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September 1, 2017

With pardon, Trump shows no commitment to U.S. civil rights laws

[Cross-posted from the Davis Enterprise]

By Kevin R. Johnson

Over the weekend, a bipartisan group of political leaders - including Arizona Sens. Jeff Flake and John McCain, as well as House Speaker Paul Ryan, R-Wis. - condemned President Trump's pardon late last week of Maricopa County (Arizona) Sheriff Joe Arpaio.

For more than two decades, the controversial sheriff struck fear into the hearts of immigrants and U.S. citizens of Mexican ancestry in Arizona. A respected federal court judge appointed by President George W. Bush, Murray Snow, found that Arpaio, and his sheriff's office, aggressively - and lawlessly - used racial profiling to enforce immigration laws.

Defeated for re-election in 2016, the controversial sheriff had made a name for himself in unabashedly claiming that he wanted to aggressively enforce U.S. immigration laws. But publicity stunts showed cruelty and insensitivity toward inmates under his protection.

Arpaio, for example, made inmates wear pink underwear and suffer the heat outdoors in scorching Arizona summers. Undocumented immigrants were forced to live in a segregated "tent city" that Arpaio bragged was a "concentration camp."

The nation has faced similar civil rights issues raised by Arpaio's refusal to follow the rule of law. Southern segregationists in the 1950s and 1960s expressed views not that different from those expressed by contemporary alt-right activists and white supremacists. They, too, had to be schooled on the rule of law.

In one of the most famous examples, President Eisenhower in 1957 deployed federal troops to enforce the Supreme Court's decision outlawing segregated schools in Brown v. Board of Education (1954) so that African-American children, known as the Little Rock 9, could attend Little Rock Central High School in Arkansas.

Presidential pardons at times have been controversial. President Ford's pardon of President Nixon for his role in the Watergate cover-up is a leading modern example. However, an American president never has pardoned a person who repeatedly, willfully and intentionally refused to comply with court orders aimed at ending mass violations of the civil rights of racial minorities.

Arpaio was pardoned despite a judge's ruling that found him guilty of criminal contempt. A neutral federal judge, Susan Bolton, presided over the trial on criminal contempt and, after hearing testimony from Arpaio himself, found him guilty.

In addition to the civil rights violations, Arpaio undermined the fundamentals of the legal process. For a law enforcement officer to be found liable for criminal contempt is serious business. This explains why Attorney General Jeff Sessions reportedly told Trump that he could not drop the charges against Arpaio. And it explains why Republicans and Democrats alike are condemning the Arpaio pardon.

Trump has founded his presidency on enforcing the U.S. immigration laws. But his pardon of Arpaio is inconsistent with the rule of law. The president justified the pardon by saying that the sheriff "was just doing his job." However,"his job" as a law enforcement officer does not include breaking the law.

First, Arpaio was found to have engaged in a pattern and practice of racial discrimination in law enforcement against Latinos. Second, Arpaio was punished for intentionally violating court orders. Both offenses are antithetical to the rule of law. The efforts to nullify a court order vindicating the civil rights of vulnerable minorities are precisely the kinds of actions of the Southern segregationists of the 1950s and 1960s.

We are living in a time of deep political division and disturbing challenges to our Constitution. The nation has seen civil unrest unfold as violent clashes, including in California this past weekend, take place between white supremacists and counter-protesters. Trump and his followers have inflamed passions by claiming that immigration laws must be enforced with impunity.

In pardoning Arpaio, however, the president does not appear to be equally committed to enforcement of civil rights laws. He has demonstrated this through his pardon of Arpaio, as well as in his response to the troubling events in Charlottesville.

Trump seems to be siding with those opposed to federal civil rights law - and against the rule of law - by his continued attacks on the independence of the judiciary. That message is not what the nation needs at this time.

 

January 19, 2017

Professor Saucedo to Deliver Alice Cook Distinguished Lecture at Cornell

Professor Leticia Saucedo will deliver the Alice Cook Distinguished Lecture at Cornell University on April 13, 2017.

Saucedo will deliver a lecture titled, "The Legacy of the Immigrant Workplace: Lessons for the 21st Century Economy."

The Alice Cook Distinguished Lecture is organized by the ILR School of Cornell University. ILR is a leading college of the applied social sciences focusing on work, employment, and labor policy issues.

