May 31, 2023

The Ninth Circuit, Racism, and Immigration Law

[Cross-post from ImmigrationProf Blog]

By Kevin R. Johnson

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

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

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

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

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

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

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


May 17, 2023

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

[Cross-post from Daily Journal]

By Kevin R. Johnson


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

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

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

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

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

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

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

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

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

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

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


April 11, 2023

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

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

By Afra Afsharipour and Matthew Jennejohn

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

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

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

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

A Dramatic and Persistent Gender Gap

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

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

The Gender Gap Differs by Law Firm

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

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

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

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

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

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

The Gender Gap Differs by Geography

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

Analyzing Individual Litigators Reveals Personal Networks Dominated by Men

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

Looking Ahead

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

March 30, 2023

The Future of Diversity in Legal Education

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

By Kevin R. Johnson

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

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

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

Student Diversity and Calls for the Teaching of Racial Justice

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

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

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

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

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

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

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

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

Faculty Diversity

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

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

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

Future DEI Challenges

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

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

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

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

DEI Efforts at UC Davis Law

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

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

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

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

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


1.       Cultivate an inclusive atmosphere and sense of belonging;


2.       Support community mental health;


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


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

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


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


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


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


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



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


March 6, 2023

Investment Bankers and Inclusive Corporate Leadership

[Cross-post from The FinReg Blog]

By Afra Afsharipour

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

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

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

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

Investment Banking’s Gender Gap 

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

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

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

The Gender Gap at Elite Boutique Banks 

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

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

The Intersection of Investment Banking Culture and the Gender Gap 

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

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

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

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

The Advisory Role of Investment Bankers & Conflicts of Interest 

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

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

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

Investment Banking’s Effects on the C-Suite 

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

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

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

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

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


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

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

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

February 2, 2023

A Sign of the Times?

[Cross-post from The Daily Journal]

By Kevin R. Johnson

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

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

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

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

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

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

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

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

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

January 27, 2023

MLK and Border Justice

By Raquel E. Aldana, Professor of Law and Co-Director of the Aoki Center on Critical Race and Nation Studies

"We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly." – Dr. Martin Luther King

I write these reflections on January 16, 2023, the day we commemorate Martin Luther King’s (MLK) legacy and imperative for racial justice. I am fortunate to teach at the UC Davis School of Law, named after MLK. King Hall, the name we use to call our school, draws exceptional students, including many who are committed to MLK’s racial justice project. In our Asylum and Refugee Law seminar this semester, we spent last week setting the stage to understand the human tragedy occurring at our U.S.-Mexico border and sadly the numerous parallels of similar stories across the globe. In anticipation of MLK day, I shared with my students a page the United Nations High Commissioner for Refugees (UNHCR) created back in 2021 in which a handful of transcendent refugees – meaning they themselves received harbor and propelled their lives to elevate others—reflected on how MLK inspires their lives. I was struck by the MLK quotes they chose. In addition to quote above, two others caught my attention: “Injustice anywhere is a threat to justice everywhere” and “America is essentially a dream, a dream yet unfulfilled.”

Two themes stand out for me in these quotes about today’s MLK-inspired racial justice imperative. The first is the universality and mutuality of the racial justice imperative. The second, more implied in its focus on the unfulfilled “American” dream, is the recognition that human rights begin at home. At first glance, these two themes may appear to conflict with one another. It could, for instance, mean that the universality and mutuality of the racial justice imperative that MLK espoused was bounded by borders, if only due to the pragmatic recognition of the enormity in the racial justice gaps present in MLK’s “America.” I take issue, however, with this bounded reading of MLK’s vision. Both then and now, “America” – an ironic use of the word that should name the continent and not a single nation within it – was a nation whose struggles for racial justice could not be disentangled from its global reality.

In 2016, the Huffpost wrote a piece titled Martin Luther King and Immigrant’s Rights. The piece discusses the paradox in how both those who promote restrictive borders and those who seek to open or erase them, claim MLK’s legacy as being on their side. The place of border justice – i.e., the treatment of freedom of movement as a fundamental right – as a racial justice project has not always been easy to name. This is, in part, because borders, not unlike prisons, have been used effectively to divide humanity between those who deserve justice and those who, due to their criminality or illegality, do not. The Huffpost piece, for example, recounts MLK’s efforts toward inclusivity when he wrote in a 1966 telegram to Cesar Chavez, the leader of the United Farm Workers (UFW), that our “separate struggles are really one.” Some would suggest that the Cesar Chavez and labor union’s own ambivalence over immigration, solidified a bounded inclusivity that prioritized the well-being of U.S. domestic workers in their search for racial justice. Except this explanation is too simplistic. For one, at the time, the UFW was comprised of a large force of undocumented workers. The problem, thus, was not the undocumented workers themselves but rather the system of laws, policies, and practices, that exploited the vulnerability of workers to create conflicts that directly compromised what should have been a joint project toward greater labor and workers right in this country. Overtime, labor unions would more fully understand the structural racism that permeated labor exploitation and to view borders as a tool for reinforcing such a system.

