December 23, 2015

Dodge and Elmendorf Publish in Columbia Law Review

The December issue of the Columbia Law Review is out, and two of its scholarly articles come from King Hall faculty: William S. Dodge and Christopher S. Elmendorf.

Professor Dodge's article is International Comity in American Law. Abstract: "International comity is one of the principal foundations of U.S. foreign relations law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comity-from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to the doctrines limiting adjudicative jurisdiction in international cases; and from a foreign government's privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Yet international comity remains poorly understood. This Article provides the first comprehensive account of international comity in American law. It has three goals: (1) to offer a better definition of international comity and a framework for analyzing its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge the myths that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch."

Professor Elmendorf's article (with Douglas M. Spencer) is Administering Section 2 of the Voting Rights Act After Shelby County. Abstract: "Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform section 2 so that it fills much of the gap left by the Supreme Court's evisceration of section 5. The proposed reformation of section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in section 2 cases; and second, that the courts have authority to regularize section 2 adjudication by creating rebuttable presumptions. Most section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases - each relying on data from a different set of elections - are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of section 2 litigation. This approach would also reduce the dependence of vote dilution claims on often-unreliable techniques of ecological inference and would make coalitional claims brought jointly by two or more minority groups much easier to litigate."

Congratulations on these prestigious placements, Professors Dodge and Elmendorf!

December 22, 2015

Trump's Idea on Muslims Fails, Despite Precedent

Cross-posted from The National Law Journal.

Donald Trump's immigration proposals, if you can call them that, are short on details but long on controversy. The presidential candidate kicked off his campaign by labeling immigrants from Mexico as criminals who should be removed in a mass deportation campaign akin to the now-discredited "Operation Wetback" - the U.S. government's official name for the campaign - in 1954.

Once again stirring the pot, Trump recently called for a blanket prohibition on all Muslim noncitizens from entering the United States. That would include temporary visitors, such as university students, as well as noncitizens seeking to become lawful permanent residents as spouses of U.S. citizens.

From a legal standpoint, the constitutionality of the race- and religion-based prescriptions endorsed by Trump is uncertain. Some legal scholars, including Temple Peter Spiro in The New York Times, have suggested that there is a legal basis for Trump's call for an end to Muslim immigration to the United States.

The U.S. Supreme Court's 1889 decision in The Chinese Exclusion Case created what is known as the "plenary power" doctrine, which immunizes from constitutional review the substantive immigration decisions of Congress and the executive branch. That doctrine allowed for the court to uphold the immigration law venomously known as the "Chinese Exclusion Act," whose very name stands as a monument to one of our darkest chapters in immigration history. Now discredited as discriminatory and based in racial animus, the act was designed to exclude Chinese immigrants from the United States. The laws were extended to bar immigration from much of Asia.

The Supreme Court has yet to overrule the plenary-power doctrine and the Chinese Exclusion Case. Many observers, however, believe that it is only a matter of time until the Supreme Court brings immigration law into the constitutional mainstream. Several indicators support that assessment. The court in recent years has rarely mentioned the plenary-power doctrine in its immigration decisions and, at times, has even stretched to ensure that noncitizens have the opportunity for some kind of judicial review of immigration decisions.

True, the Supreme Court has not revisited the Chinese Exclusion Case and, as lawyers and law professors like to say, it remains "good law." However, the court has not had a chance to revisit the precedent.

Political sensibilities have changed so much that Congress has not passed such a bold proposal to ban, for example, the admission of Muslim noncitizens to the United States. Nor has the executive branch expressly targeted Mexican immigrants, as Donald Trump seemingly would, for removal.

In recent years, despite serious concerns about terrorism, no political leader has sought the kinds of overbroad immigration restrictions that Donald Trump has endorsed. Consider that after Sept. 11, 2001, when the nation understandably was tense and fearful, the Bush administration pursued a "special registration" program.

Known as the National Security Entry-Exit Registration System, it required the registration of certain noncitizens, focusing almost exclusively on noncitizens from nations populated predominantly by Muslims. Registration included fingerprinting and photographing as well as interviews. Noncitizens who registered were required to provide detailed information about their plans and to update federal authorities of a change in plans. They were only permitted to enter and depart the United States through designated ports of entry.

Several courts of appeals rejected constitutional challenges to the special registration program but the cases never were taken up by the Supreme Court. Still, the courts took the challenges seriously and found that the U.S. government's actions in response to real national security concerns were rational.

Special registration was criticized in many circles. Still, it is a much more modest and narrowly tailored response based on nationality to concerns with terrorism than Trump's call for the ban on all Muslims. That those measures withstood judicial review should not be read as suggesting that a ban on Muslim migration might pass constitutional ­muster.