September 9, 2016

The Problem With the Texas Federal Court’s Nationwide Order Regarding Bathroom Access for Transgender Students

Co-authored with Vikram Amar. Cross-posted from Justia's Verdict.

Late last month, a federal trial court in Texas issued a nationwide order preventing the federal Department of Education (DOE), as well as a number of other federal agencies, from enforcing-anywhere in the country-their "interpretation of the definition of 'sex' in the various written directives ... as applied to Title IX ... and Title VII" (which are federal laws that prohibit certain entities from discriminating on the basis of sex). The basic underlying legal issue in the case (titled Texas v. United States) is whether school districts must permit transgender students to use restrooms and other facilities consistent with their gender identity, rather than the sex assigned to them at birth. According to the federal district judge, the DOE's position that Title IX requires schools to do just that is inconsistent with the DOE's own regulations and federal procedural requirements, and, accordingly, is unenforceable.

There are many things that could be said about the substance of the court's opinion. (The U.S. Court of Appeals for Fourth Circuit in the mid-Atlantic region, for example, previously reached a contrary conclusion about whether the DOE's interpretation of its own regulations was entitled to judicial deference in G.G. v. Glouster County School Board, finding the DOE's interpretation was permissible). But in the space below we focus more narrowly on the question of the appropriateness of a nationwide injunction.

To better frame that remedial question, we should provide a bit more background on the lawsuit itself. As noted above, the ultimate question folks care most about is whether school districts must, under federal antidiscrimination law, permit transgender students to use the restroom consistent with their gender identity. There are a number of cases pending in courts around the country that raise some form of this underlying question (including the Fourth Circuit ruling that answered that question in the affirmative, and other cases in other regions of the nation.)

The Texas case purports to get at this question of the meaning of antidiscrimination law by posing a more technical query: whether various documents issued by various federal agencies-which state that, in the view of the federal government, federal statutes and regulations are best read as meaning that school districts have an obligation to allow transgender students to use the bathroom consistent with their gender identity-are entitled to deference and provide legitimate, rather than unlawful, guidance to school districts. The group of plaintiffs in the Texas case consists of various states and state agencies drawn from a dozen or so of the fifty states. These plaintiffs sued as defendants a variety of federal officials and federal agencies, asserting, again, that different documents issued by these federal officials and agencies are unlawful.

To be clear, however, even if the agencies' various interpretative documents are not entitled to deference (or indeed, turn out to be "unlawful"), public schools still must comply with the relevant statutes, including Title VII and Title IX, which prohibit sex discrimination in employment and schools, respectively. Even if DOE's documents asserting its view that refusal to permit transgender individuals bathroom choice constitutes sex discrimination under federal law are legally flawed, that does not mean that its view of the meaning of sex discrimination law is wrong. Indeed, separate and apart from the agency interpretations, a number of courts have held that Title VII and Title IX prohibit discrimination against transgender people, using reasoning that might support entitlement of transgender persons to use bathrooms consistent with their gender identity.

With that background, let us home in on the scope-of-the-remedy issue. The Texas district court judge issued a nationwide injunction preventing the various federal defendants from "enforcing the [multiple documents] against" not only the plaintiffs, but also against "other public, educationally-based institutions." In other words, the court issued an order that offered protection not just to the plaintiffs before it, but to all school districts in the country, including those located in areas where other federal courts might have different views on the permissibility of the DOE's interpretive guidance.

Whatever one thinks of the district court's analysis of the legality of DOE's documents, the court's sweeping, countrywide, order is very legally dubious. To be sure, when the court has jurisdiction (or power to speak the law) over a defendant (including U.S. government agencies), the court has authority to order the defendant to act or not act. This includes the authority to issue a directive that has effects "outside the territorial jurisdiction of the court," but only because sometimes a plaintiff operates in more than one federal judicial district, and a court should be able to give a plaintiff full relief from a defendant's wrongful actions, not just local relief.

But one problem with the district court's order is that, by preventing the DOE and other federal agencies from enforcing their guidance documents anywhere, the court has effectively provided relief to dozens of states and hundreds (if not thousands) of school districts who were not plaintiffs in this case. It is one thing to give a plaintiff who sues full relief; it is another for the relief to extend beyond the parties in the case at hand.

