June 25, 2015

New Faculty Research: Legal Studies Research Paper Series, Vol. 17 No. 3

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


"Law and the Geography of Cyberspace"  
6 W.I.P.O.J., Issue 1 (2014)
UC Davis Legal Studies Research Paper No. 432

ANUPAM CHANDER, University of California, Davis - School of Law

The Internet was supposed to end geography. Anyone, anywhere could now run a newspaper, a search engine, a game service, and the world could access it. After millennia of geography dictating destiny, the world was now flat, and opportunity evenly distributed everywhere. Yet, a quick glance at the world's leading internet companies, from Facebook to Zillow, leads one remarkably often to the United States. In this article, I argue that law played a crucial role in creating the geography of cyberspace - specifically, that flexible intellectual property rules which permitted internet entrepreneurship in the United States proved a key ingredient in American commercial success on the internet.

"After the Revolution: An Empirical Study of Consumer Arbitration"  
Georgetown Law Journal, Vol. 104, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 436

DAVID HORTON, University of California, Davis - School of Law
ANDREA CANN CHANDRASEKHER, University of California, Davis - School of Law

For decades, mandatory consumer arbitration has been ground zero in the war between the business community and the plaintiffs' bar. Some courts, scholars, and interest groups argue that the speed, informality, and accessibility of private dispute resolution create a conduit for everyday people to pursue claims. However, others object that arbitration's loose procedural and evidentiary rules dilute substantive rights, and that arbitrators favor the repeat playing corporations that can influence their livelihood by selecting them in future matters. Since 2010, the stakes in this debate have soared, as the U.S. Supreme Court has expanded arbitral power and mandated that consumers resolve cases that once would have been class actions in two-party arbitration. But although the Court's jurisprudence has received sustained scholarly attention, both its defenders and critics do not know how it has played out behind the black curtain of the extrajudicial tribunal.

This Article offers fresh perspective on this debate by analyzing nearly 5,000 complaints filed by consumers with the American Arbitration Association between 2009 and 2013. It provides sorely-needed information about filing rates, outcomes, damages, costs, and case length. It also discovers that the abolition of the consumer class action has changed the dynamic inside the arbitral forum. Some plaintiffs' lawyers have tried to fill this void by filing numerous freestanding claims against the same company. Yet these "arbitration entrepreneurs" are a pale substitute for the traditional class mechanism. Moreover, by pursuing scores of individual disputes, they have inadvertently transformed some large corporations into "extreme" repeat players. The Article demonstrates that these frequently-arbitrating entities win more and pay less in damages than one-shot entities. Thus, the Court's consumer arbitration revolution not only shields big businesses from class action liability, but gives them a boost in the handful of matters that trickle into the arbitral forum.

"The Effect of the Successful Assertion of the State Secrets Privilege in a Civil Lawsuit in Which the Government Is Not a Party: When, If Ever, Should the Defendant Shoulder the Burden of the Government's Successful Privilege Claim?"  
Wyoming Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 428

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

It is well-settled that the national government has an evidentiary privilege protecting state and military secrets. The privilege protects information that can be vital to the country's safety and survival. It was expectable that the national government would begin asserting the privilege more frequently after 9/11. The government has invoked the privilege in several prosecutions of alleged terrorists.

However, the privilege also applies in civil actions. Indeed, the government may assert the privilege in a civil action even when the government is not joined as a party. The government has the right to intervene for the purpose of claiming the privilege. In recent years, the government has asserted the privilege in a large number of civil actions, including cases involving high technology companies, private security firms, infrastructure contractors, and weapons and aircraft manufacturers.

When the government successfully asserts the privilege in a civil action in which it is not a party, the question naturally arises: What is the procedural effect of the assertion? As the quotations at the beginning of this article indicate, the generalization has been that the only effects are that the privileged information becomes unavailable as evidence and that the case can proceed without the privileged evidence. However, Part I of this article demonstrates that that generalization is a gross over-simplification. In many cases, the court terminates the litigation, resulting in a peremptory victory for the defense. The plaintiff loses the opportunity to conduct discovery or take the case to trial.

