October 3, 2017

Aoki Center Screens 'Cruz Reynoso: Sowing the Seeds of Justice'

The Aoki Center for Critical Race and Nation Studies presented a screening of Cruz Reynoso: Sowing the Seeds of Justice, filmmaker Abby Ginzberg's documentary on the life of Professor Emeritus Cruz Reynoso, at King Hall on September 26. 

The film presents the story of Professor Reynoso's life and career as it intersects with key moments in the history of California and the nation, including the fight for legal services for farm workers during the 1970s, the 1986 political campaign by death penalty advocates against Reynoso and two other California Supreme Court justices, and the U.S. Commission on Civil Rights' investigation of voting irregularities in Florida during the 2000 Presidential election. 

A member of the UC Davis School of Law faculty since 2001, Professor Reynoso was awarded the Presidential Medal of Freedom, the nation's highest civilian honor, in 2000 by President Bill Clinton in recognition of his "compassion and work on behalf of the downtrodden." 

The screening was part of the Aoki Center's Fall 2017 Interdisciplinary Research Seminar Series. To view a trailer for the film click here.

 

October 2, 2017

Travel Ban 3.0: Legalese Cannot Mask a Harsh and Misguided Policy

By Raquel Aldana, Associate Vice Chancellor for Academic Diversity and Professor of Law, UC Davis

[Cross-posted from UC Davis Equity and Inclusion Blog]

On Sunday September 24, 2017, while President Trump artfully distracted the nation by feuding with NFL football players over their First Amendment right to protest racial injustice in the United States, the White House released a Presidential Proclamation Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorist or Other Public-Safety Threats. This new travel ban ("travel ban 3.0") replaces the previously revised travel ban issued March 6 (Executive Order 1380; Protecting the Nation from Foreign Terrorist Entry into the United States), which was due to expire that same night. Travel ban 3.0 has not received as much media attention or public consternation as the original travel ban. However, its harms, which are now indefinite, remain largely unchanged for five of the six predominantly Muslim nations included in the original travel ban (Iran, Libya, Syria, Somalia, and Yemen) while three new nations (Chad, North Korea, and Venezuela) are added to the list.

On its surface, travel ban 3.0 appears to draw careful distinctions in the degrees of travel restrictions imposed on each of the eight nations based on alleged differences in the security risks presented by each. However, with the exception of Venezuela, the most important fact is that travel ban 3.0 indefinitely bars nationals from all of the seven remaining nations from permanent immigration into the United States. No careful "tailoring" as the government claims, can hide this harsh reality. Moreover, six of the targeted nations (Iran, Chad, Libya, Syria, Somalia, and Yemen) are predominantly Muslim. Not unlike the previous two travel bans, travel ban 3.0 hurts predominantly Muslim U.S. families, Muslim refugees, and the entire U.S. economy with highly questionable national security gains.

Permanent immigration into the United States occurs largely for three primary reasons: to promote family unification between foreigners and U.S. citizens or lawful permanent residents, to recruit workers that Congress deems contribute to the U.S. economy, and to provide protection from persecution to refugees and asylum seekers. In 2015, the last year for which the government has provided official data on permanent immigration into the United States, over 20,000 permanent immigrants from these seven nations (the largest numbers from Iran, Syria, and Yemen) arrived in the United States to unify with spouses, children, parents or siblings, to begin gainful employment, often after completing programs of study in the United States, or to escape horrific repression.[1] Moreover, as of 2012, nearly 800,000 persons living in the United States come from countries affected by the ban, representing 2% of all foreign-born immigrants in the country.[2] With travel ban 3.0, potentially hundreds of thousands of U.S. families, some who have waited in backlogged immigration lines for years, confront the possibility of an indefinite separation from their loved ones. Moreover, in violation of our moral obligation and international and domestic legal commitments, under travel ban 3.0, the United States turns its back indefinitely on tens of thousands more refugees.