What is so wrong about protecting other states and school districts that did not sue? At first blush, it may seem that if the federal government is acting wrongly, a court should tell it to stop acting wrongly against everyone in America, not just the parties who sued. But this instinct fails to account for the fact that not everyone agrees the federal government is acting wrongly, and one district judge should not, absent a class action where all the states are represented and the federal government is on clear notice-when it chooses how aggressively to contest a case-about precisely how broad the remedy would be, try to decide the issue for the whole country; that is not the function or strength of district courts. Indeed, resolving matters once and for all for the whole nation is a power we invest principally in the Supreme Court.

It is for that reason that courts often say something to the effect that "injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Related to this is the admonition that when exercising its equitable powers to issue an injunction, a court must be "mindful of any effect its decision might have outside its jurisdiction [insofar as c]ourts ordinarily should not award injunctive relief that would cause substantial interference with another court's sovereignty." A contrary policy would, in the words of the Supreme Court, "substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue." And if and when the issue makes its way to the Supreme Court, overly broad district court (or circuit court) injunctions that prevent other courts from hearing cases and weighing in can "deprive the Supreme Court of the benefit of decisions from several courts of appeals," a diversity of viewpoint the Court uses to decide the best nationwide outcomes. (This process is sometimes referred to as lower court "percolation.") And the fact that the district court said it would entertain a request to narrowly limit its nationwide injunction to avoid "unnecessary interfere[nce]" with other "currently pending" cases does not eliminate this concern.

The Texas district court's injunction itself illustrates the pitfalls of overly broad injunctions. To give but one example, several months ago, the Fourth Circuit (as alluded to above) was presented with essentially the same arguments that were presented to the Texas court in this case. That case-G.G. v. Gloucester County School Board-was brought by a student, G.G., against his local school board. G.G. was assigned the female sex at birth, but identifies as male. G.G. has been known as a male since ninth grade. He has changed the sex designation on his driver's license and has legally changed his name to a conventionally masculine name. At the beginning of his sophomore year, G.G. informed school officials that G.G. would be attending school as a male student. Initially, G.G. agreed to use a separate restroom in the nurse's office. But it quickly became clear that this was not an acceptable solution. In October of that year, the principal agreed that G.G. could use the boys' bathrooms. For the next several weeks, G.G. used boys' restrooms "without incident." But after some parents learned about the situation and demanded that the school board prevent G.G. from using the boys' bathrooms, the school board adopted a policy "prohibiting transgender students from using the same restrooms as other students."

G.G filed suit in federal court, alleging that the policy violated Title IX, a federal statute that prohibits sex discrimination in federally supported schools, as well as the Equal Protection Clause of the Fourteenth Amendment. Like the trial court in the Texas case, the district court in G.G.'s case concluded that the agency's interpretation of its own regulation regarding bathrooms was not entitled to deference and was wrong as to its bottom line. The Fourth Circuit reversed.

Specifically, the Fourth Circuit held that the "Department[ of Education]'s interpretation of its own regulation, § 106.33, as it relates to restroom access by transgender individuals, is entitled to [administrative] deference and accorded controlling weight in this case." This decision is now the controlling law across the Fourth Circuit. Although the Fourth Circuit is the only appellate court that has addressed this specific question to date, cases on this issue are pending in courts around the country.

Particularly (though not only) when another court has already issued a contrary pronouncement on the same question, issuing a nationwide injunction causes substantial interference with the power of other courts, and with the process of helping frame issues that might ultimately be taken up by the Supreme Court.

A related problem is that nationwide injunctions under such circumstances also encourage what lawyers call "forum shopping"-that is, picking a particular place to sue not because of the convenience of the parties or the location of the witnesses or evidence (which are legitimate factors for choosing a particular venue), but because of a predicted outcome. And, that indeed seems to be what is going on in this case. Most of the fifteen plaintiffs in the Texas case are states or government agencies located in states outside of Texas. And, even more importantly, most of the plaintiffs are located in jurisdictions where there is existing law contrary to their position. As one of the amicus briefs filed in the case puts it: "Plaintiffs Alabama, Arizona Department of Education, Georgia, Huber-Overgaard Unified School District, Kentucky, Tennessee, and West Virginia would lose this lawsuit if they filed it in their home states or anywhere in the federal circuits whose law governs them." Indeed one of the plaintiffs-West Virginia-is in the Fourth Circuit, which, as noted above, has already issued a contrary order on the precise question presented to the Texas district court. And West Virginia made the very same arguments to the Texas court that it unsuccessfully made to as an amicus in the Fourth Circuit. Giving plaintiffs an incentive and opportunity to have multiple bites at the apple like this would not promote efficiency or fairness.