Part II of this article presents a critical evaluation of the current state of the law. The primary thrust of Part II is that at least in one set of circumstances, the plaintiff ought to be permitted to proceed - namely, when (1) the plaintiff has sufficient unprivileged evidence to present a prima facie case, (2) proceeding would not raise a significant risk of the inadvertent revelation of privileged information, (3) the privilege claim affects the defense's ability to develop an affirmative defense, and (4) the defendant has a closer relationship to the government than the plaintiff. A factual proposition is considered an affirmative defense because the law assigns the defendant the burdens of pleading, production, and proof on the proposition. The allocation of these burdens to the defendant can be outcome determinative. If there were sufficiently weighty policies to assign those burdens to the defendant, in these circumstances the defendant should also bear the burden of the loss of the privileged evidence. The government's privilege claim neither extinguishes nor diminishes the policies that originally warranted assigning the burdens to the defense. Part II adds that there is a colorable argument that the plaintiff should also be permitted to proceed when the government claim interferes with the defendant's ability to present a simple defense, merely negating an element of the plaintiff's case.

Part II emphasizes that although the plaintiff should be permitted to proceed in these exceptional cases, the court should not grant the plaintiff the sort of peremptory victory that the defense usually obtains after the government's claim. Even when the plaintiff proceeds, it is not a foregone conclusion that there will be a plaintiff's verdict. A key plaintiff's witness may become unavailable for trial, a nervous witness might forget information critical to the plaintiff's case, or the witness may display negative demeanor that prompts the jury to disbelieve the witness's testimony. Hence, the judge should neither enter summary judgment for the plaintiff nor direct a verdict in the plaintiff's favor. However, the thesis of this article is that in these cases the law should be reformed to accord the plaintiff an opportunity to proceed and fairly win a verdict.

"Under the Sun: Casebooks and the Future of Contracts Teaching"  
68 Hastings Law Journal 899 (2015)
UC Davis Legal Studies Research Paper No. 433

THOMAS WUIL JOO, University of California - Davis Law School

What is the future of the casebook in legal education? It is tempting and fashionable to blame the current woes of law schools on their supposedly "outdated" educational practices, such as casebooks. As this Essay shows, however, most of the current criticisms of casebooks and the case method are perennial ones. This does not render the critiques invalid, but it does undermine the notion that they reveal a contemporary crisis in legal education. Indeed, they are not even specific to legal education. Rather, they reflect fundamental tensions in the learning of any field: theory versus practice, general understanding versus specific technical knowledge. By saying that there is nothing truly new in these criticisms, I do not mean to say that proposals for reform are futile or ill-advised. It is simply that there is nothing new under the sun, in legal education or anywhere else. Legal education has gone back and forth on these matters, and will continue to do so, and that is probably as it should be.

"Family Support and Supporting Families"  
68 Vanderbilt Law Review En Banc 153 (2015)
UC Davis Legal Studies Research Paper No. 427

COURTNEY G. JOSLIN, University of California, Davis - School of Law

This Essay is a Response to Professor Laura Rosenbury's recent article Federal Visions of Private Family Support. Rosenbury's piece offers critical new insights into the role of the federal government in the family. Rosenbury's first important contribution is to demonstrate that, contrary to the dominant narrative, the federal government does not "consistently defer to states' authority to define family." Second, Rosenbury takes this point further by offering one of the few theories that seeks to explain why the federal government intervenes in the family. Rosenbury argues that the overriding reason the federal government recognizes families is "to privatize the dependencies of family members," that is "to incentivize individuals to privately address the dependencies that often arise when adults care for children and for one another." At a time when one of the most visible family law questions is whether same-sex couples will be permitted to marry, this aspect of family recognition is often overlooked, or at least undertheorized. This oversight is a mistake. Rosenbury's piece seeks to keep this consequence of family recognition at the forefront of family law reform conversations.

This Essay highlights the significance of the contributions Rosenbury offers and then pushes her analysis even further. As Rosenbury herself acknowledges, the imposition of family-care obligations is not the only consequence of family recognition. In many circumstances, the government - at both the state and the federal level - also distributes family-based benefits or subsidies to help people fulfill these caregiving and support responsibilities. And while both sides of this equation - the legal obligations of and the subsidies for caretaking - clearly are interrelated, additional insights can be gained by separating these two effects of family recognition. In particular, this Essay argues that by looking at both the imposition of family-care obligations and the distribution of family-based subsidies one can better assess the effectiveness (or lack thereof) of family law and policy on particular families. In addition, looking at both sides of the equation can also provide a deeper understanding of why governments recognize families.