Travel ban 3.0 did ease some of the previously imposed travel bans in puzzling ways. Only two of the eight nations, North Korea and Syria, face an indefinite bar for both permanent and temporary immigration to the United States. Venezuela is a unique case because the ban on travel applies only to certain government officials. Somalia is also a unique case because temporary immigration is not suspended but rather subjected to additional scrutiny. For the remaining nations, the odd tailoring of restrictions or exceptions to the restrictions will largely mean that some temporary migration will be allowed to come in from each of these countries except for temporary visitors on business or as tourists. For Iran, the ban on temporary migration is even broader exempting only student categories. This begs the obvious question as to why the Trump administration considers it possible to contain the purported national security risks of travel for temporary migrants, who usually come to the United States in much greater numbers than permanent immigrants, while imposing more extreme measures to permanent immigration.

Universities across the country may view as positive that travel ban 3.0 lifts the student visa restrictions on most of the countries affected in the prior travel ban, including Iran. Students from North Korea and Syria, however, are indefinitely banned as students, while Somali students could still face undue restrictions. More importantly, however, travel ban 3.0 leaves intact the barriers that would significantly deter many foreign students, not only those who come from the nations directly affected, from choosing to study in the United States. Already, students from Chad, Libya, and Yemen are indefinitely banned from seeking permanent legal employment in the United States once they finish their studies while students from Iran are indefinitely banned from both temporary and permanent lawful employment in the United States. This significantly reduces the economic incentives for these students to choose their studies in the United States and it robs us of the opportunity to reap the benefits of a U.S. educated workforce. More importantly, the ban signals to these foreign students that they are considered security risks to our nation and are not wanted. Why should foreign students spend tens of thousands of dollars to study in a nation hostile to them and their contributions? Who among them is going to be targeted next?

More than a million international students currently study on U.S. college campuses, contributing nearly $36 billion to the U.S. economy.[3] From the targeted countries, Iran and Venezuela feature among the top 25 sending nations, and together comprise more than 20,000 students nationwide.[4] At UC Davis, our student population from the affected nations is fewer than 100, with the largest share comprised of students from Iran. These students are feeling targeted, isolated, and scapegoated. Each one of them, however, is a valuable member of our community. Their presence on this campus makes us a better university and enhances our understanding of shared or even different values, culture, religion, and ideas. Our shared spaces allow us to grow in respect for one another. U.C. Davis students and scholars affected by travel ban 3.0 can find support at UC Davis Services for International Students and Scholars. UC Davis remains committed to supporting and welcoming students and scholars regardless of citizenship or place of birth.

Travel ban 3.0 may have both delayed and muddled the legal challenges to the prior travel bans but it should not alter our moral indignation against the policies. The legal challenges to the prior travel bans relied on President Trump's virulent anti-Muslim rhetoric to make a compelling case of the religious animus motivating the ban. The inclusion of Venezuela and North Korea in travel ban 3.0 could make this claim harder, particularly when immigration law's exceptionalism already grants the President wide discretion to violate fundamental rights even of U.S. citizens directly affected by the ban (e.g., those who can assert a "bona fide" relationship to nationals from the banned countries). Law, however, cannot always provide the right answers. We must also be guided by our values, our humanity, and our common sense. Travel ban 3.0 remains essentially an anti-Muslim prohibition. It must also be understood in the context of a broader anti-immigrant agenda, which also targets other communities of color. This includes the recent immigration raids, DACA's rescission, cuts in refugee admissions, and legislative proposals like the RAISE ACT which proposes major cuts to family immigration, which predominantly originates from Mexico, China, India and the Philippines. The national security justification for the ban has great appeal, but it is misguided. Since September 11, 2001, a vast majority of the perpetrators of terrorist attacks came from countries not listed in the ban, and many were born in the United States.[5] Security experts particularly puzzle over Chad's inclusion since Chad has been an ally in the fight against terrorism.[6] Careful consideration must be given to how and whether immigration controls are necessary to improve U.S. security. However, indiscriminate immigration bans against entire nations are unlikely to make our nation safer. They will certainly, however, make us a less diverse and inclusive nation.