Today, MLK’s unfulfilled American dream for racial justice continue to weigh heavily on our shoulders. We are confronting an erasure of hard-fought civil rights gains in this country, sight unseen. Affirmative action and voting rights are threatened while racial disparities in income and other outcomes remain the most persistent features of U.S. society. It is understandable why the struggle for racial justice can turn us inward; except, in doing so, we can miss both nuance in analyzing the problem and its solutions or opportunities for global solidarity and action.

Take, for example, the dominant framing of asylum seekers form Mexico or Northern Triangle countries (Guatemala, El Salvador, on Honduras). Many, though certainly not all, are fleeing terrible violence waged against them by gangs or narco-traffickers. When I traveled with a group of King Hall students to Tijuana in March of 2022, I heard horrifying stories that haunt me still today. Yet I knew that even if the border had not been shut due to Title 42, few to none would qualify for asylum, their plight dismissed as privatized violence over which we neither had a moral or legal responsibility. But all we must do is dig a little bit deeper to understand this framing is just wrong. For over five decades, we have waged a similarly tragic, racialized, and failed war on drugs in Latin America that has wreaked havoc to many nation’s institutions and severely damaged their capacity to contain corruption and violence. As well, the transnational roots of gangs began with U.S. policies of mass deportations of gang members to the region without regard to the havoc – both violence and threats to democracy-- it would cause to those countries. Just yesterday, for example, hundreds of Salvadorans took to the streets to commemorate thirty-one years to peace that ended a war that left over 75,000 dead. But they all also protested President Bukele’s authoritarian rule which has, among other worries, led to tens of thousands of arrests and scores of human rights violations against those accused of gang affiliations.   

Despite the above, in recent days, the tenor of the conversation between President Biden and Mexican President López Obrador, with focus on enforcement as a mean to control migration flows, remind me of the dangers of looking only inward when we think of racial justice. President Biden is under extreme domestic pressure to control the border, seemingly at any human cost. Over the years, border policies have contributed to thousands of migrant deaths at the U.S.-Mexico border, with 2022 being the worst year. Domestic calls for tough on immigration control at the border, often a bipartisan project, have deadly consequences. They are also shortsighted. They will not work because they fail to address the root causes of migration, which include externalities from or the exportation of domestic U.S. policies to Latin America whose casualties are the migrants at our Southern border whose suffering we fail to heed.

December 22, 2022

Top Ten Immigration News Stories of 2022

[Cross-post from ImmigrationProf Blog]

By Kevin R. Johnson

2022 has been an exciting year in immigration law and enforcement.  It probably will be most remembered for

(1) the efforts of (and courts' resistance to) the Biden administration to roll back the Trump administration's immigration measures; and

(2) the publicity stunts of the governors of Texas and Florida to show that the Biden administration was not effectively enforcing the immigration laws. 

Here is the ImmigrationProf top 10 news stories for 2022.  By way of comparison, here are the top 10 news stories from 2021.

1.  The Biden Administration Faced Fierce Resistance to Rolling Back Trump Immigration Enforcement Measures.

As a public health measure, President Trump had invoked a public health law, Title 42, to expel migrants seeking to enter the country at the U.S./Mexico border.  The Biden administration sought to lift the Title 42 order.  Some courts and political leaders fiercely resisted the efforts.  The Supreme Court earlier this week stayed an injunction requiring an end of the Title 42 order. 

It was not only conservatives who questioned the lifting of the Title 42 order.  Its termination generated concern among some Democratic Senators.  With the Title 42 order slated to end, some Democrats became nervous.  As Law360 reported, four Democratic senators pressed the U.S. Department of Homeland Security to answer questions about managing the expected increase in migrants crossing the southern border, with a lifting of the Title 42 order.

The intensity of the worries grew after U.S. District Judge Emmet Sullivan invalidated the Title 42 order as "arbitrary and capricious."   Maria Sacchetti and Spencer S. Hsu for the Washington Post reported on the ruling.  The court order and the Biden administration's attempted announcement the the title 42 order would be lifted, sparked controversy. 

Days before the scheduled lifting of the Title 42 order, U.S. Supreme Court Chief Justice John Roberts stayed the court order ordering the end of the Title 42 orderThe bottom line:  the Trump administration's Title 42 expulsion order remains in effect.

DHS Announces the End (Finally) to Remain in Mexico Policy,  A Court Says No Way

Title 42 was not the only area in which the Biden administration's immigration initiatives -- and roll backs on Trump policies -- experienced resistance.  Despite the Supreme Court ruling allowing the Biden administration to dismantle the "Remain in Mexico" policy, which allows the return of asylum-seekers to Mexico while their asylum claims are being decided, the policy remained in place.  The Department of Homeland Security announced that it would phase out the Trump era Migrant Protection Protocols (MPP) program reported Adolfo Flores for BuzzFeed News.  MPP forced thousands of migrants to spend lengthy periods in dangerous conditions in Mexico.  It "has endemic flaws, imposes unjustifiable human costs, and pulls resources and personnel away from other priority efforts to secure our border," noted DHS Secretary Alejandro Mayorkas

The legal roller coaster over President Trump's Remain in Mexico policy continues.  A trip to the Supreme Court did not end the controversy.  Just last week, U.S. District Judge Matthew Kacsmaryk, a Trump appointee, suspended the Biden administration's termination of MPP.

