August 29, 2014

Top Tips for Authors on Law Review Submissions from UC Davis Law Review Editor-in-Chief

Congratulations to UC Davis Law Review Editor-in-Chief Amar Naik '15 for being cited on the Scholastica Blog.

In an entry titled, "Home Run Law Review Submissions: Tips for Authors," Naik offers excellent advice to legal scholars submitting their work to leading journals.


"For Amar Naik of UC Davis, the early swing packs the hardest hit. 'If you apply too late in the game you might miss out on some of the top journals,' he said. Naik added that authors should refine their manuscripts as much as possible. 'There are some situations where you can’t, because the research season is pretty short for professors and they have other obligations,' he said."

"A common concern along with submission timing is whether authors should tailor the length of their articles to meet journal needs, with moves towards shorter submissions in recent years. Naik said he thinks authors shouldn’t worry about article length when writing submissions. 'The best articles that we see are the ones that have a detailed and rigorous discussion of a topic,' he said. 'If we think an article is well thought out and researched we’re going to consider it, even if it might be shorter or longer than a traditional article.'"

To read the full article, visit the Scholastica Blog.


August 29, 2014

Legal Scholarship Network: Legal Studies Research Paper Series, Vol. 16, No. 4

The law faculty at UC Davis publish truly unique scholarship that advances the profession. Here are some of the latest papers, which can be read by clicking through the links to the Social Science Research Network: Legal Scholarship Network.

"The Emergence of New Corporate Social Responsibility Regimes in China and India" 
UC Davis Business Law Journal, Vol. 14, p. 175 (2014)
UC Davis Legal Studies Research Paper No. 386

AFRA AFSHARIPOUR, University of California, Davis - School of Law
SHRUTI RANA, University of Maryland Francis King Carey School of Law, University of California, Berkeley - School of Law

In an era of financial crises, widening income disparities, and environmental and other calamities linked to corporations, calls for greater corporate social responsibility ("CSR") are increasing rapidly around the world. Though CSR efforts have generally been viewed as voluntary actions undertaken by corporations, a new CSR model is emerging in China and India. In a marked departure from CSR as it is known in the United States and as it has been developing through global norms, China and India are moving towards mandatory, not voluntary, CSR regimes. They are doing so not only in a time of great global economic change, but at a time when both countries are themselves undergoing massive economic and social changes as they re-orient towards more market-based economies and seek to enter the ranks of global economic superpowers.

This Article conducts a comparative analysis of the emerging CSR regimes in China and India and highlights key characteristics of these developing frameworks. This Article begins an inquiry into some of the most significant implications of the CSR regimes now unfolding in China and India, and their potential for effecting legal and societal change. It also raises questions about why China and India are moving towards mandatory CSR when other key global players are taking a largely voluntary approach. Finally, this Article seeks to add to global debates over corporate governance models by enhancing understanding of the corporate governance developments and innovations now arising in China and India.

"Realigning Parties" 
Utah Law Review, Vol. 2014, No. 1, 2014
UC Davis Legal Studies Research Paper No. 289

DEBRA LYN BASSETT, Southwestern Law School
REX PERSCHBACHER, University of California, Davis - School of Law

The doctrine of realignment -- which permits a federal court to change a party's litigating position from plaintiff to defendant or vice versa -- has been virtually ignored in federal procedure scholarship. This stark neglect is genuinely astonishing because the federal circuit courts are split as to the appropriate standard. The source of the standard -- and the circuit courts' confusion -- is a 1941 U.S. Supreme Court decision, City of Indianapolis v. Chase National Bank. In that decision, rather than focusing on realignment's purpose, the Supreme Court focused unduly on the specific context in which the realignment issue arose. The result was a muddled articulation of the appropriate standard.

Realignment's purpose lies in assuring the necessary adversarial context mandated by Article III's references to "cases" and "controversies" -- but City of Indianapolis makes no mention of the case-or-controversy requirement in either the majority or dissenting opinions. Instead, the Court erroneously and confusingly defined its analysis within the specific diversity-jurisdiction context in which the realignment issue arose. This analytical error resulted in a perplexing and misguided standard and contributed to the common misperception that the doctrine of realignment is only applicable to diversity cases.

Had the City of Indianapolis Court properly analyzed the realignment doctrine according to its purpose, its analysis would have mirrored that in declaratory judgment cases. An identical concern underlies both the doctrine of realignment and declaratory judgment actions -- i.e., ensuring the existence of a case or controversy -- and therefore the same standard should apply in the realignment context: whether there is a substantial controversy between parties having adverse legal interests.

"Free Speech in Unfree Countries" 
UC Davis Legal Studies Research Paper No. 393

ASHUTOSH AVINASH BHAGWAT, University of California, Davis - School of Law

In the United States, First Amendment protections for free speech are deeply associated with democracy. The dominant view in the Supreme Court and among commentators is that the primary (albeit not necessarily the only) reason we protect free speech is because of its essential role in advancing democratic self-governance. What are the implications of the democratic self-governance theory for free-speech protections outside the United States, in particular in nondemocratic countries? If we assume that the role of free speech is to advance democratic politics, then presumably non-democratic countries would have no reason to protect or tolerate speech. After all, if one rejects western-style liberal democracy, presumably one also rejects the subsidiary rules that undergird that system of government. The truth, however, is more complex. First of all, the vast majority of constitutions in the world grant at least some level of written protection for free speech, even though many of these constitutions are in countries which do not even purport to be free, multiparty democracies. Of course, many of these constitutional protections are shams; but it is simply not the case that no autocratic regimes permit free speech. The purpose of this paper is to explore how and why that might be so, and to consider whether the answers to these questions might have implications for domestic law.

I begin by surveying the scope of global protections for free speech in written constitutions, and then examining in some detail three case studies of autocratic countries which have provided a degree of room for free speech: modern Communist China, the Soviet Union during the Glasnost era under Mikhail Gorbachev, and modern Qatar. In each case, I demonstrate that the regime provides meaningful protections for free speech, albeit with clear limits. I also argue that in each of these cases, the leadership has absolutely no interest in advancing democracy or surrendering their monopoly on power. Yet even without democracy, they perceive that permitting some degree of free speech advances their interests and the interests of their citizens and nations.