The nation has come a long way in terms of racial, ethnic and religious sensibilities since the days of Chinese exclusion and Operation Wetback. It is difficult to believe that the courts today would uphold a ban in Muslim migration to the United States - national security concerns or not. Applying minimal judicial review, the Roberts Court would likely find that Trump's proposal lacked a rational basis and thus was unconstitutional.

In the end, while Trump's bombastic attacks on immigrants might make political hay, one can hope that the American legal system has evolved to a point where anti-immigrant horror stories such as the Chinese Exclusion Act are parts of our history, not present.

December 21, 2015

Top 10 Immigration Stories of 2015

Cross-posted from ImmigrationProf Blog.

Immigration was in the news last year. Here are my top 10 immigration stories of 2015.

1.  Donald Trump  

How could Donald Trump not be the top immigration story of 2015? He said things about immigrants and immigration that had not been heard from mainstream political candidates for generations.

As the Republican front-runner in the race for the presidency, Trump consistently took extreme positions on immigration, beginning with a focus on Mexican immigrants as criminals, even going so far as to call for a revival of the 1954 "Operation Wetback,"  and later moving to target Muslims (and here) and their families.  Even when criticized, Trump generally refused to back down.

The Trump had quite an impact on popular culture as well as political news, including an appearance on Saturday Night Live and inspiring Donald Trump piñatas.

2. Syrian Refugees

Civil war fueled mass migration from Syria, which generated significant concern throughout Europe.  Some nations, such as Hungary, were less welcoming than others, like Germany. The large numbers of persons fleeing Syria contributed to the mixed responses. The picture of a young Syrian boy who died in his effort to reach safety tugged at the heartstrings and brought home the human reality of what was at stake.

The vetting process for refugees coming to the United States provoked discussion and concern

3. President Obama, Deferred Action 2014, and the Supreme Court

Why is this man smiling?  The challenge of 26 states to President Obama's 2014 expanded deferred action program in Texas v. United States was clogged up in the courts for the year, with the Supreme Court now considering possible review.  In November, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court's preliminary injunction putting the new program on hold.

2015 was the third anniversary of the Deferred Action for Childhood Arrivals program.

4. Immigration and the Presidential Campaign

Donald Trump is only one of the presidential candidates. Immigration so far has been a prominent issue for both the Democrats and Republicans. Generally speaking, Democrats were moving left on immigration while Republicans veered right.

The Republican debates (and here) were fascinating from an immigration perspective, with each candidate seeking to be tougher than the next one.

Democrats also sparred on immigration Hillary Clinton voiced support for comprehensive immigration reform and to do more on immigration than President Obama did.  Although its took him a while, Democratic insurgent Bernie Sanders took a firm position in support of comprehensive immigration reform and a "fair and humane immigration policy."  On life support in the polls, Maryland former Governor Martin O'Malley had a detailed and pro-immigration program laid out from the beginning of his candidacy and may be the most pro-immigration candidate.

5. Terrorism, San Bernadino, Paris, Etc.

Terrorist acts resulting in mass death in sleepy San Bernadino, California and in urbane Paris, France grabbed worldwide headlines. The woman involved in the San Bernadino violence entered the United States on a fiancé visa; two Senators demanded more information about her immigration records. In Paris, one of the terrorists was a refugee.

The involvement of Muslim immigrants in both terrorist incidents led to a focus on background checks in immigration and refugee processing. It provoked Donald Trump to float the idea of a temporary ban on all Muslim migration to the United States.  

6. A Tragic Killing in San Francisco

Last summer in San Francisco, a repeat criminal (and immigration) offender in the nation unlawfully was released by the San Francisco Sheriff's office as required by the city's "sanctuary ordinance."   He has been charged with killing a young woman named Kate Steinle. The national reaction was swift, putting undocumented immigration in the spotlight.  One result was a political attack on state and local "sanctuary laws" and a national outpouring of concern.

7.  China Becomes the Number One Immigrant Sending Country, More Mexicans Now Leave than Come to the United States.

This story did not make as big of a national splash as it should have. A Pew Research Center study found that more Mexicans left than came to the United States from 2009-14.  And China became the top country sending legal immigrants to the United States.  The changing immigration demographics will no doubt influence future immigration concerns and law and policy responses.  