There have been many other challenges to the Biden administration's immigration policies.  The Title 42 and Remain in Mexico battles offer an idea of the magnitude of the resistance and the administration's inability to reverse signature Trumpian immigration measures.

2.  State Governors Protest the Alleged Lack of Federal Immigration Enforcement by Transporting Migrants North

Texas Governor Greg Abbott and Florida Governor Ron DeSantis in 2022 repeatedly engaged in publicity stunts that showed utter disregard for the plight and humanity of migrants who have come to the United States. That included the extraordinary step of busing migrants to New York City, Washington D.C., and Chicago.

Governor DeSantis's transportation of a group of migrants to Martha's Vineyard in Massachusetts, a tourist destination of the rich and famous, attracted the most attention.  See Class Action: Migrants Say Florida Governor DeSantis "Stranded" Them on Martha's Vineyard.  A lawsuit followed Governor DeSantis's Massachusetts adventure.  Law360 reported on the suit by asylum-seekers alleging that they were tricked into boarding flights to Martha's Vineyard -- and left them stranded there -- in violation of their constitutional rights.

Other reports on the Martha's Vineyard spectacle:

Immigrants land on Martha's Vineyard;  Florida Governor takes credit

DeSantis Plays Politics with the Lives of Migrants

In line with the Governor DeSantis playbook, Texas Governor Greg Abbott made federal immigration enforcement a re-election campaign issue.  See Texas Governor Now Busing Migrants to Chicago as well as DC and NYC.

He sent migrants by bus from Texas to Washington, D.C. , New York City, and Chicago.  See Texas Governor Busing of Migrants to NYC and DC Keeps Him in the News.   NPR reported that "New York City Mayor Eric Adams . . . criticiz[ed] Texas Gov. Greg Abbott for sending busloads of migrants to the city, saying that Abbott 'used innocent people as political pawns to manufacture a crisis.'" (bold added).

Governor Abbott took a number of other immigration measures (and here).  They generated controversy but kept Abbott in the news.  

3.  The Supreme Court and Immigration

"Immigration in the Supreme Court, 2021 Term" reviews the Court's immigration decisions of the 2021 Term.  See last year's recap of the 2020 Term. 

The 2021 Term did not include any blockbuster immigration decisions.  Biden v. Texas probably received the most attention.  The decision cleared the way for the Biden administration to dismantle a signature Trump administration immigration enforcement policy, the "Remain in Mexico" policy, which requires asylum seekers to be returned to Mexico while their claims are being decided.  Breaking News: Supreme Court Decides Remain in Mexico Case.    

The Court decided five immigration cases in the 2021 Term, an average number for the Court in recent years.  What is different this Term is that the pro-immigrant position failed in four of the five immigration cases, showing the tilt of the Supreme Court's conservative super-majority.  The Court's immigration decisions include ones requiring careful, but rather routine (if not ponderous), interpretation of the immigration statute as well as more general legal principles.

For reasons having nothing to do with immigration, few will soon forget the 2021 Term in U.S. Supreme Court history.  For weeks, news was dominated by a leaked draft opinion in a blockbuster abortion case, which foreshadowed the overruling of Roe v. Wade (1973) in Dobbs v. Jackson Women's Health Organization.  In addition, controversy surrounded conservative Justice Clarence Thomas's ethical obligations in connection with the Court's consideration of cases in which his wife's political activities were implicated. 

This blog post looked at "The Overruling of Roe v. Wade and Immigrants."  The demise of Roe v. Wade undoubtedly will affect immigrant women -- especially poor ones (and here) -- in the United States   It will take some time to see the full impacts of Dobbs v. Jackson Women's Health.  Many questions will arise about the scope and breadth of the decision.  Will, for example, the federal government continue to provide access to abortions for immigrant women in detention?  Access to an abortion by a detained immigrant teen was the subject of litigation a few years back.  Some women may feel it necessary to travel to Mexico for an abortion.  Can a state bar travel outside the state to do so?  

On the last day of the 2021 Term, Associate Justice Stephen Breyer retired and the first African American woman Justice, Ketanji Brown Jackson, was sworn in to replace him.  During her confirmation hearings, Judge Jackson was quizzed on expedited removal ruling.  Here is a review of the Immigration Record of Judge Ketanji Brown Jackson, President Biden's Supreme Court Nominee.

With the retirement of Justice Stephen Breyer, the Court lost the author of a memorable majority opinion in Zadvydas v. Davis (2001), which reasoned that the prospect of indefinite detention of a noncitizen would raise "serious" constitutional questions.  He wrote "[b]ased on our conclusion that indefinite detention of aliens . . . . would raise serious constitutional concerns, we construe the statute to contain an implicit 'reasonable time' limitation, the application of which is subject to federal-court review."  Contrary to the teachings of the plenary power doctrine, which directs the courts to defer to the immigration judgments of the President and Congress, Justice Breyer did not show special deference to the U.S. government's immigration decision in that instance.  Zadvydas v. Davis has undermined the decision in recent years.