"The Supreme Court's Myriad Effects on Scientific Research: Definitional Fluidity and the Legal Construction of Nature"  
5 U.C. Irvine Law Review, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 431

PETER LEE, University of California, Davis - School of Law

This article examines the implications for biomedical research of the Supreme Court's ruling in Association for Molecular Pathology v. Myriad Genetics that isolated DNA does not comprise patentable subject matter but that complementary DNA (cDNA) does. Although most of the commentary surrounding this case has focused on the availability of genetic diagnostic tests, this Article considers the related and important implications of this opinion for scientific research. At the outset, it argues that this issue is beset with definitional complexity, as it is often difficult to disentangle "commercial" from "research" uses of patented genes. This Article further argues that context matters significantly in assessing the impact of the Court's ruling on research. Accordingly, this Article examines the implications of Myriad Genetics from three perspectives. First, considering the conduct of Myriad Genetics itself, it argues that the Supreme Court's decision creates greater real and perceived freedom to operate for uses of BRCA genes that may yield important scientific insights. Second, reviewing the literature on gene patents and anticommons, this Article argues that the Court's ruling will help enhance access to diagnostic testing more generally, thus advancing biomedical research. Third, at a doctrinal level, this Article suggests that Myriad Genetics may have significant long-term implications. The Court's opinion reflects a strong policy interest in excluding "nature" from patentable subject matter as well as a high degree of discretion in determining the contours of nature for that purpose. Such a policy-oriented, pragmatic approach to patent eligibility may create significant flexibility to challenge patents in research contexts going forward.

"The Supreme Assimilation of Patent Law"  
UC Davis Legal Studies Research Paper No. 435

PETER LEE, University of California, Davis - School of Law

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. Focusing on this tension, this Article explores an underappreciated descriptive theory of recent Supreme Court patent jurisprudence. Commentators observe that the Court has reined in expansive Federal Circuit patent doctrine and established holistic standards to replace bright-line rules. This Article augments these prevailing interpretations by exploring another. Building upon and significantly extending previous scholarship, it argues that the Supreme Court's recent patent jurisprudence reflects a project of eliminating "patent exceptionalism" and assimilating patent doctrine to general legal principles. In a variety of areas including appellate review of lower courts and agencies, jurisdiction, remedies, and the award of attorney's fees, the Federal Circuit has developed rather exceptional doctrine for patent cases. However, the Supreme Court has consistently eliminated such exceptionalism, bringing patent law in conformity with general legal standards. Among other observations, the Supreme Court's intervention reveals its holistic outlook as a generalist court concerned with broad legal consistency, concerns which are less pertinent to the quasi-specialized Federal Circuit. The Article concludes by arguing in favor of selective, refined exceptionalism for patent law. Although the Supreme Court should strive for broad consistency, this Article argues that unique features of patent law - particularly the role and expertise of the Federal Circuit - justify some departure from general legal norms. Finally, this Article turns to tensions between legal universality and exceptionalism more broadly, articulating principles to guide the deviation of specialized areas of law from transcendent principles.

"The Missing Pieces of Geoengineering Research Governance"  
Minnesota Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 434

ALBERT LIN, University of California, Davis - School of Law

Proposals to govern geoengineering research have focused heavily on the physical risks associated with individual research projects, and to a somewhat lesser degree on fostering public trust. While these concerns are critical, they are not the only concerns that research governance should address. Generally overlooked, and more difficult to address, are the systemic concerns geoengineering research raises: technological lock-in - the danger that sustained research efforts will predetermine geoengineering deployment decisions; moral hazard - the danger that increased attention to geoengineering will undermine efforts to reduce greenhouse gas emissions; and the potential that research itself will increase the probability of future global conflict. Developing mechanisms to address these systemic concerns is a difficult but essential task. This Article proposes an ongoing programmatic technology assessment to analyze the physical and systemic risks associated with geoengineering research, prioritization of research into techniques involving lesser risks, and establishment of safeguards against such risks.