8. The Immigration Act of 1965 Turns 50

In 1965, President Lyndon Johnson signed into law the Immigration Act of 1965, which abolished the discriminatory national origins quotas system and eliminated the last vestiges of the invidious Chinese Exclusion laws. At the same time, through a new Western Hemisphere ceiling, the Act began a process of tightening immigration from Mexico and all of Latin America, which has led to the undocumented population in the millions from Mexico and Latin America that we have today.  Most scholarly studies of the 1965 Act focus on its benefits to opening immigration from Asia but fail to consider the restrictive impacts on migration from Mexico and Latin America. Jack Chin and Rose Villazor have edited a wonderful book on the Immigration Act of 1965 that offers a rich and complex study of its benefits and costs. 

9. The Pope Visits the United States

As an aside, it seems much more natural to me to refer to Pope Francis as "the Pope" than to call Donald Trump "the Donald." In any event, the Pope visited the United States and inspired the nation by calling for decent and respectful treatment of immigrants.  In a wonderful moment, Sophie Cruz, the daughter of undocumented immigrants, runs out to greet the Pope as his motorcade traveled the streets of Washington, D.C.

10. Miscellaneous

There were many other news items that I could mention but none were earth-shattering. Although perhaps interesting to immigration law professors, the Supreme Court's immigration decisions were not blockbusters.  Convicted of the 2013 Boston bombing, Dzhokhar Tsarnaev, whose family from Chechnya had been granted asylum, was given the death penalty for his role in the act.  Last but not least, Loretta Lynch was confirmed as the new Attorney General of the United States.


December 19, 2015

Tax Law Scholarship by Professor Ventry among Most-Downloaded

Our friends at TaxProf Blog have published a ranking of tax law professors by the number of scholarly paper downloads from the Social Science Research Network (SSRN) database.

Our own Professor Dennis Ventry ranks among the Top 25 most-downloaded of all time.

Dennis Ventry is an expert in tax policy, tax administration, legal and professional ethics, and U.S. economic and legal history. He is the author of dozens of articles, book chapters, and an edited volume. Professor Ventry is regularly cited in both the tax press and popular media for his expertise on the effects of taxation on the U.S. economy and society.

Congratulations, Professor Ventry!

December 17, 2015

New UC Center Serves a Most Vulnerable Student Population: A New Trend in Higher Education?

I authored an essay that appears in the current edition of Hispanic Ourlook in Higher Education magazine. I wrote about the challenges in launching the new University of California Undocumented Legal Services Center and the unique legal needs of undocumented college students and their families.

Undocumented Legal Services Center staff members meet to discuss cases: Legal Fellow David Gomez, Legal Fellow Desiree Fairly, and Executive Director María Blanco.

An excerpt:

Over the last year, the University of California has been constructing a form of student services never before seen in higher education. In building the University of California Undocumented Legal Services Center, UC is demonstrating how it truly can be on the cutting edge in serving students and the greater community.

Announced last November by the UC President Janet Napolitano, the new center has already begun serving the unique legal needs of undocumented students. Housed at the UC Davis School of Law, home of a well-established Immigration Law Clinic and leading immigration law scholars, the center serves undocumented students and their families on UC campuses without a law school. The campuses - Merced, Riverside, San Diego, San Francisco, Santa Barbara, and Santa Cruz - are spread throughout the Golden State.

The student need is clear. Many of them are eligible for deferred action or other types of immigration relief that stabilizes their daily lives and, as a result, helps to improve their academic success. The idea behind extending services to the families of undocumented UC students involves a well-researched phenomenon: students are in a better position to excel in their studies if their families are not at risk of removal.

Read the full essay here at Hispanic Outlook in Higher Education magazine.

December 10, 2015

Professor Villazor among Most-Cited Property Law Professors

Our colleages at PropertyProf Blog have compiled a list of the most cited property law professors between 2011 and 2015. Our own Professor Rose Cuison Villazor makes the list of most-cited young scholars (under the age of 50).

For the full list, visit

Congratulations, Professor Villazor!

December 10, 2015

How the Right and the Left Are Getting San Bernardino Wrong

This article originally appeared on The Huffington Post on December 7, 2016.

14 people are dead. 21 are injured.

A young couple armed for battle attacked a Christmas party full of the husband's colleagues. In the face of this nightmare -- both the 355th mass shooting in 336 days in the United States, and one that came less than three weeks after the Paris attacks -- right and left alike are sticking to their scripts rather than grappling with the complex reality. If we are to successfully prevent future massacres, that has to change.

First and foremost, we have to think of the victims and their families.