3.  Tragedy in San Antonio. Deaths on the Border Continue

A tragic mass death of migrants being trafficked in a truck/trailer into the United States in San Antonio shocked the nation, reminding us of the deadly consequences of contemporary migration flows.  See Death on the Border Chapter 101:   46 Migrants Reported Dead in Truck/Trailer in San Antonio, Texas.  In a statement on the tragedy, President Biden acknowledged that the event may be "the deadliest people smuggling tragedy in recent U.S. history."

The San Antonio deaths are the tip of the iceberg.  Border deaths are a regular part of U.S./Mexico border life and are an international phenomenon as well.  See IOM Report: More Than 50,000 Migrant Deaths; CNN: A record number of migrants have died crossing the US-Mexico border.

Deaths of migrants along the U.S./Mexico border have made the news for years.  See, for a few examples, hereherehere.  The death toll continues to mount.  Earlier this year, CNN reported that nearly 750 migrants have died at the U.S./Mexico border this fiscal year, a new record, according to Department of Homeland Security figures.  Migrants often face treacherous terrain when crossing the border - including oppressive desert heat, dangerous waters, and falling from the border wall.

4.  President Trump Announces 2024 Run for President

Can you believe it?  Donald Trump announced his 2024 run for President.  On the same day that a federal court found that his administration's extraordinary Title 42 order was arbitrary and capriciousDonald Trump announced that he would again run for PresidentHe made it clear that immigration enforcement would be a major plank in his platform.  President Trump, of course, took the most aggressive enforcement measures of any modern U.S. President.

5.  The World Welcomes Ukrainian Refugees Flee the Russian Invasion

The Russian invasion of Ukraine led to a mass migration of refugees.  European nations embraced them with open arms.  A number of posts on the ImmigrationProf blog (and here) have highlighted the differential treatment of Ukrainian refugees and those from Syria, Afghanistan, and Central America.  Voice of America released a report entitled "Immigration Experts Contrast US Support for Ukrainian, Afghan Refugees."  Here are a few more stories on the treatment of Ukrainian refugees: Ukrainian refugee crisis already ranks among the world's worst in recent history Refugee Double Standard: What the Global Response to Ukrainian Refugees Teaches Welcome for Ukrainians reveals 'hypocrisy' of Irish immigration system? "Fortress Europe" opens for Ukrainian refugees but keeps others out Ukrainian Refugees and Racism

6.  Migrants Flee Chaos in Venezuela

Political and economic turmoil in Venezuela led to a flow of migrants from that South American nation.  See Migrants from Venezuela, Nicaragua and Cuba are driving apprehensions at the U.S./Mexico border; AP -- US officials: Border crossings soar among Venezuelans.

Consistent with other news reports (and here), CNN reported that U.S. government data showed that "[i]n August alone, immigration agents encountered more than 203,000 individuals at the southern border. Migrants from just three countries - Venezuela, Nicaragua and Cuba - made up about 56,000 of those encounters, or about 28 percent . . . ."   The increase in migration from these three nations reduced the share of migrants coming from Mexico and Central America.  

7. Top Trump Advisor Steve Bannon Arrested for Fraud in Connection with Fundraising to Build a Border Wall

At one time a top Trump advisor, Steve Bannon in September surrendered on New York state fraud charges related to fundraising to build the wall along the U.S./Mexico border.  The state charges are based on the same conduct that Bannon was charged with by federal prosecutors in 2020. Then-President Donald Trump pardoned Bannon on the federal fraud charges. Presidential pardons do not apply to state charges.  The prosecution is pending.

8.  10th Anniversary of  DACA

June 15, 2022 marked the 10 year anniversary of the announcement by President Barack Obama of the Deferred Action for Childhood Arrivals (DACA) policy.  DACA was a major immigration milestone of the 21st century and provided limited relief to hundreds of thousands of young noncitizens.

Although the Supreme Court invalidated the Trump administration's attempt to rescind DACA, the Biden administration has met formidable judicial resistance to continuing the policy.  The lower courts have not been friendly to the administration's efforts to revive DACA and litigation continues over the future of DACA.

9.  UK's Policy of Shipping Asylum Seekers to Rwanda Challenged

The following news story did not get the attention in the United States that it deserves.  Kit Johnson blogged about the United Kingdom's extraordinary decision to ship asylum seekers to Rwanda.  Yes, Rwanda.  Click here for an Associated Press discussing how the policy operates.  The controversy over the policy continues.  Rwanda, really?

10.  The Holy Grail?  Immigration Reform.  Forget About It.

Congress discussed at various times the possibility of long-awaited immigration reform.  A possible proposal briefly made the news as the lame duck Congress moved toward the end of 2022.  See Is There a Possibility for Bipartisan (and Limited) Immigration Reform?

The recent chatter about the possibility of bipartisan immigration reform has dissipated.  Senators Kyrsten Sinema, who recently left the Democratic Party to become an Independent from Arizona, and Thom Tillis (R-NC), floated a framework for immigration reform.  It would have provided legal status for young undocumented immigrants and appropriations for additional border security.  To this point, reform has not come.  Forget about it.


