May 3, 2021

Exploring the Meaning of and Problems With the Supreme Court’s (Apparent) Adoption of a “Most Favored Nation” Approach to Protecting Religious Liberty Under the Free Exercise Clause: Part One in a Series

[Cross-posted from Justia]

 

By Alan E. Brownstein and Vikram David Amar


About three weeks ago, in a per curiam (that is, unsigned) opinion in a case that was not fully briefed and argued at the Supreme Court, a majority of Justices (Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett) announced a potentially game-changing approach to processing claims brought under the Free Exercise Clause of the First Amendment. Since 1990, and the decision in Employment Division v. Smith, the Court has read that Clause not to require accommodation of religious activity via exemptions from religion-neutral and generally applicable laws and regulations, but it does mandate that government not target or discriminate against religion. The Court’s decision earlier this month in Tandon v. Newsom provides some powerful evidence about what constitutes impermissible discrimination against religion in the eyes of the new Court majority.


In Tandon, religious individuals challenged California’s COVID-inspired rule that limits all gatherings in homes to no more than three households. The challengers argued that since in other places, such as hair salons, retail stores, movie theaters, private suites at sporting events and concerts, and indoor restaurants, more than three households were allowed to come together at a time, in-home religious gatherings were being treated in an inferior and discriminatory manner. Accordingly, they argued, California’s rule could survive only if the inferior treatment of in-home religious gatherings were narrowly tailored to further a compelling government interest. In validating this challenge, a five-person majority ruled that “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise” (emphasis in original). For purposes of our analysis here, we call the Court’s major innovation in Tandon “Most Favored Nation” (MFN) reasoning, drawing from international trade lingo, in which some nations are entitled to be treated at least as well as any other nation is being treated, and borrowing from the work of other scholars who have suggested this language and advocated for an MFN approach in free exercise cases.


As Justice Kagan’s powerful dissent (for herself and Justices Breyer and Sotomayor — Chief Justice Roberts dissented without opinion) pointed out, an MFN-style analysis always requires deciding what the relevant “comparators” are — just like in traditional MFN arenas we always need to understand how other entities are being treated for trade purposes in particular, and whether those entities are indeed nations. For Justice Kagan, the case for upholding California’s rule was strong and clear: “California limits religious gatherings in homes to three households [but if] the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here.” Justice Kagan went on to point out (as the lower courts had) that commercial gatherings are qualitatively different from in-home gathering in several respects, including the length of time people sit or stand near each other talking, the size and ventilation of the buildings, and the ease of enforcing social-distancing and mask requirements. At a minimum, the problem Justice Kagan identifies about deciding whether another activity is a fair comparator for determining whether religion is less favored is challenging (something we take up at various points in this series of essays.)


Given the practical and doctrinal difficulty courts implementing an MFN approach will encounter, we first need ask from where in prior cases this MFN notion might have emerged and what is behind it.


One possible explanation is that MFN reasoning is a plausible extension and extrapolation of Justice Scalia’s majority opinion in Employment Division v. Smith, the 1990 case we adverted to earlier, in which the Court first held that under the Free Exercise Clause, government is generally not required to grant religious accommodations to neutral laws of general applicability. But the notion that MFN reasoning is simply an explication of what Justice Scalia’s majority opinion had in mind as to the meaning of “neutral” and “generally applicable” is unpersuasive. The primary rationale the Smith majority offered to support its holding was that alternative approaches to free exercise were, as a practical and doctrinal matter, untenable. If courts applied strict scrutiny with full rigor to all laws that substantially burdened religious exercise and conferred accommodations whenever judges honestly concluded this rigorous test was not satisfied, society would devolve into anarchy as religious individuals could avoid complying with any law that allegedly interfered with their beliefs or practices. And if strict scrutiny was applied more leniently, judges would have to engage in a subjective, indeterminate balancing of interests; a task for which the judiciary is ill suited (and which lies outside its proper institutional role) and which, accordingly, is better assigned to the political branches of government.


But an MFN approach creates, indeed exacerbates, the very problems that Scalia and the four other Justices joining his opinion in Smith were trying to avoid. Interpreted and applied broadly, MFN reasoning requires rigorous strict scrutiny review of any law that includes at least one secular exemption. Under this analysis, the scope of rigorous review required by an MFN test is at least as broad as existed in the pre-Smith free exercise doctrine—the very problem the Court was trying to remedy in making the major doctrinal shift it did in Smith. And If an MFN approach is applied narrowly by aggressively limiting the scope of relevant secular comparators, courts will be engaged in the kind of subjective indeterminate quagmire Scalia wanted so much to avoid.


Whatever one thinks about merits of the Smith decision, and one of us has been harshly critical of its holding for 30 years, it is inconceivable that the majority in that case intended that the concept of general laws of neutral applicability be interpreted in a way that completely undercut the goals that the Court was trying to achieve.


Perhaps a more likely doctrinal predecessor of Tanden is not found within Supreme Court case law, but instead in a Third Circuit opinion Justice Alito authored when he sat on that court prior to being elevated. In Fraternal Order of Police v. City of Newark, about two decades ago, then-judge Alito wrote for a Third Circuit panel applying heightened scrutiny and requiring the Newark Police Department to grant an accommodation from its no-facial-hair grooming policy for police officers to an individual officer who wanted to maintain a beard for religious purposes. The fact that the Department granted exemptions to officers for whom facial hair was medically beneficial (i.e., for whom regular shaving created skin or other health problems) meant, to the Third Circuit, that religious requests for exemptions also had to be granted. Religious claims for exemption could not be treated less favorably than secular claims for exemption, when both claims interfered with the goals of the Department’s grooming standards — in this case uniformity of appearance — unless the Department could satisfy a heightened-scrutiny standard of review. More on this case a bit later.


Moving beyond case law foundations, what theoretical arguments are there to support an MFN approach? The substantive justification offered by some jurists and scholars supporting an MFN analysis is that the MFN principle is grounded on the notion that government cannot devalue religion by treating any secular interest, including public health and access to medical care, more favorably than an allegedly comparable religious belief or practice. This idea that for a right to be taken seriously its exercise can never be devalued in a relative sense—that is, can never be afforded less value than some other activity — is not generally recognized, partly for commonsense reasons. Applied to free exercise of religion in an energetic way, MFN analysis can often seem counterintuitive in the extreme. Assume a court upholds a city ordinance requiring private parades traveling through city streets to obey traffic rules and stop at stop signs and red traffic lights. Assume also that the court has recognized that ambulances driving patients to the hospital are not subject to these limitations. Certainly the Free Speech Clause would not require that a caravan of car protestors receive the same favored traffic-law treatment provided to ambulances. Yet under a MFN approach, if the caravan consisted of religious worshippers—say, on the way to a funeral—would we conclude that unless the hearse and other mourners were allowed to speed through red lights that their religious liberty would be constitutionally disrespected and impermissibly demeaned on account of the relatively superior treatment of emergency medical vehicles?


It’s easy to imagine one’s own parade (no pun intended) of horribles. But the problem with the MFN principle extends far beyond counterintuitive examples of its application. The MFN analysis in many ways fundamentally misunderstands and mischaracterizes the very nature of constitutional religious liberty. There are, to be sure, some fundamental rights that we protect because we value the social utility of the exercise of the right. Voting is an obvious example. But it is far less clear that the free exercise of religion fits securely within this category of protection on account of clear social utility. Instead, we protect the free exercise of religion because we do not want the state, and that includes judges, to interfere with religious choice and the voluntary association—the autonomy, if you will—of religious individuals. As a constitutional matter, we protect religious exercise because we do not trust the state to make judgments about religion. The reason that religious exercise receives constitutional recognition and protection is not because the Constitution assigns some heightened value to religious belief and practices over and above the wide range and majority of secular interests the state may deem worthy of protection.


This key distinction becomes particularly clear when we try to account for why religious majorities commit themselves to constitutional doctrine that protects minority beliefs the majority considers false and even dangerous. As one of us has explained this phenomenon in academic writings:


Religious individuals who support religious liberty for adherents of faiths they believe to be false do not do so because they believe that the faith communities receiving protection are moral or correct. The justification for protecting false faiths does not depend on the accuracy or value of what is believed. At its core, religious liberty recognizes the deeply felt need of individuals to determine religious truth for themselves and the right to live one’s life authentically in accordance with one’s religious identity.


The difference between protecting religion because of the value the state assigns to its exercise and protecting religious liberty to prevent the state from having any meaningful say in what religion requires or the importance of religiously grounded beliefs and practices is further demonstrated by the way courts define and identify religion for constitutional purposes. If we protect religion because of its relative and high value, one would think courts would carefully define what religion is so that they would be only protecting those interests that deserve special constitutional attention and protection. But that is not the case. There is no working operational definition of religion in free exercise jurisprudence. The lack of a definition reflects the courts’ concern that by attempting to identify and distinguish religion from non-religion, judges would get impermissibly caught up in involving themselves with the nature, value, and meaning of religion. That this is forbidden territory reinforces the idea that we protect religion by keeping it free from state involvement, not by assigning relative value to its exercise.


Even if one were to support the idea that we protect the free exercise of religion because the Constitution requires government to value religion at least as much it not more than secular interests the state deems worthy of protection, the lack of a working definition of religion, indeed the intrinsic fluidity of religious belief in a pluralistic society, makes the kind of comparison envisioned by MFN jurists and scholars particularly challenging. Exemptions from legal requirements may be extremely desirable because they free claimants from burdens they would find to be especially disturbing or because in obtaining the exemption the claimant receives something of secular material value. Consider, for example, that being exempted from the military draft might enable someone to avoid a crisis of religious conscience, but it also confers a material benefit—freedom from the risk of getting killed in a war zone—that many would desire. Or consider that the entitlement to be free from work on the Sabbath (either Saturday or Sunday) permits more than the freedom to go to religious services in the morning; it also allows someone the latitude to spend more time with their family and to engage in whatever non-vocational activities their faith permits. These secular-benefit externalities also figured prominently in the decision made by the Court in Smith, and they could easily bedevil courts seeking to undertake an MFN approach.


One reason for this has to do with how, as a matter of evidentiary sincerity, claims for religious accommodations are asserted. Claims for secular exemptions can often be grounded on objectively verifiable evidence. Medical issues experienced by people receiving vaccines or complying with facial shaving requirements or seeking 4F exemptions from conscription can be clinically evaluated. The evaluation of religious claims for exemption have no such basis for objective evaluation and depend on a subjective determination of the claimant’s sincerity. This means that there are risks of sham claims when religious claims of secular value are asserted, a concern that the state may not need to be as worried about when secular exemptions are granted.


It is not clear how the potential for sham claims should be taken into account in engaging in an MFN analysis. What should happen when the state explains that it grants a secular exemption but not a religious exemption because there is much less risk of false assertions for medical exemptions than for religious ones? The problem here is not simply the difficulty of drawing comparisons, a problem that confuses and undermines MFN analysis as a general matter. When constitutionally mandated religious exemptions result in secular benefits being made available to virtually all religious claimants, and only a few secular claimants are equally eligible for such benefits, the MFN framework can be challenged as unfairly privileging religion.


There is a deeper concern here that also must be addressed. When the courts require the granting of religious exemptions that also have secular value, they not only might be thought to improperly privilege religion, they create an incentive for individuals to affiliate with a faith and to use that as a basis for asserting the right to an exemption. The creation of such incentives is anathema to the constitutional mandate that religion should be a matter of voluntary choice without state action promoting individual beliefs and practices. Unless MFN analysis can respond to this concern, it raises problems that deserve serious attention.