Based on my case studies, I identify three distinct reasons why autocratic leaders might have an interest in permitting some freedom of speech by citizens. The first, and most significant, is internal control. In any large, bureaucratic system, central leadership often faces great difficulty in getting local officials to advance central policies and follow central leadership. Citizens can play an important role in identifying, and publicizing, corruption and lawlessness, as well as violations of central policy, at the local level. Second, free speech can act as a safety valve. Permitting some degree of free speech can, therefore, alleviate pressures for political change. Third, free speech as a form of citizen participation in government can lend legitimacy to a government, even without the legitimacy conferred by popular consent through elections. I also explore the countervailing factors - notably the desire for rulers to maintain their power - which result in clear limits on what sorts of speech will be tolerated in autocracies.

I close by considering whether these alternative justifications for protecting free speech have any implications for speech within the United States. I argue they do, for this reason: even though our system of government is at its base democratic, actual citizen interactions with the government often are not experienced this way. This means that in addition to protecting democratic government, free speech also plays some of the same roles in the U.S. as in autocracies: permitting oversight over the bureaucracy, providing a safety valve, and granting legitimacy to high officials. I close by considering some doctrinal implications of this insight.

"In Partial Defense of Probate: Evidence from Alameda County, California" 
Georgetown Law Journal, February 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 390

DAVID HORTON, University of California, Davis - School of Law

For five decades, probate - the court-supervised administration of decedents' estates - has been condemned as unnecessary, slow, expensive, and intrusive. This backlash has transformed succession in the U.S., as probate avoidance has become a booming industry and contract-like devices such as life insurance, transfer-on-death accounts, and revocable trusts have become the primary engines of intergenerational wealth transmission. Despite this hunger to privatize the inheritance process, we know very little about what happens in contemporary probate court. This Article improves our understanding of this issue by surveying every estate administration stemming from individuals who died in Alameda County, California in 2007. This original dataset of 668 cases challenges some of the most entrenched beliefs about probate. For one, although succession is widely seen as a tranquil process in which beneficiaries settle disputes amicably and pay a decedent's debts voluntarily, both litigation and creditor's claims are common. In addition, attorneys' and personal representatives' fees are far lower than assumed. The Article then uses these insights to critique the demand for probate avoidance, to contend that probate's cautious approach to creditors should also govern non-probate transfers, and to suggest reforms to the probate process.

"Should the Mortgage Follow the Note?" 
Ohio State Law Journal, Vol. 75, No. 1, 2014
UC Davis Legal Studies Research Paper No. 392

JOHN P. HUNT, University of California, Davis - School of Law

The law of mortgage assignment has taken center stage amidst foreclosure crisis, robosigning scandal, and controversy over the Mortgage Electronic Registration System. Yet a concept crucially important to mortgage assignment law, the idea that "the mortgage follows the note," apparently has never been subjected to a critical analysis in a law review.

This Article makes two claims about that proposition, one positive and one normative. The positive claim is that it has been much less clear than typically assumed that the mortgage follows the note, in the sense that note transfer formalities trump mortgage transfer formalities. "The mortgage follows the note" is often described as a well-established principle of law, when in fact considerable doubt has attended the proposition at least since the middle of the last century.

The normative claim is that it is not clear that the mortgage should follow the note. The Article draws on the theoretical literature of filing and recording to show that there is a case that mortgage assignments should be subject to a filing rule and that "the mortgage follows the note," to the extent it implies that transferee interests should be protected without filing, should be abandoned.

Whether mortgage recording should in fact be abandoned in favor of the principle "the mortgage follows the note" turns on the resolution of a number of empirical questions. This Article identifies key empirical questions that emerge from its application of principles from the theoretical literature on filing and recording to the specific case of mortgages.

"Distinguishing Lay from Expert Opinion: The Need to Focus on the Epistemological Differences between the Reasoning Processes Used by Lay and Expert Witnesses" 
Southern Methodist University Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 385

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law

Justice Holmes once remarked that the law is constantly drawing lines. That remark certainly holds true in Evidence law. On a daily basis trial judges must distinguish between character and noncharacter uses of evidence and differentiate hearsay from nonhearsay theories of logical relevance. The topic of the enclosed article is another evidentiary distinction: that between lay opinions and expert opinions.

That distinction has assumed tremendous importance since 1993. In that year, Federal Rule of Civil Procedure 26 was amended to prescribe mandatory pre-discovery disclosures. One of the most important parts of that scheme is a mandate that the proponent of a testifying expert provide the opposition with a detailed report previewing the expert's opinion. Federal Rule of Criminal Procedure 16 imposes a similar requirement for an expert report. However, there is no requirement under either rule for such a report when the opinion is lay in nature. In the same year, the Supreme Court handed down its celebrated decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Daubert announced a new empirical validation test for the admissibility of scientific testimony. In 1999 in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Court expanded Daubert and held that the proponent of any type of expert testimony must establish objective indicia of the reliability of the testimony. Like the Civil Rule 26 and Criminal Rule 16 amendments, Daubert and Kumho are inapplicable to lay opinion testimony.

These two 1993 developments have created a strong incentive for litigants to characterize their witnesses' opinions as lay rather than expert. If the judge accepts that characterization, there is no need for the litigant to file a Rule 26 report or lay a Daubert foundation. Unfortunately, as Part I of the enclosed article points out, the courts are experiencing difficulty drawing the line between lay and expert opinions. Part I considers several possible bases for distinguishing the two types of opinions that have been proposed in the past. Part I demonstrates that each of those potential bases is unsatisfactory.

Part II argues that in order to properly differentiate between the two types of opinions, the court should focus on the underlying reasoning processes. The essential insight is that in both cases, the witness makes a comparative judgment, comparing a generalization to the case-specific fact or facts being evaluated. However, there are fundamental differences between the reasoning processes employed by lay and expert witnesses. In the case of lay opinions, the witness: derives his or her generalization primarily from personal experience; and must rely on firsthand knowledge to acquire his or her information about the case-specific fact or facts. In sharp contrast, in the case of expert opinions, the witness: may draw on hearsay sources such as lectures and professional literature to derive his or her generalization; and under Federal Rule of Evidence 703, may rely on hypothetical questions and secondhand reports as well as personal knowledge as methods of obtaining information about the case-specific fact or facts.