1.  UC Hastings Law Center on Race, Immigration, Citizenship, and Equality

ImmigrationProf blogger and Professor Ming Hsu Chen this fall launched a center at UC Hastings that will pursue research on equality issues and collaborate with other scholars and academic institutions.  Chen previously founded the Immigration and Citizenship Law Program at the University of Colorado.

The Center on Race, Immigration, Citizenship, and Equality (RICE) will offer lectures, conferences, panel discussions, research projects, student employment opportunities, and law classes with fieldwork components. It will promote scholarly engagement and forge links between other centers at UC Hastings, including the Center for Gender and Refugee Studies and the Center for Racial and Economic Justice.

2.  Passing of Immigration Law Professors

Legal academia in 2022 lost two wonderful and influential immigration law professors.

Funeral Services for Professor Michael OIivasRIP Michael Olivas Immigration Scholar

We lost an influential immigration scholar Professor Michael Olivas.  He had been honored in 2010 as this blog's Immigration Professor of the Year.  Professor Olivas was an influential immigration law scholar and a leading figure in legal education.  One strand of Professor Olivas's vast body of scholarship focused on issues at the intersection of immigration and Latina/o civil rights.  He also was a wonderful immigration colleague and organized the inaugural Immigration Law Teachers workshop in New Mexico in 1992.

RIP Professor Anna Shavers, Friend and Colleague

We also lost another wonderful person and influential immigration law professor, Anna W. Shavers, Cline Willliams Professor of Citizenship Law and associate dean for diversity and inclusion at the University of Nebraska College of Law.  She was simply the most decent person one could ever want to meet.  And she was an important immigration scholar.  Here is the University of Nebraska's statement on Professor Shavers's passing.

3.  Welcome Austin Kocher, New ImmigrationProf Blogger

In January, the ImmigrationProf blog announced the addition of blogger Austin Kocher, Research Associate Professor for the Transactional Records Access Clearinghouse.  Check out his profile.  TRAC is a research institute that uses Freedom of Information Act requests to study the federal government.  

Sports Page

Immigrants made the sports pages in 2022.  Here are a few headlines:

1.  Immigrants and the World Cup  

Argentina beat France in the finals on penalty kicks and took home the World Cup.  Migrant labor, with abuses reported, made the World Cup possible in Qatar.  Some may be surprised that many of the soccer players were not born in the country that they represented in the competition.      

2.  Game, set, match:  Novak Djokovic loses visa appeal, leaves country ahead of Australian Open

Last January, the saga of professional tennis champion Novak Djokovi seeking to defend his title in the Australian Open finally came to an end.  CNN reported that "[i]n a statement released after his appeal was dismissed, Djokovic said he would cooperate with authorities in arranging his departure from the country and confirmed he would not be playing in the Australian Open."  According to CNN, "Judge James Allsop said earlier that the court's ruling to uphold the immigration minister's decision to revoke Djokovic's visa was unanimous."

3.  Boston Celtic Changes Name to Freedom, calls becoming U.S. citizen "unforgettable"

At the very end of 2021, a National Basketball Association Boston Celtics player changed his name from Enes Kanter to Enes Kanter Freedom in celebration of becoming a U.S. citizen.  He said that taking the citizenship oath was "maybe the most unforgettable moment that I had in my life." An immigrant from Turkey, Freedom has been an outspoken critic of President Recep Tayyip Erdoğan and the Turkish government.  NPR interviewed Freedom about why he changed his name and his support for a boycott of the Olympics in China.

Society Page

An immigrant with expensive tastes, a propensity for con jobs, and the subject of a hit Netflix series, faced removal from the United States.  See Inside fake German heiress Anna Sorokin's immigration battle.

 The immigration case of Anna Sorokin, whose elaborate fraud captured the world's imagination, continues.  The subject of the hit Netflix series "Inventing Anna", Sorokin served about four years in prison after found guilty of criminal charges. She had claimed to be a German heiress named Anna Delvey who had a $60 million inheritance and was raising funds to launch a Manhattan social club. Sorokin swindled hundreds of thousands of dollars from friends, banks and New York City luxury hotels to fund a lavish lifestyle.

August 15, 2022

San Francisco is About to Change Dramatically -- Whether it Wants to or Not

[Cross-posted from the San Francisco Chronicle]

By Christopher Elmendorf

If anything defines the spirit of San Francisco, it’s the idea of doing things our own way. Immigrants, hippies, financiers, technologists, the LGBTQ community: Generation after generation, people with a vision for doing something differently and better, or simply for being different, have alighted here.

Doing things your own way can be great; our city has often been a haven for compassion and acceptance. But not always — and there’s nowhere we see that more profoundly than with land use.


San Francisco stands alone in making every permit for a land-use change subject to discretionary review. This means that anyone who doesn’t like a project can demand a hearing, and city officials may reject the project for any reason, regardless of applicable standards. And only San Francisco would be so bold as to post a self-study acknowledging its noncompliance with state permitting law — and then do nothing about it for the next two decades. And what other city would respond to a state mandate to plan for 10,000 new homes a year from 2023-2030 by submitting a plan for 5,000 homes a year by 2050?