We see no evidence that MFN is up to the task. In the Fraternal Order of Police case described earlier, for example, what would prevent a police officer who thought he was much better looking with facial hair to assert a sham religious liberty claim grounded on the exemption provided to officers who suffered medical consequences if they complied with the Police Department’s grooming standards?


We want to be clear here. The possibility of free exercise claimants asserting sham claims should not preclude the development of free exercise jurisprudence recognizing the legitimacy of free exercise exemptions in appropriate circumstances. But the risks of sham claims are not immaterial.  And if the MFN framework has legs in the eyes of a majority of Justices, this framework would need to innovate doctrinal tools for evaluating them.


One final example involving secular externalities and fluid religious commitments further illustrates the complexity involved here. If conscription was reinitiated, individuals who were otherwise eligible to be drafted might be granted a secular deferment because of medical limitations that interfered with their ability to participate effectively in combat, a status historically called 4F. Under accepted law, religious pacifists whose beliefs would interfere with their ability to participate effectively in combat would also be granted conscientious objector (CO) status. It has long been recognized, however, that the beneficiaries of CO status can be required to perform alternative service. This requirement operates as a check on sham claims for exemption and it places some civic obligation on claimants who avoid the serious burden of military service.


If we now add MFN analysis to the mix, does it become unconstitutional to impose alternative service on CO beneficiaries if we require no comparable civic obligation from individuals receiving medical deferments? Obviously, the CO beneficiaries (who are required to perform alternative service) are receiving exemptions of lesser value than individuals receiving medical deferments (who are not). Does that constitute the devaluing of religion? Or is it simply the state’s recognition that religious exemptions and medical exemptions are sufficiently different (in terms of proof of validity and necessity) for constitutional and public policy purposes that they do not need to be treated the same way — even if that seems inconsistent with MFN analysis.


In our next installment, we continue to try to locate an MFN approach in the larger constitutional context to permit careful analysis.

 

April 30, 2021

Why Supreme Court Case About Cheerleader's Snapchat Rant Matters to Students Everywhere

 

In Supreme Court cases, our tendency is to focus on who should win. That’s not what matters most in Mahanoy Area School District v. B.L.


[Cross-posted from USA Today]

By Aaron Tang


Like every high school freshman ever, 14-year-old Brandi Levy had a bad week. She missed the cut for her high school’s varsity cheerleading team. She struggled at softball practice. And she worried about her final exams. So like every high school freshman, Levy vented. “F--- school f--- softball f--- cheer f--- everything,” she posted to her friends on Snapchat on a Saturday afternoon.

 

Unlike every other high school freshman, Levy’s angry snap spawned a controversy that is now before the Supreme Court.


Levy’s message, it turns out, found its way to her cheerleading coaches, who suspended her from the team. Two lower courts ruled that this violated Levy’s right to free speech, and the Supreme Court will hear oral argument in her case Wednesday.


When contemplating major Supreme Court cases, our natural tendency is to focus on who should win. Counterintuitively, that’s not what matters most in Mahanoy Area School District v. B.L. 


What matters more is what the court says about what comes next for the losing side. If the justices are wise, they will write an opinion ensuring that who loses can still protect their interests even after an adverse ruling.


The question in Mahanoy concerns the proper application of a canonical First Amendment decision, Tinker v. Des Moines. In Tinker, the Supreme Court famously held that although students do not “shed their constitutional rights ... at the schoolhouse gate,” the First Amendment permits public schools to punish students for speech that would “substantially disrupt” school activities. 


Tinker concerned three students who were suspended for wearing black armbands to protest the Vietnam War. The court ruled that this violated the students’ right to free speech because their protest caused little in-school disturbance.


Levy’s speech was different in a crucial respect. Unlike the armbands in Tinker, which were worn on campus, Levy’s speech took place entirely off-site.


The 3rd Circuit Court of Appeals thus held that Tinker’s carveout for student speech that would “substantially disrupt” school activities did not apply in the first place. Levy’s expression accordingly enjoyed full First Amendment protection.


It’s easy to sympathize with Levy’s plight. Yet the 3rd Circuit’s reasoning is also quite worrisome. Perhaps that court was correct that she shouldn’t have been punished for her casual weekend snaps, but surely students who engage in more dangerous off-site speech should be.


Consider the tragic story of Mallory Grossman, 12, a middle school student who was so brutally harassed by her classmates through Snapchat and other off-campus social media that she took her own life. Or Phoebe Smith, a 15-year-old freshman who hung herself after being victimized by relentless bullying, much of it online.


Schools must have the power to crack down on the perpetrators of such harmful and pernicious speech, even if it takes place off-campus.


But the interests on Levy’s side of the case are significant, too. Levy’s speech threatened no student or school employee. She simply wanted to vent a little and live her life.


Free expression at stake


To allow the school district to punish her for such relatable frustrations — feelings that teenagers around the nation share everyday online — would dangerously stifle free expression among the very young people whom schools are supposed to teach that value.


Who, then, should win the case? Happily, the answer is not as important as one might expect given the gravity of the conflict.


The reason is that whoever loses on the technical legal question — whether Tinker applies to off-campus speech — should still enjoy a meaningful strategy for protecting their interests moving forward. The key is for the Supreme Court to say so in any opinion it writes.


Start with a ruling against Levy. If the Supreme Court holds that school districts can, in fact, punish students for off-campus speech that meets Tinker’s substantial disruption standard, that is not the end of Levy’s case. She can (and should) still prevail if her snap did not actually create such a disruption.


As it turns out, the district court ruled in her favor on exactly this basis. Apart from a few comments from upset students — precisely the kind of reaction generated by the protests in Tinker — Levy’s snap caused no disruptive effect in school.  


Or consider a possible ruling against the school district. If the court wishes to protect the expressive interests of young people like Levy, it can affirm that Tinker has no application to off-campus speech.


But if it does that, it can (and should) also make clear that schools retain the power to punish students for off-campus speech that threatens, bullies or harasses others because such speech is not protected under standard First Amendment principles.


Tellingly, Levy agrees. As her brief puts it, “Ordinary First Amendment standards … already permit schools to regulate harassment and bullying, including when they are carried out by speech.”


Both sides need good options


The outcome of Supreme Court rulings on major societal conflicts can feel like a matter of life or death, so battles over the Supreme Court often feel the same way. That is especially true in this polarized moment. But a case like Mahanoy Area School District shows why it is important to look beyond the court and focus on what happens after the court issues its decisions. Sometimes, the side that loses a monumental case will still have meaningful options for avoiding harm.


Indeed, I’ve argued that the Supreme Court is increasingly deciding hard cases with this important idea in mind: A number of its recent opinions have reminded losing litigants of their other avenues for redress.

 

By signaling the availability of these post-defeat responses, the court ensures that its decisions avoid all-out losers. The court should continue on this promising path, both in Mahanoy and the other cases on its docket.


 

April 26, 2021

Analyzing the Recent Sixth Circuit’s Extension of 'Academic Freedom' Protection to a College Teacher Who Refused to Respect Student Gender-Pronoun Preferences

[Cross-posted from Justia]

By Vikram David Amar and Alan E. Brownstein

A few weeks back, in Meriwether v. Hartop, the United States Court of Appeals for the Sixth Circuit issued a broad First Amendment ruling in the area of so-called “academic freedom” enjoyed by university teachers. The case involves a philosophy professor (Nicholas Meriwether) who was punished by the public university he works for (Shawnee State University in Ohio, or University) for failing to comply with a University policy requiring teachers to address students by the students’ preferred pronouns. More specifically, Meriwether, a devout Christian who had a practice of using formal titles (Mr. or Ms.) in class when leading Socratic discussions to “foster[] an atmosphere of seriousness and mutual respect,” objected to having to use “feminine titles and pronouns” in addressing and referring to a student (described in the opinion merely as “Doe”) whom Meriwether described as someone “‘no one . . . would have assumed . . . was female’” based on . . . outward appearances. . .”

In response to complaints by the student, the University, after various back-and-forths with Meriwether, formally reprimanded him for failure to comply with the salutation policy, and warned that future violations would bring “further corrective actions” that could include pay reductions and termination. En route to the written reprimand, the University rejected at least two resolutions Meriwether proposed: (1) that Meriwether refer to Doe simply by her last name (even though, presumably, Meriwether would continue to use “Mr.” and “Ms.” in conversing with all other students); and (2) that Meriwether comply with the school’s policy and use students’ preferred pronouns but add a disclaimer in his syllabus “noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity.”

After a faculty union grievance process (the faculty at Shawnee State apparently is unionized) did not bring him satisfaction, Meriwether filed suit in federal court bring claims under: (1) the Free Speech and Free Exercise Clauses of the First Amendment; (2) the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (3) the Ohio Constitution; and (4) his contract with the University.

The federal district court dismissed all of Meriwether’s federal claims and declined to exercise jurisdiction over the supplemental state-law claims. The Sixth Circuit reversed as to the First Amendment causes of action, holding that Meriwether had stated a valid claim under both the Free Speech and Free Exercise Clauses of the First Amendment. In resolving the Free Speech issue (the only one we have space to address in this column), the Sixth Circuit panel held that although Meriwether is a public employee, the framework the Supreme Court has erected to govern, as a general matter, free-speech claims by government employees, spelled out 15 years ago in Garcetti v. Ceballos, does not apply because the Court in Garcetti explicitly declined to decide whether its framework should be used for “speech related to scholarship or teaching.”

Instead, said the Sixth Circuit, older cases from the 1950s and 1960s, involving the imposition of McCarthy-era loyalty oaths on all public employees, including public educators, spoke grandly about the importance of preserving academic freedom for people who teach and write in American universities, and thus suggest that the Garcetti framework (under which the category of on-the-job speech by public employees, in which Meriwether’s teaching would fall, would ordinarily receive little First Amendment protection) ought not be used in this setting.

Instead, the court applied the pre-Garcetti case of Pickering v. Board of Education, under which even on-the-job speech by public employees is protected if it involves a matter of public concern, unless the speech would impair a sufficiently strong interest the public employer has in the operation of the public entity in question. In ruling for Meriwether, the court, in grand fashion, observed:

Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment.

In our view, this was an unfortunate ruling in two important respects: it may have reached the wrong outcome on the facts, and in doing so it made some unnecessary and arguably questionable law on a big decision — the extent to which Garcetti should or should not apply to the public higher education setting.

As to the first question (the correctness of the ruling on its facts), we believe the Sixth Circuit erred for several reasons. For starters, even under the Pickering balancing test the court purported to apply (which protects public employee speech more than does the Garcetti framework), the University should have prevailed. The Sixth Circuit rejected as insufficient the University’s argument that its policy helped it steer clear of a hostile learning environment that might itself violate federal law.

But whether or not respecting students’ preferred pronouns is itself required by federal anti-discrimination law, isn’t it obvious that a university has a strong interest in promoting a sense of equal treatment and dignity among its students so that the learning environment in the classroom liberates students to focus on the content at hand without having to simultaneously process difficult feelings of exclusion or disrespect? And if that interest is important, one can see how Professor Meriwether’s proposed “compromises”—of using the last name only for Ms. Doe but using “Mr. and Ms.” for everyone else (thus singling Ms. Doe out for different treatment in a way the whole class sees and hears), or of noting his objection to the university’s pronoun-use policy in the syllabus that students like Ms. Doe must look at every class day of the semester —do not address the problem.