Part III of the article explains how the courts may use the insights discussed in Part II to both differentiate between the two types of opinion and determine the admissibility of such opinions. To illustrate the utility of this approach, Part III discusses one of the modern battlegrounds, that is, police officers' testimony about alleged code words used by drug traffickers. In many cases, prosecutors have argued that the testimony is mere lay opinion testimony, eliminating the need for either a pretrial expert report or a Daubert foundation at trial. Although the courts have struggled to draw the line in these cases, Part III demonstrates that the courts can draw the line with confidence by employing the analysis proposed in Part II.

"Immigration in the Supreme Court, 2009-13: A New Era of Immigration Law Unexceptionalism" 
Oklahoma Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 388

KEVIN R. JOHNSON, University of California, Davis - School of Law

With appropriate caution necessitated by the lessons of recent history, this Article posits that the Supreme Court's contemporary immigration decisions suggest that the plenary power doctrine, the foundation of immigration exceptionalism, is again headed toward its ultimate demise. To test that thesis, this Article carefully scrutinizes the Supreme Court's immigration decisions, as well as some other actions, such as certiorari denials in significant immigration cases, from 2009 to the present. This period coincides with the first five years of the Obama presidency, which has been a time during which the Executive Branch has seldomly relied on the plenary power doctrine in arguments to the Court.

The review of Supreme Court decisions reveals that, even though the Court now reviews considerably fewer cases than it once did, immigration matters regularly comprise a bread-and-butter part of its docket. Indeed the Court decided five immigration-related merits cases in one Term, an extraordinarily large number for a specialty substantive area of law. The fact that the Court frequently exercises its discretion to accept immigration cases for review suggests that the Justices - like the nation as a whole - consider immigration to be an important, at times contentious, national issue worthy of attention, raising many questions that go to the core of the modern administrative state. In light of the controversy surrounding some of the cases that have come before it, most notably the much-publicized constitutional challenge to Arizona's SB 1070 and state and local efforts to push the federal government to more vigorously enforce the U.S. immigration laws, the Court could hardly help but be aware of that plain and simple truth.

What is perhaps most noteworthy from the review of immigration decisions of the Supreme Court of the last five Terms is that a conservative Court characterized as ideologically driven by some observers consistently has not taken an extreme approach to immigration law and its enforcement. The Roberts Court's body of immigration decisions indeed is firmly and comfortably within the jurisprudential mainstream of its decisions in other areas of substantive law. The Court has applied ordinary, standard, and routine legal doctrines for the most part in ordinary, standard, and routine ways.

Analyzing the body of immigration decisions of the Supreme Court under the leadership of Chief Justice John Roberts in the 2009-13 Terms, this Article concludes that the Court in effect has to a large extent continued to bring U.S. immigration law into the legal mainstream. It has interpreted statutes to avoid constitutional questions and avoided invoking the plenary power doctrine to shield vulnerable statutes from judicial review. Although not yet eliminating the doctrine, the Court has slowly but surely moved away from anything that might reasonably be characterized as immigration exceptionalism. The undeniable trend in the Court's immigration jurisprudence is entirely consistent with its efforts over more than a decade to, whenever possible, interpret the immigration laws to avoid deciding serious constitutional questions, and find creative ways to ensure judicial review of removal orders in the face of stringent congressional restrictions that some might reasonably read as purporting to wholly eliminate judicial review.

In applying the U.S. immigration laws, both conservative and liberal Supreme Court Justices look first to the text of the Immigration and Nationality Act and spend considerable time debating the proper interpretation of the (often complex) statutory provision in question. In addition, the Justices occasionally differ about the application of conventional legal doctrines to immigration cases, but rarely debate whether generally applicable doctrines should apply to immigration cases.

"Law Stretched Thin: Access to Justice in Rural America" 
South Dakota Law Review, Vol. 59, 2014
UC Davis Legal Studies Research Paper No. 391

LISA R. PRUITT, University of California, Davis - School of Law
BRADLEY SHOWMAN, University of California, Davis - School of Law

About two percent of small law practices in the United States are in small towns and rural areas, a figure greatly disproportionate to the nearly twenty percent of the population living in those places. This mismatch leaves many rural legal needs unmet. In 2013, responding to the well-documented lawyer shortage in the upper Great Plains, South Dakota became the first state to offer subsidies to lawyers who practice in rural areas through a program called Project Rural Practice.

This article takes the opportunity invited by Project Rural Practice - and this symposium issue about it - to discuss a range of access to justice issues in rural places. Those providing rural legal services face challenges, of course, the most obvious being the struggle for economic viability, along with others generally associated with small firms and solo practice. Rural lawyers also face socio-spatial barriers to professional development and networking opportunities, and the lack of anonymity associated with rural places creates both ethical and economic conflicts of interest. Beyond the challenges facing rural lawyers, we recognize that individuals residing in rural America encounter obstacles to seeking legal services. These obstacles include affordability, confidentiality, and even inability to actually get to courthouses and other legal institutions and actors. Compounding matters, rural denizens are associated with an ethic of law avoidance. Persistently high poverty rates in rural America aggravate the challenge because poor people are less likely to have their legal needs met, wherever they live.

We situate our discussion of rural legal practice within the larger body of access to justice scholarship. While we recognize Project Rural Practice as a strong step in support of rural legal practice, and therefore in support of rural communities, we argue that it should be supplemented by programs aimed at helping those least likely to get the legal assistance they need, especially low-income and other vulnerable populations. We also advocate additional supports for lawyers willing to provide such assistance. Among other issues, we discuss the roles that paralegals, technology, and the broader social-service, non-profit community can play in responding to rural legal needs. We pay particular attention to pro bono publico in the rural context. Lastly, our article includes a modest comparative component, surveying available information about rural lawyering and access to justice in other nations, most notably Canada and Australia.

We conclude that achieving robust access to justice requires the attention and effort of an entire community. Enabling access to justice should include partnerships with a wide array of service providers who can meet non-legal needs while also helping those confronting problems to identify when legal assistance could be of use. Given the dearth of rural lawyers, the surfeit of urban lawyers, and the preference of many attorneys to deliver pro bono services away from their usual practice settings, we also see collaboration among lawyers across and along the rural-urban continuum as critical pieces of the rural access to justice puzzle. We believe not only that these myriad collaborations can help rural residents get the legal assistance they need to solve their most pressing problems, but that the collaborations also hold promise for ameliorating the structural deficits that afflict entire rural communities.