"Brief of Interested Law Professors in Direct Marketing Association v. Brohl (10th Circuit)"  
UC Davis Legal Studies Research Paper No. 429

DARIEN SHANSKE, University of California, Davis - School of Law
ALAN B. MORRISON, George Washington University - Law School
KIRK J. STARK, University of California, Los Angeles (UCLA) - School of Law
JOSEPH BANKMAN, Stanford Law School
JORDAN M. BARRY, University of San Diego School of Law
BARBARA H. FRIED, Stanford Law School
JOHN A. SWAIN, University of Arizona - James E. Rogers College of Law
DENNIS J. VENTRY, University of California, Davis - School of Law

This case, Direct Marketing Association v. Brohl, was recently remanded by the U.S. Supreme Court to the Tenth Circuit Court of Appeals. The Tenth Circuit then requested a full supplemental briefing; amici law professors submitted this brief.

Like all states with a sales tax, Colorado faced - and faces - a voluntary compliance problem with the collection of its use tax. The use tax is a complement to the sales tax; in-state vendors collect and remit the sales tax, while in-state consumers are responsible for remitting the use tax on purchases made from out-of-state vendors that do not collect the sales tax. To this compliance challenge, Colorado turned to a third-party reporting solution. In broad strokes, the Colorado Statute imposes a modest requirement on one party to a taxable transaction - specifically on relatively large retailers who do not collect the use tax - to report information on their Colorado sales both to the consumer/taxpayer and to the taxing authorities.

Amici make three specific arguments. First, amici demonstrate that third-party reporting of tax information is a ubiquitous and longstanding feature of modern tax systems. When tax authorities rely on taxpayers to self-report their taxable activities, compliance rates for the collection of any tax is low. Therefore, from the broader perspective of tax collection theory and history, including the history of very similar transaction-based taxes that attempt to tax consumption, the Colorado Statute is an unexceptional response to an otherwise intractable problem.

Second, amici argue that the Supreme Court's decision in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), does not apply to the statute at issue in this case. Quill imposed a bright-line physical presence test as a precondition for a state to impose a use tax collection obligation on a retailer. Because of its own self-limiting language and logic, not to mention greatly changed circumstances, the rule of Quill should not be extended into a new area.

Third, amici argue that, because sales and use taxes constitute a unified system, there is no discrimination simply because differently situated retailers are required to aid in the collection of what is essentially a single tax in different ways.

"Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929, by Ajay K Mehrotra (Review)"  
46 Journal of Interdisciplinary History 133 (Summer 2015)
UC Davis Legal Studies Research Paper No. 430

DENNIS J. VENTRY, University of California, Davis - School of Law

Mehrotra's award-winning book is a tour de force. It chronicles a transformative period in the development of the American fiscal state during which the old order - characterized by indirect, hidden, mercilessly regressive, and partisan taxation - gave way to a direct, transparent, steeply progressive, and professionally administered tax regime.

June 18, 2015

Premiere of Film on the Historic Trial that Made Rape a War Crime

This week, I am in Rwanda for the premiere of the documentary film The Uncondemned.

The Uncondemned documents the legal and political path to the 1998 conviction of Jean-Paul Akayesu, the mayor of Taba Commune, Rwanda, in the first-ever conviction of rape as an act of genocide and as a crime against humanity.  The prosecution and conviction were at the International Criminal Tribunal for Rwanda (ICTR). a forerunner to the International Criminal Court.  The Rwandan Genocide occurred over about 3 months, beginning in April 1994, after the plane carrying the president of Rwanda, a moderate Hutu, was shot down. 

I was a gender consultant to ICTR in 1996 where I did the initial legal analysis of the sexual assault case against Akayesu, arguing that the indictment (for killings as acts of genocide and as crimes against humanity) against him should be amended to include charges of rape and other sexual assaults that occurred at the Taba Bureau Communale, which was under his control.  I appear in the film, along with the two American lawyers who tried the case, Pierre-Richard Prosper and Sara Darehshori. Also featured are other officials of ICTR, journalists who covered the genocide, and human rights advocates. 

Most exciting is that the three women who were the key witnesses against Akayesu are in the film, along with the Taba commune social worker who encouraged them to testify and helped to facilitate their doing so.  Those four women attended the premiere.  Their statements were the ones I was analyzing back in 1996. 

The President of Rwanda, Paul Kagame, hosted the screening of The Uncondemned in the capital city, Kigali. Also among those in attendance were the Minister of Justice, the Foreign Minister and a number of women parliamentarians. Official photos from the event are posted to the President's  Flickr album.  I am in a couple of the photos there, and my son William is one, too, near the bottom of the page.  