Indeed, if the Sixth Circuit were correct, would a faculty member have a First Amendment right to refer to women students by their first names and men by using “Mr. [last name]”? Or calling Blacks by their first name but Whites by “Mr. or Ms [last name]”? Certainly providing equal salutation treatment without regard to race or gender identification no doubt constitutes an important pedagogical interest as to which universities are entitled to significant deference. (It might be a more difficult question if the University had punished Meriwether for his private social media posts in which he railed against the policy’s unwisdom, since that would be one step removed from the classroom learning environment itself.)

Moreover, it is far from clear that a salutation—the way that students are addressed or called on in class or elsewhere — itself constitutes the kind of distinctive academic-speech activity that may ever justify significant First Amendment protection at all when undertaken by a public employee, regardless of the applicable doctrinal framework. Certainly and importantly, the Sixth Circuit never explained what is distinctive about salutations at a university that implicates the development of new knowledge or intellectual debates. Salutations are generic and are utilized throughout public institutions, including K-12 public schools, courtrooms, and the myriad situations where public employees address their clients or the general public. In all these circumstances, government would have substantial discretion in regulating the scope and form of salutations, without regard to an employee’s conscientious reluctance to abide by the state’s requirements. Special constitutional protection for academics engaged in activities that are functionally indistinguishable from the conduct of all other public employees and which bear no relationship to the reasons why academic freedom and freedom of speech at public universities might merit unique free speech treatment requires more of an explanation and defense than the court’s opinion provided.

Another way to put the point is this: Meriwether’s objection to following the school’s salutation policy was based on its conflict with his personal politics, not a conflict with the content or viewpoint of the class he was trying to teach. Indeed, if he were trying to make a pedagogical point about philosophy (his field) by using the way he addressed students as an example or illustration of a particular philosophical viewpoint, important questions would be raised about whether it is appropriate to enlist students as props, or unwilling performance artists, for professorial demonstrations. (Certainly in med school, for example, a professor could be prohibited from incorporating his unwilling students as subjects of experiments he were trying to demonstrate to the class.)

Pulling back the lens, as a general matter it may not make sense to construe salutations to be pure, content-based speech rather than essentially conduct-infused interactions in which speech plays the same relevant but non-substantive role that “speech acts” do in so many social interactions. When a teacher takes attendance to determine which students are present in the classroom, that seems more like a mechanical exercise than the expression of substantive content germane to the course curriculum. Similarly, when a teacher calls on students who raise their hand to speak, this avoids the conundrum of too many students trying to speak at the same time, but this practice itself contributes little if anything to the substantive subject matter of the course.

We recognize that there is an expressive dimension to salutations, but that is hardly dispositive. The question is whether the salutation is in essence a form of interaction that allows decisionmakers to identify and distinguish one person from another (a rather mechanical goal) rather than convey a substantive, much less viewpoint-based, message. Putting Garcetti aside, when the DMV finally calls your name to come forward to renew your driver’s license, would we remotely think the salutation there is protected speech for First Amendment purposes?

Finally and relatedly — and this may be among the most difficult question raised by this case and not addressed by the Sixth Circuit — how do we differentiate speech from identity discrimination for constitutional purposes? As suggested above, if a professor calls on White male students by addressing them as “Mr.” followed by their last names and calls on Black men and all female students using only their first names, the university would be permitted to punish that practice. One could argue that the university’s rules do impinge upon the professor’s freedom of speech and academic freedom liberties but that this infringement is justified by the public university’s strong state interest in prohibiting race and gender discrimination. (As noted above, if this is the right way to analyze the problem under a Pickering balancing framework, the Sixth Circuit gave no reason why the university’s interest shouldn’t prevail in the present case as well.)

But there is an alternative way to understand this conflict, that needn’t even require resort to compelling university interests. It is often the case that distinctions drawn between protected classes, even if expressive in nature, are construed to be discriminatory conduct that does not implicate free speech guarantees at all. For example, Title VII prohibits employment discrimination on the basis of religion. It does not prohibit employment discrimination based on secular belief systems. From a speech perspective, this statutory scheme constitutes viewpoint discrimination. The Court has repeatedly held, after all, that religion is a viewpoint of speech. But no one argues that Title VII abridges freedom of speech in this way. For the purposes of this civil rights statute, religion is understood to constitute an identity (protected against discrimination) not a subject or viewpoint of speech.

The same analysis could apply to the terms used to address a student. To the extent that ignoring students’ professed genders when calling on them in defiance of university regulations is construed to be a form of identity discrimination, that determination could displace free speech review of the university’s requirements — just as prohibiting discrimination against students on the basis of their religion when calling on them could be understood as legitimate enforcement of civil rights principles rather than an abridgment of the professor’s freedom of speech.

For these reasons, we think the court should have ruled for the University in any event. And if it had seen things this way, it would have had no occasion to address the big and vexing question whether the government-protective Garcetti framework applies in the education setting. There are certainly arguments cutting both ways on this. In Garcetti, the Court ruled that as long as “public employees [are] mak[ing] statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” even if the matters on which they are speaking are of public concern.

To be sure, applying Garcetti to all academic settings would have pronounced effects in that no public educators would be protected by First Amendment academic freedom with regard to on-the-job speech. And deciding what is on-the-job speech is not always easy. The scope of what constitutes employee, as opposed to citizen, speech can be unclear. With regard to K–12 instructors, perhaps all of a teacher’s statements during class can be viewed as part of the job, but what of conversations with students out of class, during lunch period, or before the school day formally begins? More problematically, how do we determine the job parameters of university professors who are often expected — as part of the scholarship and service components of their job — to speak to government, the press, professional associations, and other audiences, and to publish articles and books for diverse dissemination?

Yet if Garcetti doesn’t apply, where does special First Amendment protection for public professors come from? Just as the Press Clause of the First Amendment has never been construed to give the institutional media special speech protections (and that is a good thing since the very idea of the institutional media has broken down due to the internet), so too it might be problematic to try to define and confer special protection on “professors.” (What about independent scholars at think tanks, and conspiracy theorists who purport to do scholarly research?)

The Sixth Circuit leaned a lot on cases from public educational institutions in which the Court rejected anti-subversive laws from two generations ago. But these cases should not be overread. The Government in these cases lost (and should have lost) because it failed to make any specific showings of disruption to government operations that the laws were addressing; instead, it was arguing that all civil service should be free of anyone who holds dangerous beliefs — not that a particular person’s belief, because of his or her particular job, was in fact or in all predictive likelihood going to interfere with government operations. Even the Garcetti framework and the leeway it affords government to regulate speech qua employee does not necessarily permit the government to use its employer status to “silence discourse, not because it [has any effect on] public functions but simply because superiors [in the government department or office] disagree with the content of employees’ speech” — precisely what government was trying to do during the early Cold War. So with or without application of Garcetti, those cases would have come out the way they did, and thus they don’t really offer much clear support for an academic freedom exception to generic First Amendment doctrine.

Finally, we note another way in which the federal courts in this case perhaps needlessly waded into this thicket. The district court declined to address Meriwether’s claims under the Ohio constitution or his contract with the University. We recognize that federal courts may not feel they are the best institutions to forge new state-law paths. But federal courts can make use of devices like certification of questions of law to state supreme courts. And in many respects these non-First-Amendment sources of law — especially state-law definitions of tenure and the like — may be better and more durable fonts of academic freedom protections than First Amendment doctrine. If public universities want to recruit and retain top-flight academics, they will likely have to promise certain expressive leeway (something implicit in the Sixth Circuit’s reference to the tradition of intellectual diversity and freedom in American higher education) and should be held to their promises. But if other public educational institutions choose not to make such promises, it is not clear that federal courts should be fashioning First Amendment law to force them to so do. Finally, judges need remember that rules empowering faculty members against administration rules can cut both ways. If more progressive administrations can’t rein in more conservative faculty practices, neither can conservative legislatures and boards of governors rein in more progressive professors.

February 1, 2021

Episode 49: 'Incitement'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

On Jan. 13, former President Donald Trump became the first person ever to be impeached twice by the House of Representatives. But with Trump out of office, it’s unclear if there will be enough votes to reach the two-thirds majority needed to convict him in the Senate. With the trial looming, we look at whether Trump has a good argument against the charge he incited a riot at the U.S. Capitol, and whether it’s constitutional to impeach a person who has left office. 

Listen to the episode

January 27, 2018

The Constitutional Issues Driving the Events in the Hit Movie, The Post

By Vikram David Amar and Alan E. Brownstein

 

[Cross-posted from Verdict Justia]

 

The blockbuster movie The Post tells a very important real-life story about the efforts of the journalists and leaders of the Washington Post (including Katherine Graham, the first female head of a major American newspaper) and the New York Times to publish parts of a collection of classified documents (the “Pentagon Papers”) detailing non-public information about America’s controversial involvement in the Vietnam War. Although some historians might criticize the movie’s exaggeration of the role of the Post vis-à-vis the Times in getting the documents published, the movie has many strengths: a great story, a taut script, and very fine acting. But one weakness is its failure to explain the legal backdrop against which the battles over publication of the Pentagon Papers were waged. We think this is a shame, since movies and TV shows about important historical episodes like this one represent ideal opportunities to painlessly educate a wide swath of Americans on important—albeit somewhat technical—aspects of the First Amendment and other provisions in the Constitution. For this reason, in the space below we introduce and analyze the two main legal doctrines that lie behind much of the action in this worthwhile cinematic drama.

 

Spoiler alert: We begin with a brief summary of the movie’s storyline. But the movie and the events it depicts are drawn from recent American history with which we hope many Verdict readers would already be familiar; in any case, the real value of the film lies in its character development and detailed storytelling, not in any surprise plot twists or endings.

 

In The Post, Katharine Graham (played by Meryl Streep), the publisher of the Washington Post, and Ben Bradlee (played by Tom Hanks), the editor-in-chief of the newspaper, confront an extraordinary situation. During the Vietnam War, while Richard Nixon was president, Daniel Ellsberg provided photocopies of thousands of classified documents to the New York Times. These documents, eventually known as the Pentagon Papers, chronicled the United States’ involvement with Vietnam for decades. The documents revealed numerous misrepresentations by the government to the American people about the causes of the war, the success of military operations, and the likelihood that the war could be won. The Times published the content of some of these documents, but stopped doing so when the United States government, asserting alleged violations of the Espionage Act and inherent executive authority to protect the national security of the country, went to federal court and obtained an injunction prohibiting further publication.

 

Shortly thereafter, Washington Post reporters obtained copies of the Pentagon Papers. At this point, Graham and Bradlee had to decide themselves whether to continue publication of the documents. The arguments against doing so were formidable. The Washington Post corporation was about to issue a public stock offering, and potential violations of federal law would jeopardize its access to capital it desperately needed. There was also the danger that publication would risk harm to national security and undermine American military operations in Asia. Finally, the Post’s lawyers explained that the Post may in fact be covered by the terms of the injunction that had been issued against the Times, and that if the Post was covered by the order, Graham and Bradlee themselves would risk being held in contempt of court and sent to jail if they authorized the Post to print enjoined material.

 

The argument on the other side consisted, of course, of the responsibility of the press to inform the public of government abuses of power so that political leaders can be held accountable for their conduct. But would the First Amendment protect American newspapers in a situation like this one where national security concerns were at stake? Graham agonized over the issue, but ultimately decided to publish the Pentagon Papers. From that point on, the movie raced to an expedited hearing before the United States Supreme Court on these matters, followed shortly by the dramatic announcement in 1971 that the Court decided, 6–3, to rule in favor of the Times and the Post.