In its 38-page opinion, the Texas federal court discusses the propriety of nationwide relief in just a sentence or two, and cites only one case-a Supreme Court case in which nationwide relief was upheld, but where there was a class action that had been certified in which the plaintiff class was itself nationwide, and where the lower courts had been careful not to allow their injunctions to affect other pending or likely litigations. In short, the district court gave no reasons or analysis to justify its presumptively overbroad relief.

For the record, we should note that one of us, Dean Amar, has in other commentary (including here and here) questioned an overly broad injunction that obtained a liberal result (as contrasted with the conservative result reached by the Texas district court case). In the prior instance, a few same-sex couples sued California officials to obtain marriage licenses even though state law, California Proposition 8, limited marriage in California to a union between a man and a woman. The district court judge, Vaughn Walker, issued what on its face appeared to be a statewide ban on California officials applying Proposition 8 to any same-sex couples, not just the plaintiffs before him. Dean Amar argued (relying on the legal principles discussed above) that, absent class action certification (which might have been plausible but which wasn't sought), the district court's remedy should have been limited to the plaintiffs in the case.

We mention this because procedural rules, by definition, are supposed to be trans-substantive, and when they seem result-oriented (as they did here in Texas given the absence of analysis and care offered by the district court), cynicism about the judicial system is the result.

 

April 8, 2016

CAPALF 2016 at UC Davis School of Law

The School of Law is proud to host the 2016 Conference of Asian Pacific American Law Faculty (CALALF) at King Hall today and tomorrow. There is a new addition to an already outstanding speaker line-up: California Supreme Court Justice Goodwin Liu.

Here is the program from the CAPALF website.

Keynote Speakers & Distinguished Guests

Justice Goodwin Liu  | Associate Justice
Supreme Court of California

Simon (Young) Tam | The Slants

Angela Harris | Distinguished Professor of Law & Boochever and Bird Endowed Chair
University of California, Davis School of Law

Karen Korematsu | Founder & Executive Director
Fred T. Korematsu Institute

The Honorable Rob Bonta | Assemblymember
California State Assembly

Frank Wu | Distinguished Professor of Law
University of California, Hastings College of the Law

Conference Schedule

Friday, April 8, 2016 | Room 1301

9:00 AM

Welcome Remarks

9:15 AM

Works-in-Progress Session One

10:30 AM

Coffee Break

10:45 AM














Plenary: #BlackLivesMatter and Asian Pacific Americans?

Aarti Kohli | Deputy Director of Advancing Justice
Asian Law Caucus

Linda Lye | Senior Staff Attorney
American Civil Liberties Union of Northern California

Bertrall Ross | Assistant Professor of Law
Co-Director, Thelton E. Henderson Center for Social Justice
University of California, Berkeley School of Law

Margaret Russell | Professor of Law
University of California, Santa Clara School of Law

Moderator: Rose Cuison Villazor | Professor of Law
University of California, Davis School of Law

12:00 PM

Keynote Address & Lunch
Simon (Young) Tam
| The Slants

1:00 PM

Arboretum Walk

1:30 PM

















Works-in-Progress Session Two

Discussion Panel: Neo ­Pariah: Studies in the Emerging Academic Caste System in Higher Education

Angela Harris, Distinguished Professor of Law, Boochever and Bird Endowed Chair
University of California, Davis School of Law

Kieu Linh Caroline Valverde, Associate Professor
University of California, Davis, Department of Asian American Studies

Darrell Hamamoto, Professor
University of California, Davis, Department of Asian American Studies

Wei Ming Dariotis, Associate Professor
San Francisco State University, College of Ethnic Studies, Asian American Studies

Melody Yee, Bachelor of Science
University of California, Davis, Department of Neurobiology, Physiology, and Behavior

Jing Mai, Undergraduate Student
University of California, Davis, Department of Neurobiology, Physiology, and Behavior

2:45 PM













Plenary: Islamophobia & the Lost Legacy of Korematsu

Lorraine Bannai | Professor of Lawyering Skills
Director, Fred T. Korematsu Center for Law and Equality
Seattle University School of Law

Karima Bennoune | UN Special Rapporteur in the Field of Cultural Rights
Professor of Law | University of California, Davis School of Law

