] 68 Hastings L. J. 731, 745–46.

[17] Rossi, 889 P.2d at 574; 68 Hastings L. J. 731, 744 and 753.

[18] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *19.

[19] Cal. Const, art. II, § 11(a): “Initiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide. Except as provided in subdivisions (b) and (c), this section does not affect a city having a charter.”

[20] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *1.

[21] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *10.

[22] The opening sentence of the paragraph says as much: “Indeed, as we observed in Kennedy Wholesale, 53 Cal.3d at page 252, 279 Cal.Rptr. 325, 806 P.2d 1360, when an initiative’s intended purpose includes imposing requirements on voters, evidence of such a purpose is clear.”

[23] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *18 n.7.

[24] See, e.g., (“The ruling ‘isn’t just a small crack in the protections that voters across the state have relied on—it is a sledgehammer,’ said [Assembly Member] Baker at a press conference.”). And, in fact, Republican members of the Assembly have introduced a constitutional amendment (ACA 19) to overturn the holding of this case.

[25] Cal. Const. art. XIIIA, § 2(b).

[26] Coleman v. County of Santa Clara, (1998) 64 Cal.App.4th 662.

[27] Cal. Const. art. XIIIA, § 1(b)(3).

[28] Rossi, 889 P.2d at 563.

[29] DeVita v. Cty. of Napa, (1995) 9 Cal.4th 763, 775.

[30] California Fed. Savings & Loan Assn. v. Los Angeles, (1991) 54 Cal.3d 1.

[31] Santa Clara County Local Transportation Authority v. Guardino, (1995) 11 Cal.4th 220, 247-48.

[32] Before one assumes the answer is yes, it must be remembered that, as the majority in this case explained, “we have held that the people’s power to propose and adopt initiatives is at least as broad as the legislative power wielded by the Legislature and local governments.” California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *4 (citing cases). If the initiative power is broader, then perhaps explicit permission to place a tax measure on the ballot by initiative is not necessary.

[33] But, again, perhaps the power of initiative is so broad that this power could be found to have been reserved by the people it being explicitly granted to the electorate of a school district.

[34] Another twist. Proposition 62, approved by the voters in 1986, placed limits on local government taxing power very similar to that of Proposition 218 into California statutory law. See, e.g., Cal. Gov’t Code § 53722 (“No local government or district may impose any special tax unless and until such special tax is submitted to the electorate of the local government, or district and approved by a two-thirds vote of the voters voting in an election on the issue.”). The Legislature cannot simply repeal a statute passed by initiative. See Cal Const. art. II, § 10(c); Cal. Gov’t Code § 53729. Presumably Proposition 62 does not bar local tax initiatives any more than Proposition 218 does, but this is another issue that will need to be litigated.

October 13, 2017

Professor Soucek Files Brief in Supreme Court Sexual Orientation Discrimination Case

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

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

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

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

October 10, 2017

Of Steak Rubs and Symmetry: A Response to Justice Gorsuch

By Chris Elmendorf and Eric McGhee

[Cross-posted from Election Law Blog.]

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

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

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

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

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

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

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

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

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

October 4, 2017

Argument analysis: Justices seem primed to find constitutional limits on the detention of immigrants

By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

Yesterday, the Supreme Court heard reargument in Jennings v. Rodriguez, a class-action constitutional challenge to a variety of provisions of the immigration laws allowing for immigrant detention. After the oral argument last term, the court asked for further briefing on the constitutionality of the detention of immigrants. With the Trump administration promising to increase the use of detention as a form of immigration enforcement, the case has taken on increasing practical significance since the court first decided to review the case in June of 2016.

As discussed in my preview of the argument, two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because "to permit[] indefinite detention of an alien would cause a serious constitutional problem." Just two years later, the court in Demore v.Kim invoked the "plenary power" doctrine - something exceptional to immigration law and inconsistent with modern constitutional law - to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.

During the oral argument last term, the justices focused on two very different aspects of the case. On the one hand, as even the government seemed to concede, indefinite detention without a hearing is difficult to justify as a matter of constitutional law. At the same time, however, some justices worried that the U.S. Court of Appeals for the 9th Circuit had acted more like a legislature than a court in fashioning an injunction requiring bond hearings every six months. The reargument yesterday focused on similar questions, although several justices expressed alarm at the U.S. government's claim that indefinite detention of immigrants is constitutional.

Deputy Solicitor General Malcom Stewart began for the United States by "stress[ing] the breadth of Congress's constitutional authority to establish the rules under which aliens will be allowed to enter and remain in the United States." Focusing first on noncitizens seeking to enter the U.S., he characterized the respondents' claim as seeking "a constitutional right to be released into this country" during the pendency of their removal proceedings.

Justice Ruth Bader Ginsburg quickly took a poke at the government's case, noting that someone with a credible fear of persecution who is applying for asylum might be able to gain parole into the United States. Justice Sonia Sotomayor got to the crux of the case in short order: "[W]hat other area of law have we permitted a government agent on his or her own, without a neutral party looking at that decision, to detain someone indefinitely?"

Stewart had no response except to say, paraphrasing language in the Cold War case United States ex rel. Knauff v. Shaughnessy, that for "aliens arriving at our shores ... , whatever Congress chooses to give is due process." Sotomayor's incredulous response was blunt: "[T]hat's lawlessness."