 

The Post is a fine movie. But viewers are left unclear about exactly what legal issues the Court resolved in this dispute. Did the justices hold that newspapers can never be prohibited from, or punished for, publishing classified information? If so, why not? Further, what happens if a newspaper violates an injunction prohibiting the publication of a news story and that injunction is ultimately held to be unconstitutional? Would such a finding of unconstitutionality insulate a newspaper’s publisher and editor from being found in contempt of court and punished for their actions? With this background in mind, we are now in position to explain the key legal doctrines/principles that underlie much of the movie’s action.

 

The Rule Against Judicial Prior Restraint

The key issues—whether the Times and Post had the right to publish the classified materials and whether the Supreme Court should affirm an injunction blocking publication of these materials—turn in large part on something known as the rule against prior restraint. This rule, going back hundreds of years, tells courts to be very wary of government attempts to prevent the utterance or publication of speech by prior censorship of speakers. That is ultimately the basis on which the Supreme Court, by a 6-3 vote, rejected the government’s request to block further publication of the Pentagon Papers.


Before the Pentagon Papers case, the most famous prior restraint ruling by the Court was probably Near v. Minnesota, a 1931 case in which the Court held it was unconstitutional for a state law to authorize and a state court to enjoin the publication of “a malicious, scandalous and defamatory newspaper, magazine or other publication” determined to be a nuisance. As the majority opinion in Near made clear, a primary purpose of freedom of the press was to protect publishers against government licensors authorized to review and censor expressive materials before publication. Such prior restraints were particularly pernicious if they were employed by government to prevent the publication of commentary critical of official conduct.

 

To the majority, the judicial injunction issued against a scandalous and defamatory newspaper in the Near case constituted a prior restraint against speech. While such injunctions were not absolutely prohibited by the First Amendment, the Court held that they should be reserved for only the most exceptional of cases. The defamatory content of future articles could very well expose the publisher to punishment for libel after the fact, but that likelihood, standing alone, could not constitutionally justify judicial censorship preventing continued publication of a newspaper containing such content.


Near was a 5–4 decision. The four dissenting justices pointed out that the defendant’s periodical had been determined to be scandalous and defamatory by the court that issued the injunction and was only restricted to the extent the court concluded that future publications were similarly unlawful. The dissenters believed that court orders of this kind (as distinguished from executive branch actions of censorship), should not be considered unconstitutional prior restraints of speech. Unlike Near, in New York Times Co. v. United States—the 6–3 Supreme Court decision hailed in The Post—the Court focused on injunctions against particular articles, the content of which was known to the courts when the injunctions were issued. Here the Court echoed and solidified Near by saying that a judicial injunction against specific speech “carries a heavy burden of showing justification for the enforcement of such a restraint,” a burden not met in the case before it.

 

The rule against judicial prior restraints is to some extent curious. A near-absolute (no pun intended) presumption against judicial orders restricting particular words or publications that are about to be expressed certainly makes sense when the speech at issue is fully protected by the First Amendment, and any after-the-fact attempts to punish its utterance/publication by civil damages or criminal fines or imprisonment would also be prohibited. The idea that speech is fully protected but could nonetheless be blocked by a court would make little sense.

 

But the rule against prior restraints is also employed in settings where the courts assume, or have determined by careful examination, that the proposed speech in question is not protected by the First Amendment, and could lawfully be punished after its utterance. Why do we nonetheless insist that such speech cannot be blocked by judicial order before the fact? Wouldn’t it make sense for us to block speech that is unprotected and will likely cause harm to individuals after it is uttered or published? After all, damages rarely put Humpty Dumpty back together again, especially when reputations and other dignitary interests are at stake, as they often are with regard to unprotected speech.

 

What explains this seeming oddity? One possibility is that after-the-fact damage actions and criminal sanctions must go through a process and involve juries in a way that makes us feel more comfortable than we feel when judges enforce their own judicial orders without jury involvement, which had been the historical practice of enforcing court orders. (More on the power of judges to enforce their own edicts below.) Another possibility is that speech often seems scarier before it is uttered than after, and if we allow judges to block speech based on reasonable fears of the harm it might cause, a great deal more speech will be blocked than would be lost if judges allow the speech to happen and let others decide down the road whether the feared harm materialized (or was sufficiently likely to materialize) such that civil or criminal sanctions are appropriate. The Pentagon Papers may itself be an example of this phenomenon; notwithstanding the grave predictions of harm the government made when it tried to get an injunction against publication, after the materials were more fully published, the government did not make serious efforts to punish the newspapers for any harm they caused.

 

The So-Called Collateral Bar Rule


The stakes for whether an injunction got issued and upheld in The Post were very high indeed. One reason is what we just mentioned: the idea that before-the-fact restrictions on speech are more likely to be adopted than after-the-fact punishments of speech are to occur, because the speech that is uttered often turns out to be relatively harmless after it is expressed. So some speech that might seem so dangerous that judges would want to block it would turn out after-the-fact not to support any punitive civil or criminal sanctions. But to fully understand why the issuance of an injunction is particularly problematic for a would-be speaker, one must understand another legal doctrine—which is not limited to free speech cases but finds special application there—known as the collateral bar doctrine.

 

Under this doctrine, if a person violates a judicial injunction, whether that injunction looks unwise after the fact—and even if a higher court determines that the injunction was improper and illegal from the outset—the person violating it can be punished, even criminally, for contempt of court, so long as the court that issued the injunction had jurisdiction to hear the case. Perhaps the most famous dispute applying the collateral bar rule is Walker v. Birmingham, a 1967 ruling involving efforts by civil rights protestors in Birmingham, Alabama, to hold parades, rallies, and other expressive events. Upon learning of the planned events, Birmingham officials got a state court to issue an injunction against the protests, on the ground that the protestors had not obtained the required permits. Believing that the permitting scheme—and the judicial injunction that essentially incorporated it—was vague, overbroad and in other respects in violation of the First Amendment, the protestors went ahead with their events. The demonstrators were held in contempt and punished by the state court that had issued the injunction. The Alabama Supreme Court affirmed the punishment, and the US Supreme Court, in a 5–4 decision, also affirmed.

 

According to the Court, even though “the breadth and vagueness of the injunction itself” raised substantial concerns about its constitutional validity, the proper course of action for the protestors was to comply with the questionable injunction and appeal it (perhaps on an expedited basis) up the appellate judicial ladder. According to the majority, “respect for the judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”

 

Notice that the collateral bar rule, as it was described in Walker, treats jurisdictional mistakes by courts as being more serious than federal constitutional mistakes: if a court lacks jurisdiction, you may be able to flout its orders, but if a court has jurisdiction and violates your federal constitutional rights, you must obey the order. It is hard to know why jurisdictional limits are more important than constitutional ones.


Notice also that Walker treats unconstitutional actions by judges more respectfully than unconstitutional actions by the legislative or executive branches. As the dissenters in Walker powerfully pointed out, if Congress passes a law, or the president issues an executive order, and you think the statute/order is unconstitutional, you can (assuming you can show a ripe case) go to court to get the statute/order struck down. But you can also, if you want to, simply flout the statute/order, and then assert its unconstitutionality when you are prosecuted for violating it. To be sure, you are running a risk; if you are wrong (or a court disagrees with you) about the statute/order’s unconstitutionality, you can be punished. But if you are right in your understanding of the Constitution (and the courts agree), you will be excused for violating the unconstitutional edict of Congress or the president.

 

But under the collateral bar rule, if you violate an injunction that you (rightly) think violates the First Amendment (or some other aspect of the Constitution), even if the Supreme Court agrees with you that the trial court violated the Constitution in issuing the injunction, you can still be punished for violating the court order that turns out to be illegal. Thus, the only safe way to challenge an arguably unconstitutional injunction is to appeal it—at best seeking expedited review.

 

Why do we force people to appeal judicial injunctions but not file suit and appeal disputes over statutes and executive orders? Why is the “civilizing hand of the law” more present when courts issue their rulings based on their views of the law than when other actors express their vision of what the Constitution permits?

 

Perhaps courts think that other branches no longer consider constitutional permissibility when they act; they refer all such questions to the courts. Maybe that’s true, but if so it is true in part because of doctrines like the collateral bar rule. Relatedly, perhaps courts believe that they are less likely to misinterpret the Constitution less than are Congress and the president; this is an empirical question that would benefit from data on how often trial courts are overturned on constitutional grounds, and how often statutes and executive orders are ultimately invalidated by courts. Or perhaps judges simply want people to respect their handiwork in particular; there are many doctrines (absolute judicial immunity, the failure of the Supreme Court to be legally bound by recusal statutes, etc.) that might be understood to reflect an attitude of judicial privilege or perhaps even judicial arrogance.

 

Regardless of its soundness, the collateral bar rule makes the issuance vel non of the speech-restrictive injunction in cases like the Pentagon Papers dispute hugely important. And this backdrop legal rule, along with the rule against prior restraints, was animating a good bit of the motives, moves, and countermoves that were documented—albeit without much legal explanation—in the worthwhile drama, The Post, recounting a crucially important episode in American history.


November 29, 2016

New Op-Eds by King Hall Faculty

In recent weeks, King Hall faculty have written several opinion pieces for the press.

Kevin R. Johnson in The Sacramento Bee: Trump's Immigration Promises Fraught with Obstacles

The Obama administration used detention aggressively in 2014, when the nation experienced the migration of thousands of women and children fleeing violence in Central America. That detention has resulted in litigation. In addition, the Supreme Court will soon hear a constitutional challenge to detention without possibility for release and any review by a court. Increased use of detention by a Trump administration is likely to result in many lawsuits. Expect those lawsuits to last for years.

Brian Soucek in The Los Angeles Times: Stop Proposition 8, and Marriage Inequality in California, from Making a Comeback

A federal district court judge found Proposition 8 unconstitutional in 2010, but legal appeals kept it alive until 2013, when a U.S. Supreme Court ruling finally allowed same-sex weddings to resume in California. Laws that are found unconstitutional don't get erased; they just lose their legal force. So the text of the ban lies in wait, ready to spring back into action if given the chance. The election of Donald Trump might provide that chance.

Irene Oritseweyinmi Joe in The Los Angeles Times: Like Many Immigrants, I Owe a Debt to the Republican Party - of the 1980s

Imagine their surprise, however, when I let them know that, although I disagreed with some of Reagan's policies, there was one for which I would always be grateful. My family had been undocumented immigrants, and it was the Reagan amnesty program that allowed us to exit the shadows.

Jasmine E. Harris in the Tribune News Wire (providing content for news media around the world): The Right to Vote for People with Mental Disabilities

Beyond physical obstructions to poll sites, voters with mental disabilities -- including learning disabilities, autism, Down syndrome as well as dementia and Alzheimer's -- face an even greater challenge in casting their ballots: deeply entrenched stereotypes that shape election law and policy. The majority of states deny these citizens, either by law or common practice, the right to vote.

Elizabeth Joh in Slate: Five Lessons from the Rise of Bodycams

More than two years after Ferguson became a hashtag, spawned a movement, and drew national attention to problems about police accountability, the most tangible reform has been the spread of police body cameras. Their use seemed like a clear solution to problems of trust and oversight, but the reality hasn't been that simple. Body cameras have introduced new problems of their own. How can we do better when the next new police technology arrives? Here are five things to keep in mind.

Elizabeth Joh in NYTimes.com's Room for Debate: Should the President Be Able to Block You on Twitter?

Like granting the White House press pool access, the president’s social media obligations may ultimately be decided as a matter of custom. In a democratic society that values transparency and accountability, keeping the social media account of a president open to all ought to be part of these customs.