"State-Level Carbon Taxes and the Dormant Commerce Clause: Can Formulary Apportionment Save the World?" 
Chapman Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 387

DARIEN SHANSKE, University of California, Davis - School of Law

This short Article, a contribution to a symposium, outlines some possible design responses to the primary legal issue raised by the implementation of a state-level carbon tax. There are at least two reasons for states to consider a carbon tax. First, somewhat prosaically, the Environmental Protection Agency just released draft rules requiring states to reduce carbon emissions; these rules appear to permit states to achieve at least some of the required reduction through carbon taxes. Second, and more importantly, economists offer strong arguments for preferring carbon taxes as a method of greenhouse gas mitigation. Accordingly, even before the new EPA rules were proposed, a carbon tax was already being considered in some U.S. states, such as Oregon, and a carbon tax is in place in one Canadian province, British Columbia.

The primary legal issue with a state-level tax in the United States is the following: a carbon tax imposed in only one state will presumably make goods and services produced in that state more expensive. The direct response would be to impose a complementary carbon tax on imports. Yet it would appear that the dormant Commerce Clause, and particularly the Supreme Court's narrow interpretation of the complementary tax doctrine, bars the way to such border adjustments. This Article argues that appearances might be deceiving and that border adjustments might be possible. Alternatively, this Article argues that formulary apportionment could take the place of border adjustments.

August 29, 2014

Are “Advisory” Measures (Like Proposition 49) Permitted on the California Ballot?

Cross-posted from Justia's Verdict.

A few months ago, I wrote about an effort by the California legislature to undo an unwise (but duly enacted) voter initiative involving immigration policy. I argued that although removing the initiative's provisions from the books would certainly be a good thing, the legislature lacked the power to effect repeal on its own; respect for the initiative process requires that the people themselves formally weigh in on any proposed repeal. In the space below, I discuss another effort, albeit this time via the judiciary rather than the legislature, to prevent the people from formally weighing in on another hot-button issue: campaign finance reform.

Background and Content of SB 1272 (Which Attempted to Place Proposition 49 on the Ballot)

In July, both houses of the California legislature enacted a bill (SB 1272) that proposed to place an "advisory" question before the California voters in this November's election. SB 1272 submits the following question (designated by the California Secretary of State as Proposition 49) to the California electorate for its input:

Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are rights of natural persons only?

The Howard Jarvis Taxpayers Association and its president Jon Coupal (crusaders for lower taxes in California who have made extensive use of the initiative process for decades) filed a petition in state court seeking to block Proposition 49 from appearing on the November ballot. (The Secretary of State has been in the process over the last few weeks of finalizing the ballots that are being printed so as to be usable in November.) The petitioners argue that the legislature exceeded its powers in trying to place Proposition 49 on the ballot, since, they say, the measure "enacts no law" or "statute," but instead is purely advisory. In a surprise to some political observers, on August 11 the California Supreme Court, by a 5-1 vote (the court is temporarily down one member since Justice Kennard's retirement last spring), decided to block the measure from the ballot, at least for now. (Chief Justice Cantil-Sakauye was the lone dissenter and, as I explain below, she may well have had the right instinct.) The court asked for further briefing over the next month on the validity of advisory measures like Proposition 49, but decided that if Proposition 49 turns out to be permissible, it can be placed on a ballot after November. By contrast, if the measure turns out, on more reflection, to be impermissible, any damage it might create by virtue of its appearance on the November ballot would be hard to remedy.

Although the court did not conclusively decide the validity of Proposition 49, Justice Goodwin Liu wrote an opinion explaining why he believed there was a high likelihood that, after full briefing, he would find the measure to be improper. Putting aside whether trying to amend the federal Constitution to undo Citizens United is a good idea (and I have my doubts), the legality of Proposition 49 raises important and interesting questions under California law. And even though his opinion wasn't joined by other Justices and was preliminary in the sense that he is completely free to rethink things with the benefit of additional briefing and more time, Justice Liu's statement warrants careful attention because he is an intellectual leader on the court, and because he succinctly laid out the case against Proposition 49 that the measure's supporters need to engage.

Justice Liu's Reasoning in Doubting Proposition 49's Validity

Before I turn explicitly to Justice Liu's reasoning, I should say it's not clear to me that the challengers are correct in saying that SB 1272 does not enact a "law" or "statute" (to the extent that anything turns on this). SB 1272 directs that public monies be spent to print text on paper ballots, and that public monies be spent to count the votes in answering the question posed on the ballot. If the legislature passed a bill directing that money be spent on a university poll/study of citizen attitudes on global warming or drug legalization, that bill would be a law, even though the university-led poll/study might not have any self-executing legal effect. Why not the same for a poll/study conducted by the legislature itself?

The legislature argued before the California Supreme Court that SB 1272 is valid whether or not it "enacts a law," because the legislature has the power to do things "incidental and ancillary to the ultimate performance of lawmaking functions by the legislature itself." Seems like a pretty good argument. Justice Liu deflected this suggestion, though, because Proposition SB 1272 does not relate to any potential piece of legislation, but rather to the proposal and ratification of a potential federal constitutional amendment. Justice Liu pointed out (quoting a U.S. Supreme Court opinion) that "[r]atification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word."

I am far from sure that it makes sense to distinguish between legislation and other important actions the legislature takes with regard to the outside world matter here. In the federal context (where the legislature's powers are even more rigorously confined), Congress is empowered to take actions that are "necessary and proper" to carrying into execution all the powers vested in the federal government, not just the legislative powers Congress enjoys.

To see why putting a great deal of weight on the legislation/ratification distinction is perilous, imagine that Proposition 49 were tweaked to include a clause asking the voters whether the California legislature should adopt laws that "test the reaches" or "limit the scope" of Citizens United. It's hard to imagine that this difference in wording should change whether the measure should be allowed on the ballot. And, to his credit, Justice Liu, soon after he draws the distinction between amendment ratification and legislation, makes clear that his real beef with Proposition 49 is that it is purely advisory, and does no more than seek voter opinions in a formal way. In other words, his tentative position seems to be that whether or not SB 1272 is or relates to a "law" or "statute," putting advisory measures before the voters runs afoul of the California Constitution.