Rejecting Stewart's claim that the only alternatives for arriving immigrants are detention or release, Ginsburg pointed out that "there is something in between," and that monitoring devices could be used to keep track of an immigrant released on bond. In response, Stewart invoked Demore v. Kim, and said that due process does not require Congress to use the least restrictive means with respect to detention of immigrants.

Justice Stephen Breyer kept Stewart on the ropes by pointing out the oddity of not giving bond hearings to noncitizens when they are given to "triple ax murderers." Justice Elena Kagan seemed to agree that the detention statute should be read to permit a hearing and possible release.

Stewart then returned to defending the plenary-power doctrine and its Constitution-free-zone for noncitizens seeking admission into the United States. In response to a question from Kagan, he admitted that his argument was premised on the claim that people at the border "have no constitutional rights at all." Armed with hypotheticals like the former law professor she is, Kagan asked whether the government could torture arriving immigrants or subject them to forced labor. Stewart agreed that such treatment would be unconstitutional, but then had a hard time explaining why indefinite detention does not also violate the Constitution.

After getting Stewart to agree that "detention violates due process, if there is an unreasonable delay in that detention," Justice Anthony Kennedy asked whether a six-month rule for a hearing, which the 9th Circuit had adopted, might be appropriate. Along similar lines, Kagan suggested that, for immigrants with ties to the country, years in detention would be problematic. Stewart persisted in his position that years of detention without a bond hearing would be permissible. Kennedy seemed troubled by the apparent inconsistency between Stewart's admission that unreasonably prolonged detention could violate due process and his insistence that arriving immigrants lack constitutional rights.

A former Supreme Court advocate, Chief Justice John Roberts asked Stewart pointedly about a statement in the government's supplemental reply brief that 14 months without a hearing would cause constitutional problems, noting that it "sounds close to a concession."

Justice Samuel Alito inquired about the appropriate remedy if there was a constitutional violation, suggesting that rather than adopting a bright-line rule, the court could employ a multi-factored approach like that used in assessing constitutional speedy-trial claims.

Next up was Ahilan Arulanantham of the American Civil Liberties Union of Southern California, who argued the case for the class of immigrants. He stated at the outset that there are limits on the government's power to detain immigrants, which he said were based in longstanding case law. Ginsburg quickly asked about the 9th Circuit's requirement of a bond hearing every six months, noting that criminal defendants receive an initial bail hearing, with no more required under the Constitution.

Kagan seemed to read Demore v. Kim as allowing for detention, but only for a matter of months. Arulanantham explained that the length of detention of the class members was much longer, in part because, unlike the detainee in Demore, they are opposing their removals and seek to remain in the United States. He emphasized that a significant component of the class was seeking cancellation of removal, which allows successful applicants to remain as lawful permanent residents.

Justice Neil Gorsuch raised some jurisdictional questions based on provisions of the immigration statute (8 U.S.C. §§ 1252(b)(9), (f)(1)) that limit the courts' jurisdiction in immigration cases. Arulanantham said that the government concedes that Section (b)(9), which allows for review of a final removal order, does not apply to detention claims, and that the government had waived any jurisdictional objection based on Section (f)(1). Gorsuch seemed satisfied with these explanations.

Returning to Ginsburg's earlier question about the 9th Circuit's requirement that a bond hearing be conducted every six months, Arulanantham defended the rule, noting that "this Court has never authorized detention without a hearing before a neutral decision-maker, outside of national security, beyond six months." Alito pushed back, asking, "Where does it say six months in the Constitution? Why is it six? Why isn't it seven? Why isn't it five? Why isn't it eight?"

Roberts acknowledged that the constitutional concerns increase with the length of a detention, but still asked Arulanatham to justify that specific time limit. Arulanantham responded by citing government statistics showing that 90 percent of all detention cases under mandatory detention finish in less than six months. Roberts wondered whether habeas or other relief might be a possibility. Returning to this question later, Arulanantham offered statistics showing that final adjudication of a habeas petition takes 19 months in the U.S. Court of Appeals for the 11th Circuit and 14 months in the U.S. Court of Appeals for the 3rd Circuit.

Roberts also suggested that some of the immigrants were in detention for lengthier periods because they were preparing their cases. Pushing back, Arulanantham said in effect that an immigrant should not be penalized for seeking relief. He emphasized that the fact that an immigrant is pursuing relief does not make the person a flight risk.

Alito asked why an immediate bond hearing, as is the rule in criminal cases, was not required. Arulanantham noted that the Supreme Court had rejected that possibility in Demore. Late in the argument, Gorsuch asked about a possible remand to the 9th Circuit to decide first on constitutionality. Arulanantham admitted that could be a possibility but asked what would be gained.

As the reargument made clear, this case raises some fascinating constitutional questions, which now are squarely before the court. The justices seemed primed to find constitutional limits on the detention of immigrants. They seemed less troubled than they had been in the first argument by the six-month period for bond hearings established by the 9th Circuit, with the discussion about the reasonableness of the six-month period seeming to assuage their concerns.

Ultimately, this case offers the Supreme Court the opportunity to address the modern vitality of the plenary-power doctrine and finally decide whether, and if so how, the Constitution applies to arriving aliens. We will likely have to wait a few months longer to find out how the justices resolve that issue, which has significant implications in the immigration-law arena.