 


[1] Department of Homeland Security, 2015 Yearbook of Immigration Statistics, Table 10: Persons Obtaining Lawful Permanent Resident Status By Broad Class of Admission and Region and Country of Birth.

[2] Mona Chalabi, "How many US immigrants come from Trump's seven banned countries?" The Guardian (28 January 2017); Ford Fessenden, Jasmine C. Lee, Sergio Pecanha and Anjali Singhvi, "Immigrants from Banned Nations: Educated, Mostly Citizens and Found in Every State," New York Times (30 January 2017).

[3] Karin Fischer, "International Students Dodge Trump's Partly Reinstated Travel Ban, but Concerns Persist," Chronicle of Higher Education (26 June 2017).

[4] Id.

[5] Ford Fessenden, Jasmine C. Lee, Sergio Pecanha and Anjali Singhvi, "Immigrants From Banned Nations: Educated, Mostly Citizens and Found in Every State," New York Times (30 January 2017).

[6] Helene Cooper, Michael D. Shear and Dionne Searcey, "Chad's Inclusion in Travel Ban Could Jeopardize American Interests, Officials Say," New York Times (26 September 2017).

October 2, 2017

Corporate Liability for Human Rights Violations: A Preview of Jesner v. Arab Bank, PLC

By William Dodge

[Cross-posted from Just Security]

On October 11, the U.S. Supreme Court will hear oral argument in Jesner v. Arab Bank, PLC on the question whether corporations can be sued for human rights violations under the Alien Tort Statute (ATS). This will be the second time the question of corporate liability has come before the Court. In 2011, the Supreme Court granted cert to consider the same question in Kiobel v. Royal Dutch Petroleum Co., but after oral argument the Court asked for additional briefing on the geographic scope of the ATS cause of action. Ultimately, the Supreme Court affirmed dismissal of the claims in Kiobel on the ground that they did not "touch and concern" the United States with sufficient force to displace the presumption against extraterritoriality. The Court did not reach the question of corporate liability under the ATS, leaving the Second Circuit's categorical rule against such liability intact.

Victims of terror attacks in Israel, the West Bank, and Gaza-both U.S. citizens and non-U.S. citizens-alleged that Arab Bank knowingly funneled millions of dollars through its New York branch to finance these attacks and reward the families of suicide bombers. The U.S.-citizen plaintiffs sued under the Antiterrorism Act (ATA), while the non-U.S.-citizen plaintiffs sued under the ATS. In the ATA suit, the district court found that Arab Bank knowingly provided financial services to persons that it knew to be terrorists. In the ATS suit, the district court dismissed, and the Second Circuit affirmed the dismissal, on the sole ground that under circuit precedent ATS cannot be brought against corporations.

The arguments in Jesner fall into three groups:

1) whether customary international law permits corporate liability;

2) whether, as a matter of U.S. domestic law, the ATS cause of action should be interpreted to permit corporate liability;

3) whether the case against Arab Bank should be dismissed on some other ground.

Whether Customary International law Permits Corporate Liability

Whether customary international law permits corporate liability is in some sense the threshold question, because the ATS gives federal courts jurisdiction over actions "by an alien for a tort only, in violation of the law of nations or a treaty of the United States." In Kiobel, the Second Circuit held that corporations could never be held liable under the ATS because there is no "norm of corporate liability under customary international law." The Second Circuit relied heavily on the fact that international criminal tribunals from Nuremberg to the ICC had been given jurisdiction only over natural persons. 