But what, precisely, is wrong with the legislature formally asking for the views of the electorate? Justice Liu derives his answer from the concept of accountability. If, he says, "the legislature were to propose a statute for the voters to approve," or ask the voters whether the legislature should adopt a statute containing specific text, and then that statute became law, the lines of accountability would be obscured. If the statute turned out to be a disaster, the legislature might evade responsibility by saying something like (my words, not Justice Liu's): "But you voters approved (or told us to do) this, so you can't now blame us!" By contrast, when the legislature passes a law by itself, citizens can hold it accountable, and when the citizens themselves propose and enact an initiative, they have only themselves-and not the legislature-to blame. Keeping these lines of accountability clear and clean is an important principle that Justice Liu finds implicit in the structure of the California Constitution.

Three Possible Counterarguments to Justice Liu's Reading

On its face, this is a very plausible, creative, and elegant argument, but to my mind it suffers from some significant weaknesses-weaknesses that I hope will be explored in the full briefing for which the court asked. First, as Justice Liu acknowledges, the California Constitution explicitly allows the legislature to propose, for voter approval, state constitutional amendments and also certain statutes authorizing the issuance of bond debt. If these super-important matters can admit of a "mix and match" approach (Justice Liu's term) that makes use of both legislative vetting and popular approval, why wouldn't the same be true for other, less important, matters? Indeed, to the extent that accountability is an important value, wouldn't we want to promote the greatest degree of easy accountability when the stakes are the highest? (More generally, given the cluttered and ultra-detailed nature of the California Constitution, it's hard to draw any bright line that would explain why proposals for altering the state constitution raise fundamentally different concerns than do measures relating to possible statutes.) All of this suggests that easy accountability may not be the overriding constitutional value at work here; the U.S. Constitution and most state constitutions make consistent and convoluted use of shared governmental power that obscures accountability for the sake of other important values, such as deliberation and caution. And-like bicameralism, the veto, and any number of other accountability-blurring "checks and balances"-advisory measures may also promote such deliberation and caution.

Moreover, Justice Liu acknowledges that it would be perfectly appropriate for the legislature to commission a Gallup poll of state voters to assist it in its legislative agenda. Wouldn't the results of such a highly publicized poll also blur accountability? And to the extent that the legislature can more readily avoid responsibility by pointing to a public vote rather than a privately conducted poll, isn't that only because a public vote is a more reliable measure of true attitudes of the body politic? And wouldn't we want the legislature to have the most reliable data available to it?

Second, and quite important, notice that Justice Liu's straightforward accountability argument would seem to forbid not only the legislature's placement of an advisory measure on the ballot, but also the people's direct attempt to put an advisory measure on the ballot to give the legislature formal input. Such a result (which might be supported by, but is not dictated by, past California cases) would create a deep structural dilemma because citizens are not always skilled at drafting laws that will operate in the real world, even if they have a good sense of which values they'd like to promote. Indeed, one of the big drawbacks with the initiative device modernly is that areas like affirmative action, immigration, campaign finance, taxation, etc., are so complicated that initiatives written by non-experts often lock in sub-optimal specifics in attempted furtherance of (at least arguably) laudable and broadly supported sets of principles. In a sensible system that includes direct democracy, there ought to be a way for the voters to say, in a focused and formal way: "We'd like a law that does the following things, but we'd be better off leaving it to legislative experts to draft the details, because we might not do a good job on the fine points, and we thus might generate undesirable consequences that a legislature but not ordinary citizens would be able to foresee." Having citizen groups feel obligated to draft and implement the particulars of complex policy measures is one of the problems with direct democracy we should want to reduce, not one of its salutary features we should want to enhance.

Third, and in some respects most important, I note that there is a provision, Article 1, § 3(a), in the California Constitution that explicitly provides that "the people have the right to instruct their representatives." "Instruction" is a constitutional term of art that goes back to the eighteenth and nineteenth centuries; it is a formal device by which voters collectively direct their state (but not federal) legislators to undertake specific legislative actions, and legislators are bound to comply. As constitutional historians Dan Farber and Suzanna Sherry have observed: "[At the founding in 1787] [v]oters in most states . . . had the right to instruct their representatives and to direct votes on individual issues. [Four] state constitutions [explicitly] guaranteed such a right. In the others, the right was assumed." From what I can tell, the formal right of instruction has been included in every version of California's Constitution going back to 1849, shortly before California became a state.

Over the past two hundred years, the device of formal voter instruction has been invoked with decreasing frequency across the nation, and the idea that state legislators would be legally bound to follow any instruction has also been diluted. Indeed, the California Supreme Court has not meaningfully discussed Article 1, § 3(a)'s instruction provision in recent decades, if ever, even in instances in which the voters seem to have attempted instruction. (American Federation of Labor v. Eu, decided in 1984, is one such case where the court inexplicably failed to discuss the provision.) The Article 1, § 3(a) issue may not have been briefed to the court in the Proposition 49 papers, which would certainly account for and justify the failure of Justice Liu's opinion to mention it.

But the fact that the instruction device has fallen out of favor or lost its power to legally bind legislators does not mean that the device and its textual and historical pedigrees should be ignored. Before the California Supreme Court issues an opinion (after full briefing and careful deliberation in the Proposition 49 matter) holding that any statewide information-gathering "advisory" measure, whether the measure comes from the people directly or from the legislature, is per se inappropriate for the ballot, the court should explain why it is reading the instruction provision out of the state constitution (or at least reading it not to apply in these circumstances).

Finally, I do acknowledge that there might be arguments that distinguish between advisory measures originating from the people and advisory measures the legislature seeks to place onto a ballot. Such arguments could be used to strike down Proposition 49 without gutting the people's right to instruct. At present I am not convinced that any such arguments do forcefully undermine SB 1272 and Proposition 49, but I look forward to seeing what the briefing and the court's ultimate opinions say.

August 20, 2014

Is the University of California Wrong For Admitting More Non-Californians?

Cross-posted from Justia's Verdict.