The results indict the San Francisco way:


Our city has the second highest rents in the nation. Housing production has nearly ground to a halt. We have been so determined to “capture value” from new development — with impact fees, affordable housing requirements, costly building standards, labor mandates and more — that virtually all potential housing projects in the city have become economically infeasible to build. An investor who buys a dilapidated single-family home or warehouse in San Francisco can make a lot more money flipping it or selling it to Amazon than redeveloping the site for apartments. The city’s own studies point this out.


Thus, we have homeless encampments, innovative firms disembarking for cheaper markets, rents that only the fattest-salaried professionals can afford, gentrification of working-class neighborhoods, the displacement of the city’s African American population and an underclass of super-commuting service workers who make grueling daily drives from the Central Valley.


But this week marks a turning point.


On Monday, Gov. Gavin Newsom’s Department of Housing and Community Development released a devastating review of San Francisco’s draft “housing element” — a required 8-year plan through which cities show how they’ll accommodate their share of regionally needed housing. As a consequence, San Francisco will be subject to the state’s very first housing policy review, “aimed at identifying and removing barriers to approval and construction of new housing.”


What happens if San Francisco doesn’t get its act together?


For starters, the state will decertify the city’s housing element, which would cut off various streams of state funding, including for affordable housing. More dramatically, it would empower a “builder’s remedy” under state law that would allow developers of affordable and moderate-income housing to bypass city zoning codes. There are unresolved questions about how this will work in practice, but a San Francisco without an approved housing plan could be San Francisco in which new apartments are allowed to pop up helter-skelter throughout the city. Ultimately, courts could rewrite the city’s master plan for housing, exercising judicial authority conferred by a bill signed into law that City Attorney David Chiu authored when he served in the Legislature.


If city officials want to avoid this fate, a few things are now reasonably clear. First, San Francisco has just two years to come into compliance with state permitting law. This will require serious changes to standard operating procedures at the planning and building departments.


Second, any approved housing element will be an ongoing contract with the state, one with clear performance benchmarks and pre-specified consequences if the city comes up short.


Here’s an example: The city’s draft housing element tried to minimize the need for upzoning and regulatory reform by forecasting that the “pipeline” of already-proposed-but-not-fully-permitted-or-built projects will gush an unprecedented fountain of new homes — roughly doubling the city’s annual rate of housing production. This comes at a time when developers are abandoning projects left and right. Moreover, UC Berkeley data scientist David Broockman ran the numbers and found that San Francisco’s pipeline guesstimate vastly exceeds historical yields.


The state housing department’s review letter rightly asks what evidence supports the city’s magical projection. But more importantly, it told San Francisco to put a circuit breaker in its housing element, so that if the pipeline’s flow falls short of projections, the city will allow (for example) larger buildings to be developed citywide. A circuit breaker won’t work, however, if it merely triggers years of exhaustive environmental study followed by a vote on rezoning. San Francisco needs to decide now what the circuit breaker will do and allow it to operate on autopilot.


Third, the review letter hones in on the cumulative effect of San Francisco’s zoning, permitting, fees and all the other requirements the city heaps on new development. San Francisco won’t be able to get its housing element approved unless it realistically commits to making 80,000 new homes economically feasible to develop over the next eight years.


San Francisco can go its own way in deciding which regulatory requirements to roll back first. Should it be impact fees for public art or affordable housing mandates? But the bottom line must be a regulatory environment in which building new apartments and condos is more appealing than flipping existing single-family homes.


San Francisco will remain a special place. No one wants to change that. We will continue to be inventive, wacky, dreamy, different. But many more people will be able to share in it and call our city home. Thanks in advance, governor.

August 15, 2022

John Fetterman is Running a Test that Democrats Need to Watch

[Cross-posted from Politico]

By Lisa R. Pruitt

It’s no secret that Democrats have a rural problem. The party’s share of the rural vote had been shrinking for decades even before Donald Trump arrived on the scene, deftly tapping into rural and working-class discontent and dragging levels of Democratic support to new lows in nonmetropolitan places.

Even as Trump’s popularity has waned among some demographics, Democrats have shaved little off the GOP’s rural margins. Indeed, few Democratic campaigns seem to have tried to claw back rural ground, with many candidates appearing simply to cede the rural vote to the MAGA crowd. As most candidates for state-wide office continue to put all their eggs in the urban and suburban voter basket, rural Democratic organizers and operatives from North Carolina to Texas to Arizona to New York complain about state party failures to enhance their rural infrastructure and initiatives.

As a scholar who studies rural people and places, I’ve noticed one Democratic candidate who defies this trend. While consultants and organizers talk about the need for rural talking points and investments in rural newspaper and radio buys, this politician has deployed the most obvious strategy for making inroads with rural voters: He showed up in every county in his state.

Then, he did something really remarkable: He showed up again.

That candidate is John Fetterman, who secured the Democratic nomination for U.S. Senate in Pennsylvania’s May primary with a robust 59 percent of the vote and currently holds the lead in general election polling.

Fetterman lived up to his “Every County, Every Vote” slogan. On a single Saturday in early May, for example, he visited five counties in north-central Pennsylvania, part of the state’s “rural T” — the vast area which form a big “T” on the map between the Philadelphia and Pittsburgh metro areas and north to the New York state line.