February 23, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 1

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"The One Woman Director Mandate: History and Trajectory" 
CORPORATE GOVERNANCE IN INDIA: CHANGE AND CONTINUITY (ed. Indian Institute of Corporate Affairs) (Oxford University Press, Forthcoming)
UC Davis Legal Studies Research Paper No. 472

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

In 2013, India passed historic legislation mandating that boards of publicly listed and certain other large companies must include one woman director. The mandate, which came into effect on April 1, 2015, has the potential to vastly change the profile of Indian boards and board members. This chapter examines the history and trajectory of India's board diversity requirement. It seeks to understand the genesis and goals of this requirement, and explores some of the challenges that India has already faced and may continue to face with respect to the possible effectiveness of this requirement. The chapter then considers for the Indian context the implications of business and social science literature on gender diversity on corporate boards.

"In Defense of Content Regulation" 
UC Davis Legal Studies Research Paper No. 483

ASHUTOSH AVINASH BHAGWAT, University of California, Davis - School of Law
Email: aabhagwat@ucdavis.edu

Since at least 1972, the central tenet of free speech doctrine has been that if a law regulates speech based on its content, and the speech is not unprotected or "low value," then the law is subject to strict scrutiny and presumptively unconstitutional. Few commentators have seriously questioned this rule, on the assumption that any deviation from it threatens to unleash censorship, and is in any event unnecessary. This article questions that consensus, and identifies specific circumstances in which, it argues, the government should be permitted to discriminate based on content.

The article begins by identifying a variety of situations in which courts have regularly evaded the general presumption against content regulation, even though the speech at issue was in principle fully protected. The core insight of this article is that these evasions make sense. The corollary of the rule against content discrimination is a presumption that all (fully protected) speech should be treated as equally valuable. But this presumption itself conflicts with the Supreme Court's repeated assertions that the First Amendment values certain speech - speech relevant to democratic self-governance - above all other forms of speech. So, all speech is not equal. Moreover, there are specific circumstances in which it is profoundly irrational to treat all speech as equally valuable. The core example is physical scarcity of speech opportunities. Here, some speech must be allowed, at the expense of other speech. Why not, then, favor more over less valuable speech? Yet current doctrine forbids this choice. The article goes on to identify other specific, objectively definable situations where the presumption against content regulation should be reconsidered. It concludes by exploring, and rejecting counterarguments.

"Information Goes Global: Protecting Privacy, Security, and the New Economy in a World of Cross-Border Data Flows" 
E15Initiative. Geneva: International Centre for Trade and Sustainable Development (ICTSD) and World Economic Forum, 2015.
UC Davis Legal Studies Research Paper No. 480

USMAN AHMED, eBay Inc.
Email: uahmed2@gmail.com
ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

This paper addresses the question of whether it is possible to balance the need for a free flow of information across borders with legitimate government concerns related to public order, consumer privacy, and security. The paper begins by highlighting the risks associated with limitations on free information flows and the policy concerns that lead to these limitations. The paper then provides an analysis of the current international regime on cross-border information flows. The authors argue that specific binding trade language promoting cross-border flows - combined with continued international cooperation - will enhance, rather than undermine, public order, national security, and privacy.

"Should Rape Shield Laws Bar Proof that the Alleged Victim Has Made Similar, Untruthful Rape Accusations in the Past?: Fair Symmetry with the Rape Sword Laws" 
Pacific Law Journal, Forthcoming
UC Davis Legal Studies Research Paper No. 478

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

Traditionally, the common law enforced a general ban on character evidence. More specifically, the common law prohibited a proponent from introducing evidence of a person's other conduct as proof of the person's character trait and then using the trait as proof that on a particular relevant occasion, the person acted consistently with the trait. The prohibition applied to both sides in criminal as well as civil cases. Federal Rules 404-05 extend the prohibition to evidence on the historical merits, and to an extent Rules 608-09 apply the ban to evidence offered on a credibility theory. Rule 608(b) deviates from the ban by permitting cross-examination about a witness's other untruthful acts but bars extrinsic evidence of the acts.

In 1995 Congress enacted the "rape sword" statutes, Rules 413-14. The statutes carve out an exception to the traditional prohibition and allow the prosecution to introduce evidence of an accused's other sexual assaults or child molestations on a character theory to prove the accused's commission of the charged offense. The available psychological research does not warrant drawing a character inference when there is only one or a few other instances of similar conduct. However, the proponents of the statutes contend that the statutes are defensible because these prosecutions often devolve into swearing contests and the prosecution has a legitimate need for evidence to break the credibility tie by corroborating the victim's testimony that the offense occurred.

Especially since 1995, in these prosecutions the defense has attempted to introduce evidence, including extrinsic testimony, of similar, untruthful accusations by the complainant. However, the prosecution has objected that such evidence runs afoul of the prohibitions in Rules 404-05, 608, and 412, the rape shield statute. A few jurisdictions have construed these statutes as banning the defense evidence. However, many jurisdictions allow defense cross-examination about similar, untruthful accusations. Even in these jurisdictions, though, the courts ordinarily exclude extrinsic proof.

The first thesis of this article is that the courts should permit cross-examination when the defense has sufficient proof that the prior accusation was untruthful. Like prosecution evidence proffered under Rules 413-14, this evidence is logically relevant on a character reasoning theory.

Moreover, if the proponents of the rape sword statutes are correct, like the government the defense has an acute need for evidence to prevail in the swearing contest. Just as evidence of other offenses by the accused corroborates the complainant's testimony that the accused attacked him or her, evidence of the complainant's prior, untruthful accusations corroborates the accused's testimony that the complainant has fabricated the charge against the accused.

The second thesis of this article is that as a matter of policy, extrinsic evidence of the prior similar accusations should be admissible. Admittedly, Rule 608(b) purports to enunciate an absolute ban on extrinsic evidence of prior untruthful acts. However, Rule 608(b) is the only impeachment technique subject to a rigid, absolute prohibition of extrinsic evidence; and the wisdom of singling out 608(b) impeachment is questionable. Furthermore, the accused has an extraordinary need for extrinsic evidence in 413-14 cases. Women and children who are the alleged victims of these offenses are exceptionally sympathetic figures on the witness stand; and if the defense cannot disprove the alleged victim's denial on cross-examination, the cross-examination is likely to be counterproductive - the jurors may conclude that the cross-examination was a second, cruel victimization of the complainant. At least in this context, if the law is going to permit inquiry about prior, untruthful accusations, the defense ought to have the right to resort to extrinsic evidence.

The rape sword statutes impact the balance of the criminal justice system in Rule 413-14 prosecutions. To maintain the essential balance of the adversary system in these cases, Evidence law should permit the defense to introduce extrinsic evidence of the complainant's prior, similar, untruthful accusations.

"Back to the Future? Returning Discretion to Crime-Based Removal Decisions" 
New York University Law Review Online, Vol. 90, 2016, Forthcoming
UC Davis Legal Studies Research Paper No. 479

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

Jason A. Cade has powerfully advocated for returning greater discretion to the courts and agencies in making and reviewing Executive Branch decisions to remove noncitizens from the United States. His latest article, Return of the JRAD, 90 NYU L. REV. ONLINE 36 (2015), calls for a revival of a now-discarded procedural device of allowing courts sentencing noncitizen criminal defendants to make a "Judicial Recommendation Against Deportation" (JRAD) that would bar the Executive Branch from removing a noncitizen from the United States.

Congress eliminated the JRAD from the immigration laws in 1990. In calling for its comeback, Cade points to a ruling by respected federal district court judge Jack Weinstein. In United States v. Aguilar, the judge issued a sentencing order that, despite the fact that Congress abolished the JRAD a quarter century ago, resembled the old recommendations against deportation. The court thus went beyond the law on the books to advocate against the removal from the United States of a one-time, non-violent criminal offender with U.S. citizen children.

One might dismiss Judge Weinstein's recommendation as mere dicta. However, Jason Cade views the order as a much-needed sign of judicial resistance to the harsh criminal removal provisions of the immigration laws. He seeks to return discretionary authority to the courts to ensure greater proportionality and reasonableness to contemporary removal decisions.

Part I expresses full agreement with Jason Cade's conclusion in Return of the JRAD that the modern criminal removal system fails to protect against unfair removals of immigrants.

Part II adds a powerful justification to the call for the reform of the modern criminal removal system - namely, the serious concerns with the overwhelming modern racial disparities in removals, which directly flow directly from racial disparities in the operation of the modern criminal justice system in the United States. The contemporary criminal removal regime has disparate impacts on Latina/o immigrants, who today comprise the overwhelming majority of the persons deported from the United States. In fact, the modern removal system might accurately be characterized as a Latina/o removal system. The racial impacts of contemporary criminal removals alone warrant a wholesale reconsideration of criminal removals under current American immigration law.

Part III considers separation of powers concerns in the administration of the immigration laws. Jason Cade indirectly raises a critically important question concerning the branch of the federal government that is best equipped - constitutionally and politically - to curb the excesses of the modern criminal removal system. Fundamental separation of powers principles suggest that Congress should be the focus of reforms.

The challenging political question posed to reformers is how to convince Congress to dismantle the mandatory criminal removal regime that it built. As politicians frequently employ anti-immigrant themes for political gain, noncitizens with criminal convictions continue to be among the most reviled of all immigrants in American politics. Only through a political change of heart can Congress begin to restore discretion to removal decisions and better ensure that respect is afforded to the weighty human interests of immigrants, their families, and communities.

"The Law of Look and Feel" 
UC Davis Legal Studies Research Paper No. 482

PETER LEE, University of California, Davis - School of Law
Email: ptrlee@ucdavis.edu
MADHAVI SUNDER, University of California, Davis - School of Law
Email: msunder@ucdavis.edu

Design is the currency of corporations, and increasingly, under the Demsetzian logic, the subject of property claims by them. The world's biggest company owes its value largely to design. Where once Apple's claim to own its popular graphical user interface was rebuffed readily by courts, today, design-related claims lead to billion dollar judgments in Apple's favor. Today design - which includes everything from shape, color, and packaging to user interface, consumer experience, and organizational structure - plays a central role in the modern economy and is increasingly the subject of intellectual property law's attention.

But the law of design is confused and confusing. It is splintered among various doctrines in copyright, trademark and trade dress, and patent law. Indeed, while nearly every area of modern IP law has been marshalled in the service of design protection, the law has taken a siloed approach, with separate disciplines developing ad hoc rules and exceptions to design protection. To make matters worse, different disciplines within IP use similar terms and concepts - functionality, consumer confusion - but apply them in wholly different, even contradictory ways.

This Article provides the first comprehensive assessment of the regulation of consumers' aesthetic experiences in copyright, trade dress, and patent law - what we call "the law of look and feel." We canvas the diverse ways that parties have utilized (and stretched) intellectual property law to protect design in a broad range of products and services, from Pac-Man to Louboutin shoes to the iPhone, from the "feel of the '70s" captured in Marvin Gaye's music, the scantily clad employees of Abercrombie & Fitch, and the décor of Mexican restaurants, to Apple's technologies of "pinch to zoom," "bounce-back" and "rubberbanding." In so doing, we identify an emergent "law of look and feel" that finds unity among the diversity of IP laws protecting aesthetic experience. Going further, we argue that the new enclosure movement of design, if not comprehensively reformed and grounded in theory, can in fact erode innovation, competition, and cultural cohesion itself.