As the fall semester approaches and college freshmen prepare to start school, there is renewed criticism of the University of California's decision, implemented over the last few years at all or nearly all of the system's campuses, to increase the number and percentage of out-of-state and international college students. The harshest criticism comes from those California students (and their parents) who are finding it increasingly hard to be admitted to UC campuses, especially the most competitive ones like UC Berkeley. Many of these students and parents worry that the University system, motivated by a desire to obtain out-of-state tuition monies, is admitting lesser qualified people from outside California in such a way as to displace more highly qualified California applicants who otherwise might be admitted. Critics feel this is a betrayal of the University's basic purpose, which is to serve the needs of the State. After all, it was California citizens and taxpayers who created the UC and built it up into the best public higher education system in the world. In the space below, I try to debunk some of the myths and misstatements concerning this controversy, and to shed light on the crux of the problem.

The Factual Realities and Myths Underlying the Criticism

Let us begin with the basic factual claims critics often make. Some of these assertions are verifiably true. It is certainly the case that the UC seems intent on yielding more out-of-state and international undergraduate students at its campuses than it did years ago. For example, the system (according to reports in the Los Angeles Times and the San Francisco Chronicle) admitted around 3,000 more out-of-state freshmen in 2014 than in 2013, and in 2013 the number was higher than in 2012 by about another 1,000. Moreover, even as the number of admittees from outside the State is increasing, the number of admitted applicants who come from within California is holding steady or, at many campuses, dropping; only three campuses admitted more California residents in spring of 2014 than in 2013 (although some other campuses, like Berkeley, might have admitted additional in-state students off the wait list over the past few months.) And the percentage (as distinguished from the absolute number) of out-of-state and international students is also on the rise; the share of non-Californian undergraduates within the system nearly tripled from the 2007-2008 year (4.6%) to the 2013-2014 year (11.4%). Finally, it seems true that the additional revenue that students from outside California generate explains part of recent trends. Base tuition for in-state students is around $13,000/year, whereas out-of-state and international students are charged more than $35,000, and UC officials have themselves said that the additional revenue is helping the system.

But many of the key factual assertions made by critics are simply false. UC spokespersons have vehemently and repeatedly said that out-of-state admittees are more, not less, qualified (as judged by SAT scores, high school GPAs and other numerical metrics) than in-state admittees. That doesn't mean that every non-Californian who was admitted had higher grades and test scores than every in-state applicant who was denied (because admissions decisions take account of other, non-numerical, qualitative factors like artistic or musical talent, etc.), but it does mean that, in the aggregate, the numerical credential bar is higher for applicants outside the State.

On top of that, non-Californians bring one credential that in-staters generally can't: geographical diversity. Great universities pride themselves on drawing students from (and having name recognition and alumni contacts throughout) the entire nation and world. Such diversity adds to the mix of distinct outlooks on campus, and increases the range of opportunities for folks when they graduate. As UC spokesperson Diane Klein is quoted as saying: "Undergraduate and graduate students from throughout the United States and the world bring fresh perspectives and, in an increasingly interconnected world, help California students better prepare to operate in the global economy." So (even granting that UC exists largely to serve the State) having more non-Californians may offer benefits to the Californians who are there. (The high quality and geographic diversity that out-of-staters bring may partially explain why many states that aren't as large and diverse as California, like Michigan and Virginia, have for decades enrolled high percentages of out-of-state students in their flagship public universities.)

The Key Question of Whether More Non-Californians Means Fewer Californians

But perhaps the biggest mistake that critics make is to assume that having more out-of-state and international students means that fewer in-state applicants can be admitted. Precisely the opposite is often the case. The question isn't whether the number of in-state admittees has been stagnant over time (that may very well be the case because of decreased funding by the State legislature); the question is whether the number of in-state admittees would be smaller still if non-Californians weren't being admitted. Why might admitting non-Californians allow more Californians to be admitted? Because every non-Californian is charged an extra $23,000 in tuition beyond what in-staters are charged. And that money may more than pay for the out-of-stater, creating a surplus that can be used to subsidize an in-stater.

The UC has fixed costs (physical plant, tenured faculty, etc.) that it must pay no matter what, and variable costs (relating to non-tenured faculty and staff, utility expenses, healthcare and security obligations, insurance, etc.) that increase as the number of enrolled students rises. Because of fixed costs, the expense the University incurs, on the margin, in educating additional students may be somewhat smaller than its average cost-per-student. Of course, there may be an upper limit on how many students can fit within a campus. But there are also points on the spectrum where more students could be accommodated without major long-term infrastructural investment, provided we could find money to pay for the marginal (variable) costs of adding them.

For example, suppose that, at some point on the cost curve, the marginal cost of educating an additional student is about $24,000. Enrolling an additional in-state student alone at that point would not be feasible; she would cost UC another $24,000 but she would pay only $13,000 in tuition, yielding a deficit of around $11,000. But if an out-of-state student were enrolled, he would pay $35,000, which is enough to pay for his own marginal cost ($24,000) as well as the deficit created by the additional in-state student. So, in this simplified example, adding an extra out-of-stater increases the aggregate number (and perhaps also the percentage) of non-California enrollees, but does so in such a way as to allow for the enrollment of an additional in-state student who otherwise could not be admitted. Again, the relevant question (even for the critics) shouldn't be how many in-staters and out-of-staters are being enrolled. Instead, it should be how many in-staters could be enrolled if we cut back on out-of-staters. And the answer is likely going to be: fewer than we have now.

Should In-Staters Be Given the Option of Paying Higher Tuition?

So it is clear that admitting persons who are are willing and able to pay a higher tuition can permit the University to accommodate additional persons who pay the lower tuition rate. All of this brings up the question: Why not offer admission to some of the in-state applicants who are currently being denied if these applicants are willing to pay the higher tuition rate? After all, if the problem is simply a lack of revenue (owing largely to reduced allocations from the legislature), why shouldn't we give in-staters (whose parents and ancestors paid for the University) the first option to pay additional tuition, rather than offering those higher-priced slots to non-Californians?

Imagine, for example, that we said to the 500 in-state applicants who were denied admission to UC Berkeley but whose application files were the closest to making the cut (the first "500 out," to use a March Madness Bracketology term): "You can come to Berkeley, but only if you are willing to pay a tuition rate higher than that being charged to other in-state admittees, who are slightly more worthy of admission than you are." How would that go over? I have a few (preliminary) thoughts.