Photo: Professor Lisa Pruitt with two of the rape survivors, Serrafina and Victoire, who testified against Akayesu.

The Uncondemned is expected to be in distribution across the U.S. and worldwide in 2016.


June 15, 2015

Opinion analysis: Limited judicial review of consular officer visa decisions – foreshadowing the result in the same-sex marriage case?

Cross-posted from SCOTUSblog.

Today, a splintered Supreme Court issued a ruling in Kerry v. Din.  The case raised the question of the continuing vitality of the doctrine of consular non-reviewability and its prohibition of judicial review of visa denials by Department of State consular officers. The doctrine is a close cousin of immigration law's extraordinary "plenary power doctrine," which emerged in the late 1800s to uphold laws restricting immigration from China and, in its modern incarnation, immunizes the U.S. immigration laws from ordinary constitutional review.

Over the years, the courts have recognized exceptions to consular absolutism. The most well-known modern example is Kleindienst v. Mandel (1972). In that case, the Supreme Court reviewed a claim brought by U.S. citizens that the exclusion of a Marxist journalist from the United States violated their First Amendment right to hear him speak. In reviewing the visa decision, the Court found that the applicant's violation of the terms of visas on previous trips to the United States was a "facially legitimate and bona fide reason" - and thus legally sufficient - justification for the U.S. government's actions.

Kaniska Berashk is a citizen of Afghanistan and the spouse of Fauzia Din, a naturalized U.S. citizen. Based on his marriage to a U.S. citizen, he applied for a visa for which he was prima facie eligible under the Immigration and Nationality Act. A consular officer in the U.S. embassy in Islamabad, Pakistan, denied the visa application. One could guess that the denial was based on the fact that Berashk had worked as a payroll clerk for the Afghan Ministry of Social Welfare, part of the national government at one time controlled by the Taliban. The officer did not so state, however, instead relying on the immigration statute's broad definition of "terrorist activities," which Congress had greatly expanded in 1996 immigration reform legislation and later in the USA PATRIOT Act. The officer provided no explanation of what Berashk specifically had done to warrant the visa denial. Din sought judicial review of her husband's visa denial and forced separation from her. Applying Kleindienst, the court of appeals found that the consular officer's perfunctory citation to the statute was an insufficient ground for the denial.

Before the Supreme Court, the Obama administration took a firm position and relied heavily on two Cold-War-era decisions that immigration law professors love to hate: Knauff v. Shaughnessy (1950); in which the Court held that the non-citizen wife of a U.S. citizen could be denied admission based on secret evidence, and Shaughnessy v. United States ex rel. Mezei (1953), in which the Court refused, based on secret evidence, to allow a long-term U.S. resident to return to the United States after a trip abroad to visit a dying relative, even when the resident faced the prospect of indefinite detention because his native country would not accept his return. Seeking to limit Kleindienst to its facts, the U.S. government argued that it possessed absolute authority to exclude non-citizens from the country and that there therefore is no right to judicial review of visa denials by consular officers.

The opinions of the Justices reveal that the case appears to have been more a battlefield over the scope of constitutional due process rights to marriage - and thus perhaps to the same-sex marriage case (Obergefell v. Hodges) currently before the Court - than a case involving judicial review of visa decisions.

Justice Antonin Scalia announced the judgment of the Court and delivered an opinion, in which Chief Justice John Roberts and Justice Clarence Thomas joined. In the view of the plurality, Din did not have a constitutional right at stake that justified judicial review: "What Justice Breyer's dissent strangely describes as a 'deprivation of her freedom to live together with her spouse in America' . . . is, in any world other than the artificial world of ever-expanding constitutional rights, nothing more than a deprivation of her spouse's freedom to immigrate into America."

Recounting the long history of regulation of the immigration of spouses of U.S. citizens to the United States (that includes the stripping of U.S. citizenship from women who married foreigners), Justice Scalia took pains to criticize Justice Stephen Breyer's assertion (in his dissent) that Din had a constitutional right at stake. He concluded that "[t]o the extent that she received any explanation for the Government's decision, this was more than the Due Process Clause required." Consequently, the Ninth Circuit ruling to the contrary was vacated and the case was remanded for further proceedings.