"Justice in the Hinterlands: Arkansas as a Case Study of the Rural Lawyer Shortage and Evidence-Based Solutions to Alleviate It" 
University of Arkansas at Little Rock Law Review, Vol. 37, 2015
UC Davis Legal Studies Research Paper No. 481

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
J. CLIFF MCKINNEY, Quattlebaum, Grooms & Tull PLLC
Email: cmckinney@QGTlaw.com
BART CALHOUN, McDaniel, Richardson & Calhoun
Email: Calhoun.bart@gmail.com

In recent years, state high courts, legislatures, bar associations, and other justice system stakeholders have become aware that a shortage of lawyers afflicts many rural communities across the nation and that this dearth of lawyers has implications for access to justice. A lack of systematically collected data about precisely where lawyers are - and are not - in any given state is an obstacle to solving the problem. Another impediment is a lack of information about why lawyers are choosing not to practice in rural locales and about the sorts of incentives that might entice them to do so.

A principal aim of this article and the empirical work that informs it is to begin to develop evidence that will inform solutions to the rural lawyer shortage. In that regard, the article, written for the UALR Bowen "Access to Justice" symposium, makes two significant contributions. The first is to literally map where Arkansas lawyers are and then to look for trends and patterns regarding the least-served communities. The second is to survey law students and attorneys to determine their attitudes toward rural practice and rural living more generally, while also assessing openness to specific opportunities and incentives aimed at attracting lawyers to underserved communities.

We focused our analysis on Arkansas's 25 least populous counties, which we refer to as the "Rural Counties." All except one of these counties has a population of less than 15,000. Collectively, the Rural Counties are home to some 255,000 residents but fewer than 200 total lawyers, less than half of whom accept clients for representation, as signified by having an IOLTA Account. Representing a third of the state's 75 counties, the Rural Counties lie in clusters in each of the state's four quadrants, and most are relatively distant from state and regional population centers. Among these counties, we found no clear correlation between high poverty and low ratios of attorneys to population. As a general rule, the Rural Counties that are farthest from a metropolitan area have the most acute attorney shortages, although several counties in the Mississippi Delta stood out as exceptions. Not surprisingly, the attorney population in Arkansas's Rural Counties is an aging one. We also found that many other nonmetropolitan counties - those with populations somewhat larger than the Rural Counties - have poor attorney-to-population ratios, suggesting that attorney shortages are on the horizon there, too.

Meanwhile, Arkansas's attorneys tend to be highly concentrated in the state's population centers, with particular overrepresentation in Pulaski County (the state's most populous county and home to state capital Little Rock) and two contiguous central Arkansas counties: 48% of the state's attorneys are a mismatch for just 21% of the state's population in those three counties. The state's second and third most populous counties, Benton and Washington, in the state's booming northwest corridor, have attorney populations more commensurate with their populations.

Our survey of students at the state's two law schools revealed few student respondents who grew up in or had spent much time in Arkansas's Rural Counties or in similarly low-population counties in other states. Further, only a handful of students indicate that they plan to practice in the state's nonmetropolitan areas, let alone the Rural Counties specifically. Nevertheless, many students - particularly among those who grew up in the Rural Counties - expressed openness to working in these counties if given specific opportunities and incentives to do so. When asked about what deterred them from pursuing rural practice, the most dominant theme was concern about economic viability; a lack of cultural and other amenities associated with urban living was a close second. Some students also expressed concern about the greater challenge of finding a life partner in rural places. A number of students expressed very negative attitudes toward rural people, places and practice. Recurring themes included an expectation of rural bias toward racial and sexual minorities and women; concerns about lack of anonymity in the community and lack of professionalism in the justice system; and a shortage of clients able to afford an attorney's services. Still, a critical mass - certainly enough to meet the need in Arkansas's rural communities - indicated willingness to practice in a rural locale if provided fiscal and professional supports, e.g., student loan repayment assistance, mentoring, training in law practice management. When the few students who indicated their intent to practice in a rural area were asked about what they found appealing about such a prospect, the most common theme was autonomy - the ability to have one's own practice and to develop and maintain local clientele.

Respondents to the lawyer survey were generally less negative about rural practice than their law student counterparts. On the whole, most attorneys expressed contentment with their practice location, whether rural or urban. One surprise among the lawyer survey results was that employment opportunities for spouses were less important than we anticipated, perhaps because urban lawyers - the vast majority of survey respondents - take these for granted.

We close with suggested reforms for Arkansas's institutional stakeholders. Among other actions, we suggest that Arkansas follow the lead of South Dakota and offer loan repayment assistance to attorneys who are willing to make a multi-year commitment to practice in an underserved rural area. This incentive has proved popular in South Dakota, which has doubled the size of its program in just two years in response to a high degree of attorney interest. Our survey results give us every reason to believe that such a program, as well as other interventions to bolster the rural lawyer population in Arkansas, could be just as successful. In any event, we anticipate that our efforts to document in detail the rural attorney shortage in Arkansas will provide an incentive - and, we hope, a model - for other states wishing to better understand and alleviate their rural access-to-justice deficits.

"How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study" 
UC Davis Law Review, Vol. 49, 2016
UC Davis Legal Studies Research Paper No. 477

DONNA SHESTOWSKY, University of California, Davis - School of Law
Email: dshest@ucdavis.edu

This Article presents findings from the first multi-court field study examining how civil litigants evaluate the characteristics of legal procedures shortly after their cases are filed in state court. Analyses revealed that litigants evaluated the characteristics in terms of control - i.e., whether the characteristics granted relative control to the litigants themselves or to third parties (e.g., mediators, judges). Although the litigants indicated a desire to be present for the resolution process, they preferred third-party control to litigant control. They also wanted third parties to control the process more than the outcome. Gender, age group, and case-type significantly predicted attraction to third-party control, whereas attraction to litigant control was predicted by whether litigants had a pre-existing relationship with each other, how much they valued a future relationship with the opposing party, party type, the type of opposing party, and court location. Implications for legal policy and lawyering are discussed.

September 25, 2015

Corporations, the Constitution, and the Rights of Others

Cross-posted from Columbia Law School's Blue Sky Blog.

The Supreme Court's protection of corporate political expenditures in Citizens United v. FEC and corporate religious exercise in Burwell v. Hobby Lobby has rekindled perennial fears about the influence of corporations in U.S. politics and policy. One popular response has been to argue for stripping corporations of constitutional rights. For example, the proposed "People's Rights Amendment" would exclude corporations from the categories of "people, person, or citizen as used in this Constitution,"[1] thus denying corporations the constitutional rights of human individuals.

Unfortunately, denying corporate constitutional rights is unlikely to have much effect. Insofar as the Supreme Court has protected corporations under the Constitution, that protection does not expressly rely on the notion that a corporation per se has constitutional rights. To the contrary, a central strategy of the Court's corporate constitutional jurisprudence has been to avoid deciding whether corporations are the holders of constitutional rights. Constitutional decisions protecting corporations have not been based on the rights of corporate "persons," but on the less controversial rights of human persons. That is, "corporate" constitutional rights are actually based on the rights of others.

The Court does this in two ways. First, it sometimes treats a corporation as no more, and no less, than an "aggregation" of human individuals whose rights are the real rights implicated in corporate constitutional questions. Hobby Lobby expressly states the Court's reasoning: the corporate "person" is merely "a familiar legal fiction" created to protect the rights of "the people (including shareholders, officers, and employees) who are associated with the corporation." Thus the Fourth Amendment prohibits unreasonable search and seizure of corporate papers because such papers implicate the property and privacy rights of individuals. By contrast, a corporate entity cannot invoke the Fifth Amendment's protection against self-incrimination, because no individual's rights are compromised when a corporation (in contrast to, say, a CEO) is compelled to incriminate itself.

In the First Amendment free speech context, the Court bases corporate protection on individuals' rights in a second, very different way. The so-called "listeners' rights" theory of the First Amendment protects the public's right to hear messages, and thus requires neither a corporate nor an individual "right" to speak. Thus in Citizens United (and earlier, in First National Bank v. Bellotti (1978)) the Court held that corporate political spending must be protected in order to protect voters' First Amendment rights to receive diverse sources of political information.

The Court, then, has avoided the mistake of equating corporations with human individuals for constitutional purposes. However, its "rights of others" approach suffers from a different error: a fundamental misunderstanding of the corporate decisionmaking process. In the "aggregation" cases, the Court purports to protect the individuals associated with the corporation, but this erroneously assumes that the corporation's acts are in effect the acts of those individuals. The Court makes a similar error with respect to corporate political spending. Even if listeners have an interest in hearing corporate messages, that may conflict with the rights of the corporation's constituent individuals if they disagree with those messages. Citizens United dismissed this concern on the ground that shareholders control a corporation's messages through "corporate democracy."

Small, family-run corporations, such as that involved in Hobby Lobby, may accurately represent the wishes of their constituents.  The same is not true of larger corporations, however.  Corporate law does not, and is not intended to, run corporations in a "democratic" way. Rather, in the interests of money-making efficiency, the law concentrates power in professional managers. They enjoy nearly unreviewable discretion to control the resources of the corporation with negligible input from shareholders.

As intended, this arrangement is likely to benefit shareholders financially. But it does not protect them from corporate political spending or other speech acts they disagree with. Shareholders can sue management only for deliberate malfeasance, and political spending has been treated as a proper matter for management discretion. Furthermore, the Court itself has stated that corporate rights are meant to protect not only shareholders, but also other corporate constituents, such as employees. Those individuals, however, have even less power than shareholders with respect to corporate decisionmaking. Employees cannot vote in corporate elections and can be fired for disagreeing with management.

The protection of corporate constituents may present a compelling state interest justifying the regulation of corporate speech. Corporate political spending in particular could compromise the speech and property interests of corporate constituents who may disagree with the political message. This argument questions the reasoning of Citizens United, and is consistent with the proposed "Democracy for All Amendment," which would expressly permit campaign finance law to regulate corporations and natural persons differently.[2]

ENDNOTES

[1] See S.J. Res. 18 & H.J. Res. 21, 113th Cong. (1st Sess. 2013). I should disclose that I am a member of the Legal Advisory Committee of Free Speech for People, an advocacy group that supports this amendment, as well as the "Democracy for All Amendment," discussed below. See Free Speech for People, www.freespeechforpeople.org.

[2] See S.J. Res. 19 & H.J. Res. 119, 113th Cong. (2nd Sess. 2014).

The post is adapted from the recent article, Corporations and the Rights of Others, 30 Const. Comment. 335 (2015), which is available here.

September 2, 2015

New Faculty Research: Legal Studies Research Paper Series, Vol. 17 No. 4

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

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

"Business and Human Rights Litigation in U.S. Courts Before and after Kiobel" 
UC Davis Legal Studies Research Paper No. 440

WILLIAM S. DODGE, University of California, Davis, School of Law
Email: dodgew@uchastings.edu

This Chapter examines the landscape for business and human rights cases in U.S. courts under the Alien Tort Statute (ATS) both before and after the U.S. Supreme Court's 2013 decision in Kiobel v. Royal Dutch Petroleum Co. It concludes that such cases today face a series of challenges, including personal jurisdiction, the question of corporate liability, the standard for aiding and abetting liability, and satisfying Kiobel's "touch and concern" test.

"Employment Arbitration after the Revolution" 
DePaul Law Review, Vol. 65, 2016 Forthcoming
UC Davis Legal Studies Research Paper No. 443

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu
ANDREA CANN CHANDRASEKHER, University of California, Davis - School of Law
Email: achandrasekher@ucdavis.edu

This invited contribution to the DePaul Law Review's Clifford Symposium on Tort Law and Social Policy examines 5,883 cases initiated by employees in the American Arbitration Association between July 1, 2009 and December 31, 2013. Its goal is to shed light on the state of employment arbitration after the U.S. Supreme Court's watershed opinions in Rent-A-Center West, Inc. v. Jackson and AT&T Mobility LLC v. Concepcion.