First, some might object to this approach because, as noted earlier, admitting in-staters who are willing to pay more instead of out-of-staters deprives the University of the ultra-high-quality students and geographical diversity that non-California enrollees are currently providing. But put these factors to one side. Imagine that out-of-state enrollees had the same grades and test scores as the "first 500 out" group I described above. And assume that, because California is almost a nation state unto itself, we already had sufficient geographic diversity without importing out-of-staters.

Even then, I suspect many folks would reject the approach I describe simply because it seems wrong to "sell" UC seats to Californians who have the money to pay for them. Among those "first 500 out," only those families who can afford the higher tuition would be able to accept the offer, such that ability to pay would formally and openly become a criterion of admission. And that is in conflict with the notion that access to a slot in the UC is supposed to be based on your talent, your hard work and your performance, not on your parents' bank account. (Charging out-of-staters higher tuition doesn't quite raise this conflict, because their higher tuition is justified not by their lesser qualifications but rather by their lack of investment in the system-a perfectly reasonable factor to use in setting tuition-and thus need not be thought of as "selling" seats to lesser qualified folks the way charging more to some in-state enrollees than to other in-staters, based on the strength of their admissions files, would.)

Notice that there are some public areas, such as toll roads and (now) security lines at airports, where we have allowed people to gain special access if they are willing and able to pay for it. But we may tolerate such commodification in these settings because we don't think of allocating resources in these arenas as involving a meritocratic assessment the way we conceive of college admissions. We also don't think of roads and airports as gateways to economic mobility the way higher education has been billed. As a result, letting people buy their way out of car traffic and long boarding lines doesn't require that we confront-and grapple with the inaccuracy of-deeply held and desirable societal values such as the notion that college ought to be equally available to anyone who has the talent and work ethic to pursue it.

A generation ago, Guido Calabresi (who was a professor and then Dean of Yale Law School and who now is a federal appellate Judge) and Phillip Bobbit (a law professor at The University of Texas School of Law) wrote a book called "Tragic Choices," in which they discussed how difficult it is for society to move from a bureaucratic or professionalized allocation of scarce resources (the way university admissions typically operate) to a market-based approach, when doing so starkly exposes the frailty or falsity of important societal ideals (like equal educational access). We all know that at some important level family wealth makes access to college easier (and lack of wealth makes college for many quite difficult), but explicitly selling off UC slots to wealthy in-staters would require us to confront unpleasant truths in a way that we may not simply be able to handle.

Private universities can (and sometimes do) take a student's ability to pay into account at the admissions stage, and many such universities do admit less qualified yet wealthy applicants. But these institutions get to make their decisions outside the public view. Importantly, because of transparency requirements concerning public college admissions and tuition-setting processes (which reflect another deeply held societal norm-that public institution operations should be visible), there is no easy way to sell UC seats without everybody seeing exactly what is being done. That may be why (as far as I am aware) no high-level policy-makers in California have seriously floated the approach I discuss here.

Notice also that selling off some UC seats to wealthy in-staters might allow significant numbers of additional poor or middle class Californians to attend (so long as the sales price exceeds the marginal cost of educating the wealthy student.) Indeed, one could imagine a scenario in which UC seats would be auctioned so that a few mega-wealthy but less qualified applicants would end up subsidizing large numbers of lower or middle class enrollees. So if our focus were merely on increasing the absolute number of highly qualified lower or middle class Californians who could be accommodated within UC, a regime in which the University sold or auctioned off seats might have some upside. But that regime would do major damage to important societal ideals.

Finally, notice that these tradeoffs between the accomplishment of pragmatic goals and the preservation of (sometimes unrealistic but nonetheless attractive) societal values are not always static. During the Civil War, for example, draftees were able to buy their way out of military service by hiring people to take their places. Today, we would (rightly) find such a practice abhorrent; we would not permit it because it would expose too starkly the (persistent) reality that it is the poor who are ultimately forced (by economic distress) to bear the brunt of fighting our wars. In suggesting that things change over time, I am not predicting that UC seats will be formally commercialized anytime soon. But I will point out that many folks, myself included, did not fully foresee all the changes in public higher education funding (especially as to professional schools) that have taken place over the last two decades. And I could imagine ways of possibly moving toward the approach I describe above without seeming to sell seats so explicitly-for example, charging all in-state admittees a higher tuition but giving all but the last 500 admitted a "merit" scholarship so that the net price for almost everyone remains unchanged. Indeed, many public law schools-whose state subsidies were cut earlier and more deeply than those at the corresponding public undergraduate institutions-have moved to this kind of model. Some public colleges may end up following suit to address their revenue problems, even though many of us would favor restoration of legislative funding even more. So never say never.

August 5, 2014

How to Read Justice Kennedy’s Crucial Concurring Opinion in Hobby Lobby: Part II in a Series

Cross-posted from Justia's Verdict.

In my last column, Part I of this Two-Part series, I argued that lower courts are justified in paying (indeed perhaps required to pay) close attention to Justice Kennedy's concurring opinion in this summer's blockbuster Burwell v. Hobby Lobby ruling, even though the "Opinion of the Court" in that case had the support of five Justices. Because Justice Kennedy was one of the five in the majority in this 5-4 case, his understanding of the majority opinion-on which he based his decision to join and which is explained in his concurring opinion-essentially represents the narrowest common grounds on which a majority of Justices agreed.

In the space below, I suggest a number of significant ways in which Justice Kennedy's take on the majority opinion, which he says are among the "reasons . . . [he] join[ed] it[,]" counsels in favor of a narrow reading of what the Court decided. To see why this is so we must directly compare Justice Alito's majority opinion (and the language and tone it used) with Justice Kennedy's writing.

The Basic Structure of Justice Alito's Opinion of the Court

Justice Alito's opinion can be broken down into two big questions: (1) Does the Hobby Lobby corporation partake of protection under the federal Religious Freedom Restoration Act (RFRA)?; and (2) Is the contraception mandate in the Affordable Care Act (ACA) regulations the "least restrictive means" to accomplish the "compelling" government interest-that female employees receive contraceptive service insurance at no cost-as required under RFRA?