Ten days later, in spite of a stroke that hospitalized him just a few days before the primary, Fetterman carried all 67 counties in the Democratic primary. In doing so, Fetterman didn’t just attend to the rural, he attended to what he often called the “ruby red” parts of the Keystone State. Trump carried all five of the counties Fetterman visited on that day in early May — Clinton, Potter, Tioga, Bradford and Northumberland — and he did so with at least 65 percent of the vote. In Potter County, four of five voters picked Trump. Many Democrats might see those counties as a waste of time, but in the primary, at least, showing up worked for Fetterman: He got 77 percent of the vote.

Fetterman is hardly the first Democratic candidate to make a show of an every-county tour. Indeed, it used to be the norm. When I was growing up in rural Arkansas in the 1970s and 80s, I recall Gov. Bill Clinton passing through my hometown each election cycle. (My family reminisced fondly for years about the day my sister, a teenaged waitress at Pearl’s Café, served Clinton coffee and a slice of pie.) Clinton showed up even though my county was home to a measly 8,000 folks, of whom less than a few thousand voted. It’s just how retail politics was done back in the day.

More recently, Beto O’Rourke conducted a 254-county campaign in 2018 when he ran against Ted Cruz for a U.S. Senate seat from Texas. O’Rourke lost, but by just 3 percent, and he and his running mate for lieutenant governor are now going out of their way to show up in the Lone Star State’s rural reaches. Likewise Chris Jones, Democratic nominee for governor of Arkansas, is on a 75-county tour of the Natural State as he challenges the Republican heir apparent, Sarah Huckabee Sanders.

But Fetterman may be the first candidate in recent memory to have visited each county in his state not once, but twice. When Fetterman became Pennsylvania’s lieutenant governor in 2019, he undertook a 67-county listening tour about cannabis legalization. Columnist Will Bunch of the Philadelphia Inquirer suggests this laid the groundwork for Fetterman’s widespread popularity, observing that when Fetterman returned to each county as a candidate for Senate, “he was shrouded in the purple haze of a political rock star.”

Fetterman’s primary strategy was, of course, the very antithesis of New York Sen. Chuck Schumer’s dismissal of a voting bloc Democrats used to rely on: “For every blue-collar Democrat we lose in western Pennsylvania,” Schumer said, “we will pick up two moderate Republicans in the suburbs in Philadelphia.” That was in the summer of 2016, and the senator was soon proved wrong. Pennsylvania was credited (or blamed, depending on your politics), along with Michigan and Wisconsin, with Hillary Clinton’s loss of the presidency. Trump beat her by about 44,000 votes in 2016 to win Pennsylvania’s 20 Electoral College votes. (Biden, who often referenced his scrappy Scranton roots, recovered in 2020 with a slightly wider margin of victory, 81,000 votes.)

The attention a high-profile candidate like Fetterman has paid to rural areas of his state may begin to ease the rural inferiority complex that’s been festering for decades, as rural economies have stagnated, small towns have lost population and country folks have become the butt of jokes. One 27-year-old woman in Westmoreland County, part of the Pittsburgh metropolitan area that struggles against the “Pennsyltucky” stereotype, praised Fetterman for showing up and speaking bluntly. “We’re not just silly hillbillies,” she told a New York Times reporter.

Fetterman has serious street cred when he speaks about crummy job markets and regional inequalities that bog down many nonmetro communities. Before seeking statewide office, he served for 13 years as mayor of Braddock, a down-and-out city of 1,721 near Pittsburgh. Fetterman has continued to live in Braddock — with his family, in a converted car dealership — even after he was elected lieutenant governor in 2018.

Issues of place — what rural sociologists call uneven development or spatial inequality — have long been front and center for Fetterman, as in his 2018 response to the Ballotpedia survey, “I am most passionate about policies that help our forgotten communities.” Fetterman’s wife, Gisele, struck a similar chord on the night of his primary victory. “This race we’re running, it’s a race … for every small town, for every person who calls those small towns home and for every person who’s considered leaving because they didn’t see enough opportunities.”

Many Pennsylvanians are presumably drawn to Fetterman’s everyman persona. He wears hoodies and gym shorts on the campaign trail, speaks Pennsylvania vernacular including “yinz” and “youse,” and “Stillers” and “Birds.” Even his long-time failure to look after his health — the cause of his stroke — is something many rural voters can relate to as rural hospitals close and health care gets harder to access. That’s on top of the rugged, self-sufficient mindset associated with rural culture that leads many — especially men — to forego medical care.

Fetterman doesn’t try to sound like a Republican. His policy positions are left of center—sometimes pretty far left of center — on everything except fracking, which he supports. He favors criminal justice reform, raising the minimum wage, supporting the LGBTQ community, and legalizing “dreamers.” He’s even in favor of abolishing the filibuster if that’s what it takes to advance a progressive agenda.

When it comes to abortion rights and unions, Fetterman has been known to use the word “sacred,” and he has been particularly vocal since the Supreme Court overturned Roe v. Wade in June. When it comes to unions, even Fetterman’s dogs — with their own Twitter account — have gotten in on the action, expressing excitement about the unionization of Pittsburgh area Starbucks stores:

Given that some of these positions — especially those on social and cultural issues — surely rankle Pennsylvania’s rural moderates, Fetterman’s popularity has probably risen not because of his stances, but rather in spite of them.