The detailed analysis in the amicus brief of Nuremberg Scholars, however, shows it was understood at Nuremberg that juridical persons could violate international law and be held legal accountable for doing so. The amicus brief filed by Ambassador David Scheffer, who led the U.S. delegation in the negotiations that established the ICC, explains that corporations were excluded from the Rome Statute because of a lack of consensus on criminal, rather than civil liability, which posed problems under the ICC's principle of complementarity. The amicus brief filed on behalf of International Law Scholars argues more generally that limitations on the jurisdiction of particular courts are not limitations on customary international law norms themselves. It explains that customary international law prohibits violations of fundamental human rights but leaves it to nations to enforce such norms-collectively through mechanisms like international criminal tribunals and suppression conventions, and individually through their own domestic laws. (Full disclosure: I am counsel of record for the International Law Scholars.)

The amicus brief filed by the United States agrees that international law "establishes substantive standards of conduct but generally leaves each nation with substantial discretion as to the means of enforcement within its own jurisdiction." The United States adds that the norms actionable under the ATS, like torture, genocide, and war crimes, "neither require nor necessarily contemplate a distinction between natural and juridical actors." The amicus brief of the Yale Law School Center for Global Legal Challenges fleshes out the latter point, showing that eight customary international law prohibitions-genocide, crimes against humanity, financing terrorism, torture, extrajudicial killing, war crimes, slavery, and piracy-both meet the Sosa-standard for actionable norms under the ATS and extend to corporations. And the amicus brief of Canadian International and National Security Law Scholars elaborates on financing terrorism as a violation of international law.

Respondent Arab Bank and the amicus brief filed by the Chamber of Commerce do little to meet these arguments, largely limiting themselves to repeating what the Second Circuit said in Kiobel. The amicus brief filed on behalf of Professors of International Law, Foreign Relations Law, and Federal Jurisdiction makes an additional argument that the ATS should be limited to claims for violations of international law that, if left unaddressed, might give other countries just cause for war against the United States. This argument finds no support in the text of the ATS, however, which refers without limitation to torts "in violation of the law of nations or a treaty of the United States." This argument also fails to account for piracy, which the Supreme Court recognized in Sosa v. Alvarez-Machain as one of the three paradigm offenses the ATS was intended to address and which (unlike violations of safe-conducts and infringement of the rights of ambassadors) would not have given other countries cause for war if left unaddressed.

Whether the ATS Cause of Action Should Permit Corporate Liability

Whether the ATS cause of action recognized in Sosa v. Alvarez-Machain should apply to corporations as a matter of U.S. domestic law is a separate question from whether customary international law permits it to do so. Petitioners note that while the language of the ATS limits potential plaintiffs to aliens, it does not limit potential defendants in any way. Petitioners also argue that the ATS's use of the word "tort" supports corporate liability because tort actions could presumptively be brought against corporations both at the time the ATS was enacted and today. And petitioners note the history of holding entities like ships directly responsible for piracy, one of the paradigm violations of the law of nations that the ATS was intended to reach. Amicus briefs filed by Professors of Legal History and by Procedural and Corporate Law Professors discuss the liability of juridical entities at the time the ATS was enacted and today.

In Sosa v. Alvarez-Machain, the Supreme Court suggested that it would look for "legislative guidance" in shaping the federal-common-law cause of action under the ATS. Petitioners note that most federal statutes authorize corporate liability. But they point in particular to the ATA-the statute that U.S.-citizen plaintiffs successfully used to sue Arab Bank-which creates a cause of action for victims of terrorism and, like the ATS, does not distinguish between corporations and natural persons as defendants. Respondent Arab Bank, on the other hand, argues that the Supreme Court should look for guidance to the Torture Victim Protection Act (TVPA), which Congress passed in 1992 to create an express cause of action for torture and extrajudicial killing. In Mohamad v. Palestinian Authority, the Supreme Court held that Congress limited liability to natural persons by using the word "individual," a word not found in the ATS.

The amicus brief filed by the United States agrees with petitioners that the ATS cause of action should reach corporate defendants. The United States notes that the TVPA is expressly limited to natural persons by virtue of the word "individual," while the ATS does not distinguish among classes of defendants. The United States also points to the long history of corporate tort liability in England and the United States. Finally, the United States notes the early understanding that corporations could be plaintiffs under the ATS and that excluding corporations as defendants would be in "considerable tension" with that understanding.