On the first question, Justice Alito reasons quite broadly, and rests statutory protection for Hobby Lobby on the ground that a for-profit closely held corporation is itself a "person" capable of the "exercise of religion" under RFRA (rather than resting protection on the idea that the persons whom RFRA protects are the owners of a corporation, and the fact that Hobby Lobby's owners are operating through the corporate form should not strip them of the statutory protection they have as individual human beings to practice religion). Because of this broad reasoning, and because Justice Kennedy did not say anything in his concurrence on this question, the Court (and lower courts) may find it difficult to deny RFRA coverage to publicly traded corporations whose managements try to assert claims for religious exemptions in the future.

But on the second question-concerning what RFRA protection means once RFRA applies-the breadth of the Court's ruling is more open to debate, because Justice Kennedy did say things that might diverge from what Justice Alito said. I mention four such possible divergences here.

Some Ways in Which Justice Kennedy's Understanding of the What the Majority Held Might Be a Narrow One

First, and perhaps least significant doctrinally but potentially important optically, while Justice Alito characterizes the test the government must meet to justify denying an exemption under RFRA as "exceptionally demanding," Justice Kennedy is content to call it "stringent" (citing his own opinion in a prior case). This subtle language difference may send slightly different messages to lower courts about how tough to be in evaluating arguments put forth by the federal government in future cases.

Second, on the question whether the government has a "compelling" interest (the kind of interest it needs under RFRA) "in ensuring that all women have access to all FDA-approved contraceptives without cost sharing," Justice Alito spends a great deal of space explaining why it is "arguable" that the government should lose on this question. In particular, he discusses how the exceptions the Affordable Care Act creates for existing health plans to be "grandfathered"-and thus not required to provide contraceptive coverage-undermine the notion that the government's interest is compelling. Justice Alito ultimately finds it "unnecessary to adjudicate this issue [because] [w]e will assume that the interest in guaranteeing cost-free access . . . is compelling."

Justice Kennedy on this question writes in a way that suggests a much stronger likelihood that he would, if push came to shove, find (as the four dissenters did) the government's interest to be compelling, notwithstanding the grandfather exceptions. He says that is "it is important to confirm that a premise of the Court's opinion is its assumption that the . . . regulation here furthers a legitimate and compelling interest in the health of the female employees." It is true that he uses the word "assumption"-which reminds us that the Court assumed but did not decide the government's interest was compelling. But one wonders why it is important to "confirm" an "assumption" unless the assumption is likely to be correct. Also, Justice Kennedy starts this part of his discussion by saying that the federal government "makes the case that the mandate serves . . . [a] compelling interest" (emphasis added). "Makes the case" is a term that can be read to mean simply "argues" or "contends," but more often it is used to mean "provides good reasons to think."

If Justice Kennedy is, in fact, sending a signal here that government-granted grandfather exceptions based on convenience and ease of transition do not undermine the compelling nature of a government interest, and if that is how lower courts read his tone here, then such a signal could have important consequences for the range of other government interests that are asserted in subsequent RFRA cases, and other cases in which the government needs to establish a compelling interest. Government often needs to grant exceptions to facilitate enactment of big new regulatory schemes, and if the inclusion of such exceptions jeopardizes the idea that the government has compelling interests on which it is acting, a great deal more government regulation would be vulnerable.

The Key Questions of What the Less Restrictive Alternative in Hobby Lobby Was and How Competing Interests Should Be Weighed

 Third, on the important question whether the Government should lose because it could pay for the contraceptive coverage itself (rather than requiring employers to provide it), and government payment is a "less restrictive means" to accomplish the government's (compelling) objective, Justice Alito seems to try to have his cake and eat it too. He says ultimately that "we need not rely" on this possible accommodation as a basis for Hobby Lobby's victory because the federal government could also simply tell insurance companies (rather than employers) to provide the coverage (as the government does for non-profit corporations), but this language comes only after Justice Alito had already spent a lot of ink explaining why the government-payment option seems to be required under RFRA. Indeed, Justice Alito observes that it is "hard to understand" the Government's argument to the contrary. Moreover, even though Justice Alito writes that the Court "need not rely" on this accommodation, he doesn't say whether he means simply that there are two possible accommodations that explain Hobby Lobby's victory (in which case neither of them is one that must be relied on), or instead that the second accommodation (having the insurance companies provide the coverage) is the statutorily required accommodation in this case, such that the Court doesn't decide whether, in the absence of such an option, the government would have to pay itself. Note that, unlike the language concerning whether there is a compelling interest, Justice Alito does not say the Court declines "to adjudicate" this issue.

Justice Kennedy, by contrast, does not equivocate here, and makes clear that, as he reads the majority opinion he is joining, the Court is not deciding the question whether the Government would have to pay itself if the insurance-company-accommodation were not available: "In discussing th[e] [government-payment] alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program [, because] [i]n these cases, it is the Court's understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government." For this reason, he says, the "Court does not resolve" the question whether creating a new government spending program could be required.

Fourth, and more generally, on the question of how much cost the government must be willing to bear to accommodate religious exercise, Justice Kennedy notes: "[T]his existing model [i.e., having the insurance company bear whatever cost may be involved], designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise" (emphasis added).

And, importantly, he also says, apparently in response to concerns that federal sex discrimination workplace protection will go by the boards-a prospect that Justice Alito's opinion pointedly did not deny-that religious exercise, while important, cannot "unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling." Justice Alito does acknowledge that courts must take "adequate account of the burden a requested accommodation imposes on non-beneficiaries," but he makes this concession in a footnote that literally marginalizes the concerns of third parties.

Justice Kennedy's language makes clear that he will, in deciding when an exemption under RFRA is warranted, surely consider costs, both to the government and to third persons, as a counterbalance to any assertion of religious liberty. Indeed, in some ways, Justice Kennedy's opinion is eerily similar in substance to Justice Blackmun's writing in National League of Cities that I discussed in Part I of this series; Justice Kennedy recognized the right to an exemption in the case before him, but he indicated more directly than did Justice Alito that in future RFRA cases some kind of balance-rather than an absolute or near-absolute entitlement to exemption-is called for.

If this is so, and if (as I think they can and should) lower courts take their cue from the writing of this fifth Justice in the majority in Hobby Lobby, then Justice Kennedy's writing may go a fair ways in determining exactly how many companies can successfully use Hobby Lobby to obtain exemptions by suing under RFRA.