It finds that employees have filed fewer cases since Concepcion. It also determines that employees "win" - defined as recovering an award of $1 or more - 18% of matters. Finally, it performs logit regressions to investigate the impact of several variables on case outcomes. It concludes that employees are less likely to be victorious when they face a "high-level" or "super" repeat playing employer. Conversely, fact that a case involves a "repeat pairing" - an employer that has appeared at least once before the same arbitrator - does not influence win rates.

"The Ambivalence in the American Law Governing the Admissibility of Uncharged Misconduct Evidence" 
Proceedings of the Fifth International Conference on Evidence Law and Forensic Science, Forthcoming
UC Davis Legal Studies Research Paper No. 438

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

The English common-law courts gave birth to the character evidence prohibition and helped spread the prohibition throughout the common-law world. Under the prohibition, a prosecutor may not introduce testimony about an accused's uncharged misconduct on the theory that the uncharged misconduct shows the accused's propensity to commit crimes and that in turn, the propensity increases the probability that the accused committed the charged offense. According to the orthodox version of the prohibition, the government may introduce the testimony only if the prosecutor can demonstrate that the evidence is logically relevant on a non-character theory, that is, a theory that does not entail an assumption about the accused's personal, subjective bad character.

Today, though, in much of the common-law world, by virtue of case law and legislation the prohibition is no longer in effect as a rigid, categorical rule. Rather, the courts may admit uncharged misconduct as character evidence when, in their view, the character trait has special relevance or there is striking similarity between the charged and uncharged offenses. In contrast, in the United States the prohibition survives largely intact as a categorical rule. Indeed, the general prohibition is codified in Federal Rule of Evidence 404(b); and the vast majority of states have a statute or court rule modeled after 404(b). Yet, today there is an ambivalence in the American law governing the admissibility of uncharged misconduct:

In federal practice and three handfuls of states, the prohibition has been selectively abolished. For example, Federal Rules 413-14 abolish the prohibition in prosecutions for sexual assault and child molestation. Congress enacted the rules over the vocal opposition of both the Judicial Conference and the A.B.A. and despite empirical data indicating that revidivism rates for those crimes are lower than the rates for many other offenses such as property crimes.

At the same time, in other types of prosecutions there is a marked trend to toughen the standards for admitting uncharged misconduct evidence. Substantively, a number of American jurisdictions have tightened the requirements for both the plan and "res gestae" theories for introducing uncharged misconduct. Procedurally, several jurisdictions have imposed new pretrial notice requirements, demanded that the prosecution explicitly articulate a complete, non-character theory of relevance on the record, and forbidden trial judges from giving "shotgun" jury instructions which do not specify the particular non-character theory that the prosecution is relying on. The distinction between character and non-character theories can be a thin line, and all these steps have been taken to ensure that any uncharged misconduct admitted possesses genuine non-character relevance and is used for only that purpose during deliberations.

Some find the current ambivalence of American law dissastifying and urge that American jurisdictions resolve the tension by following the example of other common-law jurisdictions that have abandoned a general, rigid prohibition. However, doing so would be at best premature. There has yet to be a comprehensive investigation of the trial-level impact of Rules 413-14. Moreover, the most recent psychological research calls into question the validity of inferring a person's character or disposition from a single act or a few instances of conduct-which is what Rules 413-14 authorize a jury to do. Finally, American courts should be especially solicitous of the policy protecting accused from being punished for their bad character. In the United States, that policy has special importance; the Supreme Court has held that the Eighth Amendment ban on cruel and unusual punishment forbids status offenses. If an American jury succumbed to the temptation to punish an accused for his or her past - nothwithstanding a reasonable doubt about their guilt of the charged offense - the conviction would impinge on a policy with constitutional underpinning.

"The Myth of Arrestee DNA Expungement" 
University of Pennsylvania Law Review Online, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 447

ELIZABETH E. JOH, University of California, Davis - School of Law
Email: eejoh@ucdavis.edu

Building on a trend that began with collecting DNA from convicted offenders, most states and the federal government now collect DNA from felony arrestees. The national DNA database now contains information on more than 2 million arrestees. While some of these arrests will result in guilty pleas or convictions, a substantial number will not. In fact, in many cases arrests lead to dismissed criminal charges or no charges at all. Should these arrestees forfeit their genetic information nevertheless? Every jurisdiction that collects arrestee DNA permits eligible arrestees to seek the expungement of their genetic profiles. While formal expungement is the law, it turns out that arrestee DNA expungement is largely a myth. In most states that collect arrestee DNA, the initial decision by the police to arrest that person turns out in most cases to lead to the permanent collection and retention of the arrestee's genetic information, regardless of whether charges are dismissed or never brought at all. This essay is the first to provide preliminary data on actual arrestee DNA expungement, and argues for quick, efficient, and state-initiated expungement procedures.

"Race-Based Law Enforcement: The Racially Disparate Impacts of Crimmigration Law" 
Case Western Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 437

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This Essay was prepared for the Case Western Law Review's symposium on the 20th anniversary of the Supreme Court's decision in Whren v. United States, 517 U.S. 806 (1996). Racially-charged encounters with the police regularly make the national news. Local law enforcement officers also have at various times victimized immigrants of color. For example, New York City Department (NYPD) officers in 1999 killed Amadou Diallo, an unarmed immigrant from Guinea, in a hail of gunfire; two years earlier, officers had tortured Haitian immigrant Abner Louima at a NYPD police station. Both victims were Black, which no doubt contributed to the violence. In less spectacular fashion, police on the beat by many accounts regularly engage in racial profiling in traffic stops of U.S. citizens and noncitizens of color.

Removals of "criminal aliens" have been the cornerstone of the Obama administration's immigration enforcement strategy. Well-publicized increases in the number of removals of immigrants also have been the centerpiece of President Obama's political efforts to persuade Congress to pass a comprehensive immigration reform package. The hope behind the aggressive enforcement strategy has been to convince Congress that this is the time to enact comprehensive immigration reform.

In the last few years, a body of what has been denominated "crimmigration" scholarship has emerged that critically examines the growing confluence of the criminal justice system and the immigration removal machinery in the United States. That body of work tends to direct attention to the unfairness to immigrants, as well as their families, of the increasing criminalization of immigration law and its enforcement. This Essay agrees with the general thrust of the crimmigration criticism, but contends that it does not go far enough. Namely, the emerging scholarship in this genre fails to critically assess the dominant role that race plays in modern law enforcement and how its racial impacts are exacerbated by the operation of a federal immigration removal process that consciously targets "criminal aliens."

Part I of this Essay considers parallel developments in the law: (1) the Supreme Court's implicit sanctioning of race-conscious law enforcement in the United States, with the centerpiece of this symposium, Whren v. United States, the most well-known example; and (2) the trend over at least the last twenty years toward increased cooperation between state and local law enforcement agencies and federal immigration authorities. Part II specifically demonstrates how criminal prosecutions influenced by police reliance on race necessarily lead to the racially disparate removal rates experienced in the modern United States. Part III discusses how some state and local governments have pushed back on cooperation with federal immigration authorities, with effective community police practices being an important policy rationale invoked by local law enforcement for that resistance. Part III of this Essay further contends that more attention should be paid to the racially disparate impacts of linking immigration removals to the outcomes of a racially-tainted criminal justice system. It further sketches some modest reforms to the U.S. immigration laws that might tend to blunt, rather than magnify, some of these racial impacts.

"Corporate Speech and the Rights of Others" 
30 Constitutional Commentary 335 (2015)
UC Davis Legal Studies Research Paper No. 442

THOMAS WUIL JOO, University of California - Davis Law School
Email: twjoo@ucdavis.edu

The Supreme Court is often erroneously criticized for giving business corporations the constitutional rights of human persons. In fact, constitutional decisions protecting corporations tend to be based not on the rights of corporate "persons," but on the rights of other persons: human individuals such as shareholders or persons who listen to the content of corporate speech. Shareholders' property and privacy interests have been invoked to protect corporations from regulatory takings and from unreasonable searches, for example.

In the First Amendment context, Citizens United and other opinions have invoked the rights of others in a different way, invalidating corporate speech regulations on the ground that they infringe upon the public's right to hear corporate messages. These "rights of others," however, can conflict with the rights of other others: corporate shareholders who might not want corporate assets used to express such messages.

The Court has dismissed this concern with the inaccurate assertion that shareholders control a corporation's messages through "corporate democracy." This contention, and not corporate constitutional "personhood," is the true fallacy of corporate speech jurisprudence. Corporate governance is not democratic. In the interests of money-making efficiency, the law concentrates power in professional managers. As intended, this arrangement is likely to benefit shareholders financially. But it does not give them meaningful input into corporate decision-making, leaving them open to the misuse of corporate property. Thus the "rights of others" may justify the regulation of corporate speech.

"Remembrance of Early Days: Anchors for My Transactional Teaching" 
UC Davis Bus. L.J. 107, 2014
UC Davis Legal Studies Research Paper No. 444

EVELYN A. LEWIS, University of California, Davis - School of Law
Email: ealewis@ucdavis.edu

This essay discusses teaching transactional skills as part of traditional non-clinical, substantive law classes. It offers a very personal perspective gleaned from the author's 40 years of combined experience as a San Francisco transactional law practitioner and law professor. Of necessity, due to length constraints, the author offers only a few selected opinions about what she thinks works in teaching transactional skills in substantive law classes. Despite this limited focus, the author weighs in, at least a bit, on a myriad of subjects, including the current push for law graduates to be more "practice ready," the importance of skin-in-the-game type mentoring both pre- and post- law school graduation, the different challenges in training transactional lawyers versus litigators, the merits of using multifaceted large drafting projects versus more discrete problems, course advising needs, the teacher as recruiter, balancing desires for breath versus depth of exposure, and using what the author calls factual "side-bars" as accommodation of traditional casebooks to the transactional perspective. The author hopes these offerings of her matured discernment from longevity in the field of transactional law skills training, in the various iterations she notes in the essay, provide some helpful insights to current teachers of transactional law skills, both clinical and non-clinical.

"A New Understanding of Substantial Abuse: Evaluating Harm in U Visa Petitions for Immigrant Victims of Workplace Crime" 
Georgetown Immigration Law Journal, Vol. 29, 2015
UC Davis Legal Studies Research Paper No. 439

EUNICE HYUNHYE CHO, Southern Poverty Law Center
Email: eunice.cho@splcenter.org
GISELLE A HASS, Georgetown University - Center for Applied Legal Studies
Email: Giselle.Hass@gmail.com
LETICIA M. SAUCEDO, University of California, Davis - School of Law
Email: lmsaucedo@ucdavis.edu

This Article examines the legal concept of "substantial physical or mental abuse" suffered by immigrant victims of crime in the workplace, particularly as it relates to the ability to qualify for U non-immigrant status (commonly referred to as a "U visa"). Enacted for the dual purposes of strengthening law enforcement capacity and providing humanitarian relief to victims of crime, the U visa allows non-citizen victims of crime who are helpful in a crime's detection, investigation, or prosecution to remain in the United States, obtain employment authorization, and attain lawful permanent residency. To qualify for the visa, victims must demonstrate that they have suffered "substantial physical or mental abuse" as a result of the criminal activity.