The last point suggests a more general reason why the Supreme Court may be reluctant categorically to exempt corporations from ATS claims. The Court has been criticized in recent years for extending the rights of natural persons to corporations in cases like Citizens United v. FEC. Whether or not such criticism is justified, it would certainly seem odd to many Americans to say that corporations can have the rights of natural persons but cannot be held liable like natural persons when they violate human rights.

Other Grounds

Respondent Arab Bank argues that if the Supreme Court overturns the Second Circuit's categorical prohibition of ATS suits against corporations, it should affirm dismissal of the claims in this case on other grounds because of the harm this case is causing to Jordan and by extension to U.S. foreign policy in the Middle East. This is an argument seconded in various ways in amicus briefs filed by the Kingdom of Jordan, the Central Bank of Jordan, the Union of Arab Banks, the Institute of International Bankers, and Former State Department Officials. On the other hand, Senators Sheldon Whitehouse and Lindsey Graham, Former Counterterrorism and National Security Officials, and Financial Regulation Scholars argue that civil liability for terrorist financing is essential to combatting terrorism.

As for specific alternative grounds, Arab Bank argues that routing wire transfers through New York is not sufficient to satisfy Kiobel's "touch and concern" test, that deciding the case "would force federal courts to wade into profoundly sensitive foreign-policy issues," and that financing terrorism is not an actionable violation of customary international law under the Sosa standard. The United States also suggests that routing wire transfers through New York may not be sufficient to meet the "touch and concern" test in ATS cases, though its brief cautions that "the government could potentially rely on such activity as the basis for a criminal indictment or civil enforcement action." To prevent prolonging the suit, the United States suggests that the "touch and concern" issue should be resolved directly by the Second Circuit on remand. Petitioners simply argue that the other grounds raised by Arab Bank should be handled by the lower courts on remand under the ordinary procedures of appellate review.

Arab Bank's heavy emphasis on other grounds might make one doubt its confidence in its arguments with respect to corporate liability. But if the Supreme Court were to reverse the Second Circuit's categorical ban on corporate liability in ATS suits, Arab Bank would still have a number of ways to argue that this particular suit should be dismissed. More generally, as I have explained elsewhere, ATS suits against corporations will continue to face a number of significant challenges, from establishing personal jurisdiction, to meeting the mens rea standard for aiding and abetting liability, to satisfying Kiobel's "touch and concern" test. Sosa also raised the possibility of "case-specific deference to the political branches" if the State Department files a statement of interest addressing foreign policy concerns, something it has not done in Jesner.

Four years ago, in Kiobel, the Supreme Court did what Arab Bank now suggests. It avoided the corporate liability question and resolved the case on other grounds. The circuit split that the Court preserved is now six years old. Every other circuit to have addressed the question has concluded that the Second Circuit is wrong.  Rather than duck the question again and have to grant cert for a third time, the Supreme Court should take this opportunity to decide whether the ATS categorically forecloses corporate liability.

July 21, 2017

“What Trump Can Teach Us about Con Law”: Podcast by Professor Elizabeth Joh

Professor Elizabeth Joh is co-hosting a podcast, “What Trump Can Teach Us about Con Law,” that quickly shot to the top of the iTunes charts. Produced by Professor Joh with Roman Mars, host and creator of the independently produced podcast “99% Invisible,” the podcast aims to “take the extreme actions of the President of the United States and channel that chaos into learning our Constitution like we never have before.”

In the introductory episode, Mars said that the show was inspired by one of Professor Joh’s Twitter messages: “Teaching Constitutional Law in 2017 means glancing at twitter every five minutes before class.” 

Joh explains that Constitutional Law is an important course, but one that can be somewhat dry. As of late, the subject has taken on a sense of urgency, as the President’s actions have raised new and challenging constitutional law issues.