And then we have to declare all-out war on the political ideology of Islamism that motivated Syed Farook and Tafsheen Malik, while simultaneously standing firm against all attempts to discriminate against Muslims generally. We have to disarm all potential terrorists by toughening up gun control laws and by discrediting the foul ideas that motivate them. (And we have to name those ideas without fear of being labelled politically incorrect. ) The right and the left, more worried about their fight with each other than the fight against terrorism, have made this an either/or choice when it is both/and. We cannot succeed by only doing one of these things or the other.

The right rushed in almost immediately. Twitter was full of smears of all Muslims, President Obama, immigrants, etc. Ann Coulter tweeted: "it's been a 50 year invasion." "Where," shrieked Pamela Geller, "are the programs in mosques and madrassas teaching against jihad? NONE." Are there enough such programs and are they succeeding? No. But, as someone who has spent years traveling the world talking to Muslims, including clergy, who are challenging extremism, I know that this is simply a lie. As the icing on the cake, Marco Rubio now denies that there is any discrimination against Muslims in America.

The left meanwhile, as exemplified by the tepid statements of Democratic candidates -- has only been willing to talk about gun control and has mostly refused to name a key part of the problem in this case -- Muslim fundamentalism or Islamism, a virulent political ideology (which represents the far right of the Muslim political spectrum). That ideology today poses a global threat and is one that many (but not enough) people of Muslim heritage themselves have been fighting against all around the world for years. Hilary Clinton deems it insulting to say "radical Islam." Not saying it, when it represents a reality, is much worse.

The double standards have been stunning. On the right, people who denounced anyone who dared make a connection between the Colorado Planned Parenthood shooter and its own extreme anti-choice discourse were instantly linking the San Bernardino bloodbath to "Islamic" terrorism before there was any evidence other than that the first suspect had a foreign sounding name. On the left, the same people who had instantly (and correctly) recognized the politics of the Planned Parenthood shooting were reticent to admit any connection to terrorism here or to discuss the possible political motivation, even as thousands of rounds of ammunition were being found in the "IED factory" Farook and Malik had in their garage.

The soundtrack to all of this has been a diatribe from the Far Right in the West increasingly suggesting that all Muslims are members of one big sleeper cell and that there is something inherently wrong with this religion, and this religion only. Such views contravene basic tenets of humanism and decency. They also give a powerful weapon both to actual fundamentalists and those who apologize for them by suggesting that the extremists are just fighting an oppressive, imperialist West and defending Muslim interests. Making Muslims into victims, or making them feel like they are, plays into the hands of the fundamentalists who know just how to play that card.

While the Western Right sometimes advocates bigotry and international crimes -- like killing the families of terrorists as Donald Trump appallingly suggests -- in response to Muslim fundamentalist violence, the Western Left often refuses to recognize the reality of that violence and the actual danger posed by its underlying ideology.

They should listen to progressives of Muslim heritage whose words also belie the claims of the Gellers of the world. For example, Algerian anti-extremist activist Cherifa Kheddar, whose own brother and sister were killed by the Armed Islamic Group in 1996, clearly explains that you cannot end jihadist violence without "prioritizing the fight against fundamentalism which makes the bed of jihadism."

A similar point was made by a petition authored by Muslim journalist Mohamed Sifaoui and published last summer in the leftwing and secular French magazine Marianne that was signed by some 2000 people, mostly people of North African, Muslim heritage. "Islamism imposes a war on us and its principle weapon is terrorism, but Islamism also imposes on us a great ideological battle that we must face up to collectively."

In facing up to this very battle, President Obama got some things right in his Oval Office speech though he mainly pledged -- somewhat incongruously -- to continue the same strategy against a threat which has evolved, and emphasized what he would not do. However, he rightly reminded us that Muslim Americans are an integral part of the community. Discrimination is an unacceptable response to terror. Allowing terror suspects to arm themselves inside our borders is not a good idea. And at the same time he insisted that Muslims must confront extremism which is a grave threat and one that has, in fact, taken root in certain quarters, including here in the U.S..

What we need to do now -- rather than giving a forum to self-appointed spokespeople like CAIR who have not led the fight against extremism -- is listen to those who have actually been taking on this very struggle the President referenced. One of those brave people, Ani Zonneveld, the Malaysian American head of Muslims for Progressive Values based in Southern California, wrote to me the day after the San Bernardino slaughter. "You cannot be religious and go out and kill in Islam, and yet again we are witnessing murder in the name of our faith. The fact that guns are easily accessible and there have been more than 355 mass shootings in America to date should be irrelevant to our internal conversation. Our conversation should be why and what is it in our theology that has been so bastardized to give people permission to kill? Until we honestly root this out, we will by default be blamed."