Justice Anthony Kennedy, joined by Justice Samuel Alito, concurred in the judgment. While agreeing with the plurality that the case must be vacated and remanded, Justice Kennedy stated that, "rather than deciding, as the plurality does, whether Din has a protected liberty interest, my view is that, even assuming she does, the notice she received regarding her husband's visa denial satisfied due process." Refusing to join Justice Scalia's recounting of the case law on the scope of the right to marriage, Justice Kennedy would find that the reasoning offered by the consular officer for denying the visa satisfies Kleindienst, suggesting that national security justifies the minimal justification offered for the denial.

In dissent, Justice Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, would conclude that Din "possesses the kind of 'liberty' interest to which the Due Process Clause grants procedural protection. And the Government has failed to provide her the procedure that is constitutionally 'due.'" "[T]the liberty interest that Ms. Din seeks to protect consists of her freedom to live together with her husband in the United States. She seeks procedural, not substantive, protection for this freedom."

Like the Ninth Circuit and unlike Justice Kennedy, Justice Breyer would require a more complete explanation for the visa denial than the one provided to Din and Berashk. To the four dissenters, the consular officer's statement in this case (the citation to the statute's "terrorist activity" provisions) was inadequate because (1) the terrorist activity provision literally lists dozens of activities that can lead to the denial of a visa; and (2) there was no factual basis for the specific denial of a visa to this applicant. The dissent also rejected the idea that national security concerns justify the cryptic denial in this case.

Because there was no majority opinion, today's decision probably will not dramatically change the doctrine of consular non-reviewability. The debate between the Justices in this case was really about the scope of Din's constitutional right, not judicial review of a consular officer's decision. One would not be surprised if the Justices had the same-sex marriage case in the backs of their minds, with four Justices viewing the right more broadly than the plurality and Justices Kennedy and Alito refusing to join the narrow view of the right articulated by Justice Scalia.

However, the Court offers hints about the future of judicial review of immigration decisions. A majority of the Court is willing to allow some kind of review of consular officer visa decisions. Justice Kennedy's concurring opinion would allow for more deferential judicial review than Justice Breyer's dissent. However, both - representing six Justices in total - reviewed the consular officer visa denial in this case. Among the opinions, there was no ready defense of the doctrine of consular non-reviewability and no aggressive invocation of cases contrary to modern constitutional sensibilities such as Knauff and Mezei.

Today's decision could reasonably be read as reaffirming Kleindienst v. Mandel and continuing to allow some modicum of judicial review of consular visa decisions that implicate the rights of U.S. citizens. The Supreme Court's holding is consistent with its decisions for more than a decade vindicating some kind of judicial review in immigration cases.

June 5, 2015

Takeaways From the Facebook Threat and Title VII Head Scarf Cases Handed Down by the Court This Week

Cross-posted from Justia's Verdict.

On Monday, the Supreme Court handed down two cases, Elonis v. United States and EEOC v. Abercrombie & Fitch, that had received a lot of press in earlier stages of the litigations and that, judging from the briefs, posed important civil rights issues concerning freedom of speech and freedom of religion, respectively. Although the Court ended up resolving the two matters on relatively narrow grounds-disappointing some of the Justices as well as analysts-it is important to understand precisely what the Court did (and did not) hold in these two rulings, both of whose outcomes were decided by 8-1 votes. In the space below, I briefly discuss the two decisions individually and then side-by-side.

Elonis v. United States

Based on statements he posted on Facebook directed at, among others, his ex-wife, federal law enforcement officials, and school children, Anthony Elonis was convicted of violating federal criminal statutes that prohibit the interstate transmission of communications containing threats to injure other persons. For example, in referring to FBI officials (who had visited his home to interview him about his activities), Elonis wrote online (seemingly in rap-style cadence):

[T]he next time you know, you best be serving a warrant
And bring yo' SWAT an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb . . .
I was jus' waitin' for y'all to handcuff me and pat me down.
Touch the detonator in my pocket and we're all goin' BOOM!

In another posting, Elonis offered:

That's it. I've had about enough.
I'm checking out and making a name for myself.
Enough elementary schools in a ten mile radius to initiate the most heinous shooting ever imagined. . .
The only question is. . . which one?

In entries about his wife, Elonis wrote: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch . . . " And so forth.