Mars proposed creating a podcast based on Joh’s observations, and the result has been “What Trump Can Teach Us about Con Law,” which launched June 7 and quickly rose to the top of the iTunes “Top Podcasts” list. (The podcast was No. 2 on the iTunes charts the following week.)

“I like this idea that maybe we have a president who is kind of stress-testing the Constitution, really giving us a sense of ‘What are the limits of each of the different provisions that he seems to be challenging?’” said Joh.  “That’s really important because it’s forcing us to think about things and wonder, ‘Do we have answers to some of these questions?’”

July 5, 2017

Senior Associate Dean and Professor Madhavi Sunder Appointed to Daniel J. Dykstra Endowed Chair

Madhavi Sunder, an influential scholar of law and culture and Senior Associate Dean for Academic Affairs, has been appointed as the Daniel J. Dykstra Endowed Chair at UC Davis School of Law.

Sunder joined UC Davis School of Law in 1999 and was elevated to Senior Associate Dean in 2015. She was named a Carnegie Scholar in 2006 and has been a Visiting Professor of Law at Yale Law School, the University of Chicago Law School, and Cornell Law School. Her work traverses numerous fields, from intellectual property to human rights law and the First Amendment. She has published in leading law journals including the Yale Law Journal, California Law Review, and Texas Law Review, among others. Her article "IP3," published in the Stanford Law Review in 2006, ranks among the top 25 most-cited Intellectual Property articles of the last decade and as the No. 1 most-cited International IP article of the past five years. Her book, "From Goods to a Good Life: Intellectual Property and Global Justice," was published by Yale University Press in 2012.

"Dean Sunder is a world-class scholar whose work addresses some of the most important issues in contemporary society: technology, intellectual property, and social justice," said Dean Kevin R. Johnson. "UC Davis School of Law is proud to recognize her accomplishments with the Daniel J. Dykstra Endowed Chair."

Dean Sunder succeeds Professor and Dean Emeritus Rex Perschbacher, who was the inaugural holder of the Dykstra Chair. The chair is awarded to a faculty member who demonstrates "outstanding scholarship and teaching and is committed to the ideals of founding School of Law faculty member Dan Dykstra." Dykstra, one of the first faculty members hired at UC Davis School of Law in 1965, rose to become Dean from 1971 to 1974 and remained at King Hall until his retirement. Alumni, friends, and family of the late Dan Dykstra provided funding for the the Daniel J. Dykstra Endowed Chair to honor his memory.

Madhavi Sunder

May 26, 2017

The Shifting Ground of Redistricting Law

(Cross-posted from Balkinization)

Chris Elmendorf

The tectonic plates of redistricting law are starting to slide—and quickly. Earlier this year, a three-judge district court struck down Wisconsin’s state legislative map as an unconstitutional partisan gerrymander, the first such holding by any federal court in more than a generation. Federal courts in Maryland and North Carolina have also issued supportive rulings in current partisan gerrymandering cases, allowing the plaintiffs' claims to proceed to trial.  

Meanwhile, yesterday’s Supreme Court decision in Cooper v. Harris, the North Carolina racial gerrymandering case, augurs a major recontouring of the redistricting landscape as the Equal Protection plate comes crashing into the Voting Rights Act (VRA) plate. Section 2 of the VRA has long been understood to require the drawing of electoral districts in which racial minorities can elect their “candidates of choice” in locales where white and minority voters have very different political preferences. Yet since the 1990s, the equal protection clause has required strict scrutiny of any district in whose design race was the “predominant factor.” The Constitution disfavors the intentional sorting of voters among districts on the basis of their race. Until recently, however, it was widely thought that the “predominant factor” test for racial sorting / equal protection claims would be met only as to districts in which both (1) minority citizens comprise a majority of the voting-age population, and (2) the district’s boundaries are wildly incongruent with “traditional districting principles,” such as compactness and respect for local government boundaries.