Although legal scholars, medical and mental health experts, and government agencies have more robustly explored the concept of "substantial physical or mental abuse" in the context of domestic violence and sexual assault against immigrant women, there has been no focused exploration of this concept in relation to abuse of immigrant workers. In recent years, labor and civil rights enforcement agencies have increasingly certified U visa petitions in cases involving victims of workplace crime, but greater clarity is needed on the concept of substantial abuse in this context.

This Article provides for the first time a comprehensive framework to evaluate abuse suffered by victims of workplace crime in the U visa context. Based on a multi-disciplinary analysis, the Article argues that adjudicators have erroneously conflated the U visa's "substantial physical or mental abuse" standard with the standard of "extreme cruelty" developed in the context of immigration remedies for victims of domestic violence. The Article also argues that U visa adjudicators and advocates must account for the specific dynamics of abuse experienced by immigrant victims of workplace-based criminal activity, which are distinct from abuse displayed in more familiar cases of domestic violence, and examines particular forms of harm and vulnerabilities experienced by victims of workplace crime. The Article finally provides examples to assist adjudicators, policy-makers, and practitioners in the identification and assessment of workplace based U visa cases envisioned by the U visa statute and regulations.

"The Implications of Alabama Department of Revenue v. CSX Transportation Inc. and Direct Marketing Association v. Brohl" 
State Tax Notes, Vol. 76, No. 6, 2015
UC Berkeley Public Law Research Paper No. 2616561
UC Davis Legal Studies Research Paper No. 441

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

This essay analyzes the implications of two recent Supreme Court cases on state and local taxation: Alabama Department of Revenue v. CSX Transportation Inc. and Direct Marketing Association v. Brohl. We argue that both of these decisions not only fail to resolve major issues in state and local taxation, but actually unsettle these issues.

"The Last Preference: Refugees and the 1965 Immigration Act" 
Forthcoming in The Immigration and Nationality Act of 1965: Legislating a New America (Gabriel J. Chin & Rose Cuison Villazor eds., 2015).
UC Davis Legal Studies Research Paper No. 446

BRIAN SOUCEK, University of California, Davis - School of Law
Email: bsoucek@ucdavis.edu

The 1965 Immigration Act is remembered - and celebrated - for having replaced an immigration system driven by national origins with a preference system privileging family ties and occupational skills. But while the rest of the 1965 Act, in President Johnson's words, welcomed immigrants "because of what they are, and not because of the land from which they sprung," the last of its preferences, given to refugees, emphatically did not. Not only did the 1965 Act fail to embrace the 1951 U.N. Refugee Convention's protection for refugees persecuted because of their nationality, the Act itself discriminated on the basis of refugees' nationality. To qualify, those persecuted had to hail from a "Communist or Communist-dominated country" or "the general area of the Middle East." A separate provision allowed for entry of those "uprooted by catastrophic natural calamity as defined by the President."

By tying refugees' status to "the land from which they sprung," to America's anti-Communist foreign policy and national security interests, and, importantly, to the discretion of the President, the 1965 Act's refugee provision suggests a counter-narrative to descriptions of the Act as part the domestic anti-discrimination agenda of the mid-1960s, or as a reassertion of Congressional control over immigration. The 1965 Act turned refugee policy into another weapon of the Cold War, to be deployed largely as the President chose. It would be another fifteen years before Congress again attempted (or at least purported) to do for refugees what the 1965 Act did for most other immigrants: end national origin discrimination and formalize the criteria and procedures governing admission to the United States.

"Chae Chan Ping v. United States: Immigration as Property" 
Oklahoma Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 445

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

In this symposium Essay, I explore an overlooked aspect of Chae Chan Ping v. United States: Ping's argument that his exclusion from the United States under the Chinese Exclusion Act violated his property right to re-enter the United States. In particular, Ping contended that the government-issued certificate that he acquired prior to leaving the United States gave him the right to return to the United States. Such right was based on "title or right to be in [the United States] when the writ issued." Importantly, Ping claimed that this right could not be "taken away by mere legislation" because it was "a valuable right like an estate in lands." Similar to his other claims, the Supreme Court rejected this property argument. The Court's treatment of his property claim is understandable because Ping's contention may perhaps be described as "new property," which did not become legible to courts until several decades later.

In reconsidering Ping's property arguments, I aim to achieve two goals. First, as a thought piece, this Essay aims to show what the plenary power doctrine might have looked like had Ping succeeded in convincing the Court that his right to return constituted a property right. Second, this Essay highlights the intersections between property law and immigration law and the ways in which individual property rights might serve as limiting principles to the Supreme Court's formulation of the nation's absolute right to exclude non-citizens from the United States.

July 1, 2015

What the Supreme Court Should Have Said in the Confederate Flag Texas License Plate Case

Cross-posted from Justia's Verdict.

Display of the Confederate battle flag on government-owned property has certainly gotten a lot of attention of late. The Supreme Court ruled 5-4 a few weeks ago, in Walker v. Texas Division, Sons of Confederate Veterans, Inc., that Texas could, consistent with the First Amendment, reject a specialty license plate design submitted by a non-profit entity due to the design’s prominent use of the Confederate battle flag, even though Texas had approved a disparate array of some 350 other designs submitted by various individuals and organizations depicting messages ranging from “I’d Rather Be Golfing” to the names of a number of (out-of-state) universities to “MIGHTY FINE” to “GET IT SOLD WITH RE/MAX.”

And, in the wake of the Charleston church shootings that occurred a day before Walker was handed down, there have been calls made and steps taken by (Republican as well as Democrat) elected leaders to remove the Confederate battle symbol from statehouses in places like Alabama and South Carolina.

Interestingly, the latter episode sheds light on how the Court should have handled the former—the Walker dispute. In short, the Court should have treated Walker more as a Confederate battle flag case, and less as a license plate case.

Why Justice Breyer’s Majority Opinion In Walker Is Unconvincing

Many able analysts, including some of my fellow Verdict columnists writing in other venues, have exposed some of the major shortcomings of Justice Breyer’s majority opinion, which holds that specialty license plates in Texas are “government speech,” such that the government is largely free to pick and choose—even on the basis of viewpoint—which messages shall be allowed on specialty plates mounted on Texas-registered vehicles. Justice Breyer’s opinion gives a few reasons why the Court believes specialty plates should be treated as government speech. First is that states have historically used license plates as a means of promoting government messages—such as a state’s motto or some iconic image of the state which its leaders want viewers to think of when the state comes to mind. Fair enough, but Justice Breyer is relying here on a prior era, and one in which Texas (and other states) had but a single, or a few, messages it allowed on any of the plates registered in the State. By opening up its license plate regime and approving over 350 disparate messages, Texas has changed the essential purpose (beyond identification of the car’s owner) of the license plate platform from government speech to private speech. And this is not a phenomenon unique to license plates. There might be a lot of public properties that once were used substantially for government speech, but that have been converted into limited or designated or nonpublic fora (where the government is no longer free to discriminate against particular viewpoints) by the government’s decision to open up the property so widely. And it is no response to a claim of improper viewpoint discrimination in any of these kinds of fora to say that the property was originally used for government speech.

The second argument Justice Breyer makes is that license plates are closely associated or identified with the state in the public’s mind. Justice Breyer adds that “a person who displays a message on a Texas license plate likely intend[s] to convey to the public that the State had endorsed the message. If not, the individual could simply display . . . a bumper sticker.” Again, that might have been true of Texas license plates in an early era, but as Justice Alito’s withering dissent points out, no remotely reasonable viewers would ever actually think, after driving Texas roads for even a short time, that Texas really supports messages like “Go [Michigan State] Spartans,” or “Roll [Alabama] Tide Roll.” Or that the person whose plate bears one of these messages actually chose the plate design over a bumper sticker in order to obtain a state imprimatur (as opposed to preferring a specialty plate over a sticker because of the permanence and cleanliness of a plate, and to avoid any stigma tied to the use of bumper stickers.) I also find it interesting that questions such as these are empirical ones, and yet the Court makes broad findings in this regard without any (easily obtainable) evidence. (This lack of empirical input concerning public perceptions was also a feature of another First Amendment case, Williams-Yulee v. Florida Bar, about which I wrote a column six weeks ago).

A Better Framing of the Issues Implicated by Walker

In spite of its analytic weaknesses, Justice Breyer’s opinion arrives at a result that many observers, on and off the Court, find intuitively correct. Can the Lone Star State really be forced to have the word “TEXAS” that runs accross the top of every license plate in the State appear just a few inches from the Confederate battle flag symbol? Walker, it is worth noting, was a rare case in which Justice Clarence Thomas joined the four “liberal” Justices to create a very unlikely 5-4 majority. Odd lineups like this usually suggest that something interesting is going on, but what might be the key to unlocking Walker?

For me, the critical fact in the case is one to which the Court gave virtually no attention—that the symbol at issue is not just an offensive one (representing, as it does, slavery, rebellion, and a combination of the two, whether or not it stands for other things as well.) It is a symbol that originated as government speech by, among other Confederate states, the State of Texas, and that is thus linked to those state governments, including Texas, who are responsible for its prominence and its (ugly) messages. The flag was adopted and used in battle by Confederate states from late 1861 until the fall of the Confederacy, and then utilized extensively by racist governors and other officials to resist desegregation during the Civil Rights movement. So even if Texas were required to permit racial slurs on specialty plates (a matter about which I’m not sure – perhaps Texas, because of its history concerning race, has a strong interest in separating itself from any racist message that, if attributed to the state, might raise equal protection problems), the present case is different: the Confederate battle flag is worse in this regard than a racial slur; it is akin to a racial slur that was adopted and previously used as a state’s motto.

Because Texas has a distinctive association with use of the Confederate flag, it has a distinctive (and non-censorial) reason to want to avoid improper attribution on its property, including its license plates. I am not saying that government owns the intellectual property rights to control the use of flag symbols—the famous Texas v. Johnson case invalidating a law prohibiting flag-burning rightly rejected that idea. Rather, because the risk of misattribution is greater with respect to the use on government property of symbols that had formerly been used by the government itself than it is with respect to other messages, the government has a correspondingly stronger reason (other than censorship) to regulate.

For example, if New Hampshire changed its motto from the traditional “Live Free or Die” message that has been appearing on its license plates for decades (and that was the subject of the other famous Supreme Court case involving a license plate, Wooley v. Maynard) because the State no longer embraced that principle, and it had a specialty plate scheme in which an applicant wanted that creed to physically appear near the words “NEW HAMPSHIRE,” the State would have a strong interest in rejecting that design to avoid any confusion.

If the approach I offer here had been the basis of the majority’s decision in Walker, various problems that Justice Breyer’s opinion creates going forward would have been avoided. If Texas specialty plates really are “government speech,” then how can the State approve and allow the design (which it has) bearing the words “Knights of Columbus,” a distinctively Catholic fraternal service organization? If people identify that design with lawmakers in Austin, isn’t there an Establishment Clause problem? And if the license plates are government (rather than private) speech, then Texas can reject a design bearing the words “Pro-Choice” even though it has already approved one bearing the words “Choose Life.” Does that kind of asymmetry make sense?

It may well be that the rationale I suggest today could, if adopted, mean that some states (i.e., those particularly associated with the Confederacy or racism) would have more latitude than others to reject the Confederate flag on specialty plate designs, and that the rejection by some states (that lack the historical association) would look like censorship, pure and simple. But even if that is true, we should remember that other equality-based constitutional doctrines are similarly contextual. For example, a jurisdiction that has engaged in racial discrimination may have more latitude to engage in race-based remedial action than one that hasn’t. The “government speech” rationale adopted by the Court may seem to create a cleaner line than the test I offer here, but in the long run it is (I suspect) less honest and will be more problematic in future disputes.