At Elonis's criminal trial, the federal district judge instructed the jury that, for purposes of whether Elonis had issued threats prohibited by the statute, "[a] statement is a true threat [subject to prosecution] when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Elonis argued under both the First Amendment and also under the federal criminal statute he was charged with violating that, before a person can be punished for expressing a threat, the government must allege and prove that the defendant subjectively intended to threaten his victim. In other words, Elonis argued that the government needed to prove that he had some subjective state of mind with respect to the effect that his words would have on the individuals to whom they were directed, and not simply that he voluntarily uttered the words and should have known the effect those words would create.

The U.S. Court of Appeals for Third Circuit (along with a large number of other circuits) have rejected the idea that the First Amendment requires the government to prove any subjective state of mind in order to punish threats consistent with the First Amendment. Instead, the Third Circuit held that statements that are reasonably construed as threats by listeners can lawfully be punished. In contrast, the Ninth Circuit (and a number of state high courts) has read the First Amendment as requiring the proof of a subjective intent to threaten as a predicate to a prosecution for threatening speech.

When the Supreme Court granted review, most commentators expected it to weigh in on and resolve this divergence in the lower courts over what the First Amendment requires. But in its ruling three days ago, the Justices decided the case purely on the basis of the federal statute under which Elonis was prosecuted; the Court explicitly deferred any analysis or interpretation of First Amendment requirements. And under the federal statute at issue, the Court said, Elonis is correct that some subjective intent by the person uttering the alleged threat is required; negligence by the person issuing the threat (in the sense that he reasonably should have foreseen that his words would be interpreted as threatening) was not enough. Although Chief Justice Roberts's majority opinion conceded that there is no intent standard written into the text of the federal statute, the Court nonetheless found one based on the way similar statutes had been construed. The Court did not specify precisely what level of intent the federal government must prove-and explicitly left open the question whether recklessness (a conscious disregard of a known risk that words could cause fear) is enough for the government to prove, or instead whether a higher form of intent such as actual knowledge is needed-but reversed Elonis's conviction and sent the case back to the lower courts because negligence on his part was not adequate to support a conviction under the statute.

EEOC v. Abercrombie & Fitch

Samantha Elauf is a practicing Muslim who regularly wears a headscarf for religious reasons. When she applied for a job at an Abercrombie & Fitch (A&F) retail store, the A&F managers evaluating her candidacy declined to hire her because the wearing of head scarves violates an appearance (or "Look") policy A&F has; employees in retail positions are prohibited from wearing caps and other headwear. Prior to their decision not to hire Ms. Elauf, the A&F managers had internal discussions about her in which one of the managers who had some acquaintance with Ms. Elauf expressed the belief that Ms. Elauf wore headscarves because of her faith.

The Equal Employment Opportunity Commission sued A&F on Ms. Elauf's behalf, alleging that A&F had violated Title VII, which prohibits an employer from deciding not to hire an individual because of the individual's religious observance or practice, unless the accommodating the observance or practice would create an undue hardship for the employer. A&F argued, and the Court of Appeals for the Tenth Circuit agreed, that A&F should not be liable because "ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant . . . provides the employer with actual knowledge of his need for an accommodation."

The Supreme Court reversed. Justice Scalia, calling this a "really easy" case when he delivered the decision from the bench, authored the majority opinion which said a Title VII plaintiff need not show "actual knowledge [by the employer] of a conflict between an applicant's religious practice and a work rule," because requiring such actual knowledge would involve the Court "add[ing] words to the law to produce what is thought to be a desirable result [. . . , which] is Congress's province." He went on: "We construe Title VII's silence [as to the requirement of actual knowledge] as exactly that: silence."

But Justice Scalia did say that a Title VII plaintiff like Ms. Elauf had to show the employer's adverse action against the applicant was based at least in significant measure on a motive to avoid the religious accommodation. But how can an employer be acting based on a motive to avoid accommodating an applicant's religion practice-"because of" an applicant's religious observances, in the language of Title VII-if the employer doesn't know that the applicant's conduct requiring an accommodation is itself religiously based? Justice Scalia acknowledged, in an important footnote, that it "is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice," but that issue need not be decided in the A&F case because it has not been briefed by either side and because A&F "knew or at least suspected that the scarf was worn for religious purposes." Oddly enough, then, the majority opinion technically holds open the possibility that an employer who had no clue that a prospective employee's likely non-compliance with a work rule was religiously motivated could be held liable under Title VII, a result that Justice Alito in his separate concurrence rightly calls "very strange" and "surely wrong."