But in Bethune Hill v. Virginia, decided two months ago, the Supreme Court clarified that the “predominant factor” test is satisfied whenever race was the overriding reason for moving a group of voters into or out of a district, irrespective of the district’s apparent conformity to traditional criteria. Then, in the unanimous portion of Cooper v. Harris, the Court applied strict scrutiny to a district because the state had “purposefully established a racial target” for its composition, and selectively moved heavily black precincts into the district to achieve that target. In the Republican redistricting plan at issue in Cooper, the target was 50% black. In a Democratic gerrymander of North Carolina, the target would probably be smaller, perhaps 40% black, to more efficiently distribute reliable black Democratic voters while continuing to enable the election of some black candidates. But the actual threshold (50% vs. 40%) seems legally irrelevant.

How then is a state to comply with Section 2 of the Voting Rights Act, which, as noted above, has long required states to create districts with enough minority voters (a "racial target") to consistently elect minority “candidates of choice.” One unhappy possibility is that the Court will simply undertake to free redistricters from the latter obligation, holding Section 2 unconstitutional or narrowing it beyond recognition on the basis of an asserted conflict with the anti-sorting equal protection principle. 

Another possibility is that federal courts will require redistricters to follow a path established by Alaska's Supreme Court as a matter of state constitutional law. In Alaska, the state must first redistrict blind to race, then evaluate the resulting map for compliance with Section 2, and then make whatever minimal (?) changes are necessary prevent a Section 2 violation. Cooper v. Harris hints at this approach. Striking down District 1, the Court explained: "North Carolina can point to no meaningful legislative inquiry into what it now rightly identifies as the key issue: whether a new, enlarged District 1 [enlarged to comply with one person, one vote], created without a focus on race but however else the State would choose, could lead to § 2 liability.”

Insofar as today’s decision in Cooper advances the Alaska framework, the million dollar question will be how a state redistricting authority must assess its initial race-blind map for compliance with Section 2. Here the law could evolve in any number of directions, but given the Supreme Court’s aversion to racial targets, the Court may well allow states to count for Section 2 compliance purposes any district in which minority voters are likely to wield some influence (say, any district with a Democratic majority, or any district in which Democrats would lose their working majority if no minority voters went to the polls). This would represent a dramatic change in the law of Section 2, since until now nearly all courts have focused on the question of whether districts enable the election of authentic candidates of choice of the minority community, rather than minimally acceptable (and usually white) Democrats.

Of course, all of this is somewhat speculative. Writing at SCOTUSblog, Kristen Clarke and Ezra Rosenberg argue that Cooper and Bethune Hill, read together, require plaintiffs bringing a racial sorting / equal protection claim to show (as the trigger for strict scrutiny) quite a bit more than the existence of a firm racial-composition target plus the movement of voters to achieve the target. I’m not convinced, but for now, there’s enough looseness in the doctrine for lower courts to go either way on this question. 

What is clear is that the Supreme Court, unhappy about racial sorting, is on guard against pretextual justifications for the practice. As Justice Kennedy for the Court remarked in Bethune Hill, “Traditional redistricting principles . . . are numerous and malleable . . . . By deploying those factors in various combinations and permutations, a State could construct a plethora of potential maps that look consistent with traditional, race-neutral principles. But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.”

Going forward, any redistricters who undertake to draw districts with a racial-composition target (majority-minority or otherwise) would do well to announce that the target is merely one objective to be considered and balanced alongside many others, rather than a categorical command. The crossing of fingers is also recommended.
May 4, 2017

Plenary Session on Being Undocumented at UC in the Trump Era

Maria Blanco of the UC Immigrant Legal Services Center (housed at UC Davis School of Law) is speaking at the 8th Annual University of California International Migration Conference at UC Berkeley on May 13.

The topic is "Being Undocumented at UC in the Trump Era."

Find more information and registration details at haasinstitute.berkeley.edu/undocu2017.