It may be that Fetterman’s personal appeal permits him to move the needle on voters’ political stances, pulling them along with his agenda. Fetterman may be to white working-class and rural voters in Pennsylvania what Michigan State Sen. Mallory McMorrow is to suburban moms: the politician whose conviction, leadership and relatability brings others along on progressive positions, e.g., support for LGBTQ youth, that might otherwise give those voters pause, or cause them to balk outright. “If John Fetterman believes it,” they may reason, “I’ll give it some thought. Maybe he’s got a point.”

Whatever happens in the general election, Fetterman’s rural success in the primary raises the question: Why aren’t more Democratic candidates pursuing rural voters like Fetterman has?

Politicians and political consultants offer several excuses. There’s the discomfort candidates, as well as their staff, may feel when going into presumptively hostile territory. Some Democrats assume rural America’s a lost cause, not only because rural folks lean Republican, but also because of an assumption that they are yesterday’s news, with little to contribute to the 21st century economy.

Plus, there’s a widespread assumption that campaigns just don’t get enough bang for their buck in rural places, where door knocking is inefficient because houses are scattered across the countryside rather than clustered along walkable streets. It’s the same urban-centric thinking that keeps all sorts of institutions from investing in rural people and places: a belief you don’t get a high enough return on investment where you can’t achieve economies of scale.

If Fetterman had bought that line of thinking, none of the places he visited on Saturday, May 7 would have been deemed worth his time. None has more than 10,000 residents, and three have populations hovering around just 3,000. All are in nonmetro counties, defined as fewer than 100,000 residents. Wouldn’t Fetterman have been wiser to spend that day in one of the state’s metropolitan areas, where critical masses of voters reside? After all, to make those five stops, Fetterman spent more than five hours driving 245 miles to get from one town to the next. And that doesn’t count the three hours it took him to travel each way from his Braddock home to this part of north central Pennsylvania. How many voters did Fetterman reach on those nonmetro appearances, conventional political wisdom might ask? Did he convert any voters who weren’t already in his camp?

Fetterman apparently wasn’t thinking about it that way. He’s running for state-wide office, which means that there are no gerrymandered districts to fall back on and a rural vote counts as much as an urban or suburban one. By visiting rural areas, the signal Fetterman sent to all rural Pennsylvanians — all “red” Pennsylvanians — is a powerful one. He saw them. He invested his time and energy in them, thus responding to a perennial rural complaint that politicians — and mainstream society generally — forgets or neglects them.

It’s clear that this worked in the primary, and the question is whether that success will carry through to the general election. The truth is that in statewide races, rural voters can provide Democrats a margin of victory even if their town or county is ruby red. This was evident in Terry McAuliffe’s failed campaign for Virginia governor in 2021. McAuliffe didn’t connect with rural voters, and he lost badly in nonmetro counties — the areas referred to as “ROVA,” meaning the “rest of Virginia.” Both the term ROVA — treating rural as remainder after that which really matters — and McAuliffe’s neglect of rural voters suggests an urban dismissiveness of the rural. (He believed he had solidly blue NOVA, or Northern Virginia, stitched up.) It’s an attitude that permitted Glenn Youngkin to gain the governor’s mansion; Youngkin outperformed Trump’s 2020 numbers in rural places, giving him an edge McAuliffe could not overcome when he got less suburban support than he’d anticipated.

Fetterman, similarly, will have to rack up huge margins in Philadelphia and Pittsburgh if he doesn’t chip away at Republican dominance in the hinterlands. It’s even possible that his strategy to cultivate support from across the state may be an added attraction to progressive metro voters; after all, the every-county approach has a unity vibe that may appeal to folks all along the rural-urban continuum.

Indeed, the election outcome could turn on mid-sized metropolitan counties like York (where Fetterman grew up) and Lancaster, where tens of thousands of votes are at stake. Those counties, considered part of the neglected “T” because they’re not Pittsburgh and Philly, were the last two places Fetterman visited before his stroke. More than 64,000 Democratic votes were cast in York and Lancaster counties combined in the primary. That’s more than the margin of Hillary Clinton’s 2016 Pennsylvania loss. Fetterman carried those counties with 80 percent and 76 percent, respectively, of the Democratic vote.

Fetterman still has his work cut out for him, of course. A national survey in February showed that two out of three rural voters view the Democratic Party unfavorably. Fetterman’s opponent, Republican nominee Mehmet Oz (television’s “Dr. Oz”), thus has some ready-made traction in the state’s rural reaches because of the “R” by his name on the ballot. There’s also the matter of Trump’s endorsement of Oz, though Oz has recently been distancing himself from the former president.

With Fetterman still recovering from his stroke, he’s unlikely to get back to each of Pennsylvania’s counties before November. But it probably doesn’t matter. Fetterman has already accumulated critical capital in the “T”, which may be enough to counter the toxic “D” by his name. And his unconventional rural strategy — as much as his unconventional persona — could help give him the “W” in a tight race, one with huge national implications for the balance of the Senate.