Dale Minami | Partner
Minami Tamaki LLP

Shirin Sinnar | Assistant Professor of Law
Stanford Law School

Moderator: Afra Afsharipour | Professor of Law
University of California, Davis School of Law

4:00 PM

Coffee Break

4:15 PM









Plenary: Asian Pacific Americans and College Admissions

Ashutosh Bhagwat | Professor of Law
UC Davis School of Law

Marina C. Hsieh | Senior Fellow
Santa Clara Law

Dan P. Tokaji | Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law
The Ohio State University Moritz College of Law

Moderator: Anupam Chander | Professor of Law
University of California, Davis School of Law

5:30 PM

Awards Ceremony & Dinner
Guest of Honor: Karen Korematsu 

Saturday, April 9, 2016 | Room 2302

9:00 AM

Works-in-Progress Session Three

10:15 AM

Coffee Break

10:30 AM


Welcome Remarks
Dean Kevin Johnson
University of California Davis, School of LawThe Honorable Rob Bonta | Assemblymember
California State Assembly

10:45 AM






Students Plenary: Voices of the Next Generation

Stephen Chang | University of California, Berkeley School of Law

Sylvia Hsin-Ling Tsai | University of California, Davis School of Law

Steven Vong | University of California, Davis School of Law

Moderator: Uyen P. Le | Mellon Sawyer Postdoctoral Scholar University of California, Davis School of Law

12:00 PM

Keynote Address & Lunch
Distinguished Professor of Law Frank Wu
University of California, Hastings College of the Law

1:00 PM













Plenary: Latinos, Asian Pacific Americans, and Immigration

Jennifer Chacón | Professor of Law
University of California, Irvine School of Law

Bill Hing | Professor of Law
University of San Francisco School of Law

Hiroshi Motomura | Susan Westerberg Prager Professor of Law
University of California, Los Angeles School of Law

Deep Gulasekaram | Associate Professor of Law
Santa Clara University School of Law

Moderator: Jack Chin | Professor of Law
University of California, Davis

2:15 PM












Plenary: Emerging Scholars

Christina Chong | Assistant Professor of Law
University of San Francisco School of Law

Andrew Kim | Assistant Professor of Law
Concordia University School of Law

Saira Mohamed | Assistant Professor of Law
University of California, Berkeley School of Law

Nancy Chi Cantalupo | Assistant Professor of Law
Barry University Dwayne O. Andreas School of Law

Moderator: Hiroshi Motomura | Susan Westerberg Prager Professor of Law
University of California, Los Angeles School of Law

 

April 7, 2016

Diversity and Disability

Last Thursday and Friday (March 31st and April 1st), I attended the 2016 Jacobus tenBroek Disability Law Symposium in Baltimore, Maryland. 


The conference at the National Federation of the Blind


Baltimore Harbor at night

This annual symposium, named in honor of Dr. Jacobus tenBroek, brings together disability rights scholars and practitioners to discuss current disability law issues and impact litigation.  Dr. tenBroek served the public in many roles, for example, as a constitutional law scholar at UC Berkeley and a leader of the blind civil rights movement.  As a civil rights activist, Dr. tenBroek understood the importance of cross-movement coalitions to increase the political power of the disenfranchised.  He advocated for the "right to live in the world" for people with disabilities:

The right of access to public accommodations and common carriers is a civil right. It is a basic right indispensable to participation in the community, a substantive right to which all are fully and equally entitled.

Jacobus tenBroek, The Right to Live in the World: The Disabled in the Law of Torts, 54 CAL. L. REV. 841, 858 (1966).

Race is a little discussed topic in the disability rights movement despite its connection to some of the central issues of racial justice today.  For example, disability should be front and center in legal and policy discussions about prisoners' rights (approximately 24-37% of all people in prisons and jails in the U.S. self-report as people with disabilities and are disproportionately people of color).   