 

 

May 4, 2017

Commentary on the California State Constitution, Co-authored by Darien Shanske, Is New in Paperback

This announcement from Oxford University Press:

Oxford University Press is happy to present the first paperback edition of the Oxford Commentaries on the State Constitutions of the US: The California State Constitution by Joseph R. Grodin, Darien Shanske, and Michael B. Salerno.

The California State Constitution provides an outstanding constitutional and historical account of the state's basic governing charter. In addition to an overview of California's constitutional history, it offers an in-depth, section-by-section analysis of the entire constitution, detailing the many significant changes that have been made since its initial drafting in 1849. This treatment, along with a table of cases, index, and the bibliography provides an unsurpassed reference guide for students, scholars, and practitioners of California's constitution.

The second edition updates and expands the previous edition published in 1993. The book provides new analysis, with citations to court decisions and relevant scholarly commentary, as well as accompanying explanations and a lengthy introduction to provide historical and thematic context. This new edition also contains a foreword by the current Chief Justice of California, Tani Cantil-Sakauye.

April 21, 2017

Study Finds Litigants Are in the Dark about Court Dispute Resolution Programs

As court systems throughout the country struggle to deliver civil justice in the face of major budget cuts, a new study by a University of California, Davis, law professor finds that fewer than one-third of people with cases filed in state court even know about their court's mediation and arbitration programs.

In recent years, state courts have been overburdened with litigants seeking civil justice in a system still recovering from the economic downturn. In many cases, alternative dispute resolution procedures such as mediation and nonbinding arbitration can provide litigants with relief from the expense and waiting time associated with trial. However, such procedures provide little opportunity for justice to litigants who are unaware of their existence.

Over 330 litigants from three state courts were asked in a phone survey, after their cases ended, whether their court offered mediation or arbitration. All study participants had cases that were eligible for both procedures through their court.

"The findings from this study raise serious questions about whether plaintiffs and defendants understand what procedures are available to them, and how meaningfully they participate in decisions about how to handle their legal conflicts," said Donna Shestowsky, a UC Davis professor of law who is the report's author.

The study, forthcoming in Harvard Negotiation Law Review, found that only 24 percent of litigants correctly reported that their court sponsored mediation, and only 27 percent correctly stated that their court offered arbitration.

Even worse, represented litigants were not significantly more likely to know about their court's procedures than were those who handled their case without a lawyer.

Litigants who knew their court offered mediation had more favorable views of their court, but a similar result did not emerge for arbitration.

The study also found that when litigants correctly identified their court as offering arbitration, they were more than twice as likely to consider using arbitration for their case.

"The study suggests that courts should invest resources to ensure that litigants know about their procedures. By making these efforts, litigants might be more apt to consider using the programs in which the courts have already invested, and give courts the credit they deserve," said Shestowsky.

Shestowsky's project is the first known multijurisdictional study to explore how civil litigants assess procedures at various points of time during the same lawsuit. 

The article, "When Ignorance Is Not Bliss: An Empirical Study of Litigants' Awareness of Court-Sponsored Alternative Dispute Resolution Programs," is forthcoming in volume 22 (spring 2017) of the Harvard Negotiation Law Review.

The study was funded by grants from the National Science Foundation, the American Bar Association Section on Litigation, the Norm Brand '75 & Nancy Spero ADR Research Fund, and UC Davis.

April 13, 2017

King Hall Faculty Wow the Crowd at Aokirama, Are Featured in Above the Law

Last weekend brought one of the most-anticipated student events of the academic year: Aokirama (formely Cardozorama), the law school talent show!

One of the biggest hits of the evening was the band Negotiable Instruments, featuring:

Prof. Angela Harris (vocals) as law professor
Prof. William Dodge (vocals) as law student
Prof. Rose Cuison Villazor (drums)
Prof. Thomas Joo (guitar)
Prof. Carlton Larson (piano)

Check them out here on YouTube!

Popular legal blog Above the Law took notice, soliciting submissions for its annual video contest by writing, "Hey law students - if your professors can do it, so can you!"