To enable the "rooting out" Ani calls for, the right and the left need to focus on the actual problem and not on each other. They all need to carefully distinguish between Muslims, people of Muslim heritage and immigrants on the one hand, and Islamist extremists on the other. They must be tolerant toward the former who are key allies, and unwaveringly intolerant of the latter. As a necessary first step, they must speak the name of the problem: "Muslim fundamentalism."

The memory of the victims of San Bernardino, and of so many other recent terror attacks around the world, demands nothing less from us today.

December 9, 2015

Rebellious Lawyering to Celebrate the Work of Professor Hing

A two-day conference at UC Hastings will celebrate the work of Professor Emeritus Bill Ong Hing.

May 19 and 20 -- save the date!

Bill is an expert in immigration law and policy, Asian American legal history, civil rights, and much more. Throughout his career, he has pursued social justice by combining community work, litigation, and scholarship. He is founder and continues to serve on the board of directors of the Immigrant Legal Resource Center. He also serves on the National Advisory Council of the Asian American Justice Center and is an advisor to the Black Alliance for Justice Immigration and the Asian Law Caucus. He is the author of numerous academic and practice-oriented books and articles on immigration policy and race relations. His books include Ethical Borders - NAFTA, Globalization and Mexican Migration (Temple Univ. Press 2010), Deporting Our Souls - Values, Morality and Immigration Policy (Cambridge University Press 2006), Defining America Through Immigration Policy (Temple Univ. Press 2004), Making and Remaking Asian America Through Immigration Policy (Stanford Press 1993), Handling Immigration Cases (Aspen Publishers 1995), and Immigration and the Law - a Dictionary (ABC-CLIO 1999). His book To Be An American, Cultural Pluralism and the Rhetoric of Assimilation (NYU Press 1997) received the award for Outstanding Academic Book in 1997 by the librarians' journal Choice.


December 8, 2015

Muslims are to Trump as the Chinese were to President Arthur in 1882

A political cartoon from 1882, showing a Chinese man being barred entry to the "Golden Gate of Liberty". The caption reads, "We must draw the line somewhere, you know."  Courtesy of Wikipedia

Yanan Wang in the Washington Post draws parallels between Donald Trump's call for the prohibition of Muslims from entering the United States and the sordid history of Chinese exclusion.  I was jarred (pleasantly) by her reference in the conclusion to one of my law review articles from 1998:

Trump's call for a "total and complete" ban on Muslims entering the U.S. has received widespread criticism in part because it evokes a history widely considered shameful now, not just in its application to the Chinese but to a succession of ethnic and religious groups lumped together for exclusion at one point or the other: Irish Catholics, Jews, South Asians, Turks and Pacific Islanders, among others.  Enacting such a proposal would mean going back 72 years in U.S. history, to before the Chinese Exclusion Act was repealed by President Franklin Roosevelt in 1943.

In his paper "Race, the Immigration Laws, and Domestic Race Relations: A 'Magic Mirror' into the Heart of Darkness," University of California Davis law school dean Kevin Johnson contended that exclusionary immigration laws are in part reflections of prevailing opinions about racial minorities already settled in the U.S.

"For better or worse," Johnson wrote, "the history of national origin and racial exclusion in U.S. immigration laws serves as a lens into this nation's soul...This phenomenon is not limited to racial minorities, but applies with equal force to other groups who have been excluded from our shores under the immigration laws."

December 3, 2015

A "Harry Potter" Copyright Review Session

Copyright law both incentivizes creative works, such as the bestselling J.K. Rowling "Harry Potter" series, and also governs what fans can do with the works that they grow to love and know so well. Are the handmade Harry Potter-inspired jewelry, t-shirts, and Hogwarts robes for sale on the popular website illegal? What about a Girls Scouts Harry Potter-themed summer camp? What is ETSY's liability for the copyright infringement of the do-it-yourself fan-artists who share and sell their wares on the site?

My copyright course ended today with a final lecture on "fair use" and a Harry Potter-themed review session. I served "butterbeer" to the students (no alcohol, just lots of sugar!). Now the students are ready to confront issues of copyright in a digital age and the rights of users to command the tools of Web 2.0 to share their own views on the cultural works that help form our identities and communities. As I argue in my Yale University Press book, From Goods to a Good Life: Intellectual Property and Global Justice (2012), "It is precisely because culture is so influential in shaping our world and our selves that individual rights to debate it and participate in its remaking are imperative."

Raj as "Mad Eye" Moody, and me as Harry Potter

It was great to see the students dressed up as their favorite characters -- including Raj Pai, chair of the King Hall Intellectual Property Law Association (KHIPLA), as Professor "Mad Eye" Moody!