The Two Cases Taken Together

What can we say about these cases when we look at them in tandem? First, it is interesting that Justice Clarence Thomas is the lone dissenter in both decisions, and that he parted company with Justices Scalia and Alito (with whom he is often aligned as to result) on the interpretation of the federal threats statute and Title VII. Also, Justice Alito wrote separately for himself in both cases, decrying the minimalist nature of the majority's holdings. So, in both Elonis and Abercrombie & Fitch, Justice Scalia, Justice Thomas, and Justice Alito each had a different take from one another.

Second, both majority opinions conclude that Congress had not fleshed out in the text of the statute in question a requirement as to the defendant's subjective knowledge, but the Court reacted to that absence differently in the two cases. In Elonis, the Court said that because the statute is a criminal one, a wrongful state of mind on the part of the defendant should be found in the statute even when Congress was silent. But in Abercrombie & Fitch, Justice Scalia's majority opinion insists (to the extent that one can separate motive from knowledge) that Congress's silence as to the level of knowledge required of employers before they can be held liable is not something to be fixed by courts. The more ambitious attitude by the Court in the context of a criminal statute makes sense; there are special rules of statutory construction that apply particularly to laws that impose criminal sanctions.

But, and this is a third point, the criminal nature of the statute in Elonis might have properly led the Court to want to provide more notice to lower courts and potential defendants about precisely what level of subjective knowledge concerning the fear-inducing nature of words is required; the criminal law setting usually calls for clearer notice to be given to potential offenders. In particular, the disinclination by the Elonis majority to weigh in on whether recklessness by a defendant-e.g., a defendant who fleetingly wonders whether his proposed speech might cause fear in others but who never forms a view on the likelihood fear will in fact ensue-is sufficient under the statute, while perhaps understandable given absence of explicit lower court consideration of this matter, is sub-optimal. And, of course, because many statutes that criminalize threats are state statutes instead of federal laws, the question of whether and how the First Amendment requires government to prove any particular mental state of a defendant before criminal punishment may be imposed remains one on which the Supreme Court will need to give guidance. Indeed, in an earlier column I wrote previewing Elonis, I noted that it may not have been a good case in which to grant review precisely because the statutory ground could complicate the ability of the Court to give needed constitutional guidance. If this happened (as it did), I observed, the Court "would still need to rule in a later case on whether the First Amendment requires subjective intent (in the context of a federal or state statute that clearly does not require it.)"

The absence of guidance to lower courts and litigants in Abercrombie & Fitch is also quite frustrating, even though criminal liability was not at issue. On the facts of the Abercrombie & Fitch case, the employer "knew-or at least suspected-that the scarf was worn for religious purposes." But the tougher situation arises when the employer doesn't actually know but perhaps should be encouraged to find out, prior to declining to hire someone. For example, what if the A&F managers had no personal knowledge of Ms. Elauf during the interview process, but noted that she wore a head scarf and said to themselves, "Gee, I wonder if that is a style statement or a religious practice?" (In some respects, that could be thought of as "recklessness" but not knowledge on the part of the employer.)

Would the fact that the possibility of religious motivation even occurred to the employer be enough to trigger a requirement that the employer investigate the basis of the practice? Or would imposing such a duty on employers cause them to invade the religious privacy of employees and job applicants? (Courts in other countries that take religious liberty seriously often focus on religious privacy more than do American courts.) I do not know the answer to this, but I would observe that minority religious practices are often less well-known to many employers, a fact which might argue in favor of requiring employers to do some diligence once the possibility of a religiously inspired practice occurs to an employer. As for respecting privacy, there may be sensible ways to avoid making applicants feel uncomfortable. For example, all prospective employees could be given a list of all the employer's work rules and then asked, as a matter of course, whether religious practices would require accommodations with respect to any such rules. But this precisely the kind of detail the majority in Abercrombie & Fitch did not want to wade into. The reason it was a "really easy" case for the Court is that the Justices shied away from the difficult matters that actually needed some clarification.

June 1, 2015

Opinion analysis: Court rejects removal based on misdemeanor drug paraphernalia conviction

Cross-posted from SCOTUSblog.

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

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

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

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

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

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

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

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

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