This year's symposium brought diversity to the forefront of the conversation.  "Diversity in the Disability Rights Movement: Working Together to Achieve the Right to Live in the World" raised difficult issues about race, gender, and sexual orientation.   I attended a breakout session on the intersection of trans rights and disability that was facilitated by Victoria M. Rodríguez-Roldán, Director, Trans and Gender Non-Conforming Justice Project, National LGBTQ Task Force.  A packed room of legal scholars and practitioners shared ideas on how the Rehabilitation Act and the Americans with Disabilities Act can be used to remedy discrimination against trans people with disabilities.  Claudia Center, Senior Staff Attorney in the Disability Rights section of the American Civil Liberties Union Foundation discussed the applicability of the ADA to police arrests following the Supreme Court decision in City and County of San Francisco v. Sheehan, 135 S.Ct. 1765 (2015).  While the Court appears to have answered the question as to whether the ADA applies to police arrests (turning on whether police arrests constitute a "program or service" under Title II of the ADA), the question of what constitutes "reasonable accommodations" in the context of arrests remains unanswered. 


Judge Thompson addressing attendees at the luncheon

The highlight of the symposium for me - other than having a chance to exchange ideas with disability practitioners and scholars - was the keynote address by the Honorable Myron H. Thompson, U.S. District Judge, United States District Court for the Middle District of Alabama.  Judge Thompson, an African American federal judge with a disability (childhood polio), shared the role of race and disability in constructing identity.  He emphasized the power of internal stigma that comes from low expectations and invisibility and the therapeutic potential of community building and cross-movement pollination.  Judge Thomson reminded the conference participants of the legacy of Dr. tenBroek and called for greater educational opportunities for law students to understand that disability rights are civil and human rights.  He encouraged law schools to build a disability rights law curriculum and law professors to build connections across subject areas so that the next generation recognizes the interconnectivity of race, ethnicity, disability, class, gender, and sexual orientation.  

Judge Thompson was energized when he learned that UC Davis is among a small group of law schools offering disability rights courses taught by full time professors, supporting a student-led Disability Law Society, and regularly inviting practitioners and scholars to discuss disability rights. 

Two King Hall alumnae practicing disability law approached me after the lunch discussion to introduce themselves and applaud King Hall's commitment to disability rights.  I look forward to bringing them back to King Hall in the future to speak with students about careers in disability rights.

January 15, 2016

Jack Chin to Discuss Hong Yen Chang Case in Riverside

Professor Gabriel "Jack" Chin will make a presentation on his work on the Hong Yen Chang case before the Riverside County Bar Association in May. He'll be joined by attorney Josh Meltzer of Munger Tolles and Olson LLP.

Chang, an 1886 Columbia Law School grad, was denied a license to practice in California because of laws that discriminated against Chinese immigrants. Last year, the California Supreme Court granted him posthumous admission to the bar, thanks to the efforts of Professor Chin and members of our Asian Pacific American Law Students Association (APALSA).

 

 

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.

NO RATIONAL BASIS

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 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.

 

November 20, 2015

Duke Law Symposium on Civil Rights

Senior Associate Dean Madhavi Sunder and I are at Duke Law School today. We are speaking in the symposium, "The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America" by the Center on Law, Race and Politics.

Dean Sunder and I are panelists in the first plenary session of the day, titled, "Reflections on the Present and Future of Civil Rights Movements." The panel is being moderated by our former King Hall colleague Angela Onwuachi-Willig, who's now at the University of Iowa College of Law.

Some of the panels are being live-streamed. Visit the Center's symposium website to view!

Here are the symposium poster and description:

In 2014, the nation marked the fiftieth anniversary of the March on Washington, the Civil Rights Act of 1964, and Freedom Summer.  In 2015, we recognized the fiftieth anniversary of the Voting Rights Act of 1965.  As we move forward in the 21st century, however, America finds itself at the beginning of a new era defined by its own set of civil rights struggles. The battles of 2015 are in some ways markedly different from those of the 1950s and 1960s, as "whites only" signs and overt displays of societally condoned racism are mostly relegated to history.  However, what remains is a country full of disparately impacted populations, with people of color facing disadvantages at home, at work, at school, and in the justice system, all in the context of a society that prides itself on its imagined march towards post-racial colorblindness.

A shifting landscape, however, simply means that the civil rights movements of the 21st century must also shift in line with modern realities. "The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America" presents an opportunity for scholars, teachers, practitioners, and activists to engage with each other as they discuss their unique perspectives on inequalities throughout different facets of modern America.  In exploring today's civil rights struggles, including the disproportionate imprisonment of populations of color, decreased access to housing, and persistent roadblocks to basic civic freedoms such as voting, this conference will provide an opportunity for those who recognize the persistent impact of systematic racism to reflect on the past and present in order to better inform the future.