I recently provided some commentary to the media on Donald Trump's tax "proposals." To WJLA-TV, the ABC affiliate in Washington, DC, I said, "It's a weird mix of proposals, but these plans at the end of the day are going to blow a hole in the budget." You can read the story here.

The reporter for that story asked me to summarize The Donald's plan in a word. I demurred. Nonetheless, I managed to summarize it in two words: Donald Dust.

As in The Donald blowing his magic dust of better/bygone/bogus days in yet another direction, this time over the tax code. Donald Dust is so magical that somehow slashing tax rates for the rich (from 39.6% to 25%), for partnerships and S-corps (from 35% to 15%), for capital gains and investment income (from 23.8%, including the Affordable Care Act surtax, to 20%), and for vast estates and inheritances (from 40% to zero) will not add trillions of dollars to the deficit, raise interest payments on our national debt, or slow the economy, but rather double the rate of economic growth from the present rate of 3% to 6%. Uh, and how are all those tax cuts for rich taxpayers and businesses better for the middle class? Oh, right, The Donald will also use some of his Dust to accomplish fundamental tax reform, something that hasn't happened since...er...a long time ago. Like, 1986. Maybe The Donald needs a Donald Wand to go along with his Donald Dust.

Which got me thinking. "Donald Dust" would make a good title for a poem (actually, it started out as a haiku, but...):

Donald Dust, Donald Dust,
Deliver us the American Dream, 
Donald Dust, Donald Dust,
A house, apple pie, ice cream. 
Donald Dust, Donald Dust,  
Tax cuts for me, my neighbor, you, and GE, 
Donald Dust, Donald Dust,
More cuts for estates, rich heirs, and Bobby McGee, 
How do you know what others can't see? 
How do you make 1 + 1 = 3? 
How do your tax cuts double GDP? 
Why do corporations pay less tax than me?
(please excuse the bad grammar)
Donald Dust, Donald Dust, 
Never mind all that, I really don't care, 
Just blow some of that Dust over yonder, 
I want your hair. 

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.

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

"Productive Tensions: Women's NGOs, the 'Mainstream' Human Rights Movement, and International Lawmaking" 
Non-State Actors, Soft Law and Protective Regimes: From the Margins (Cecilia M. Bailliet ed., Cambridge University Press, 2012).
UC Davis Legal Studies Research Paper No. 422

KARIMA BENNOUNE, University of California, Davis - School of Law

Non-govermental organizations (NGOs) are among the most discussed non-state actors involved in the creation, interpretation, and application of international law. Yet, scholars of international law have often over looked the critical issue of diversity among NGOs, and the differing stances they may take on key international law issues and controversies. This oversight exemplifies the ways in which international law scholarship sometimes takes overly unitary approaches to its categories of analysis. Feminist international law questions the accuracy of such approaches. When one unpacks the "NGO" category, one often discovers multiple NGO constituencies reflecting conflicting concerns and perspectives. Hence, feminist international law theories should reflect a view of NGOs as international lawmakers that is equally complexified.

This chapter will focus on one example of such NGO diversity, namely the inter-NGO dynamic sometimes found between women's human rights NGOs and what is often termed the "mainstream" human rights movement. These relationships have long been complicated . At times these constituencies are allies with the same international law priorities. At other times they are opponents or at least involved in what might be described as a tense dialogue. Sometimes the "mainstream" human rights groups become themselves the targets of the lobbying of women's human rights groups. Indeed, women's human rights NGOs and other human rights NGOs may have very different views of particular inter­ national law questions . Over time, however, the women's rights groups have often - though not always - prevailed on human rights groups to evolve their view of international law in a more gender-sensitive direction.

This dialectical relationship between women's groups and other human rights groups has played out in numerous arenas, including in the 1990s debate over the definition of torture, and, most recently in regard to the need to (also) respond to atrocities by fundamentalist non-state actors in the context of critiquing the "war on terror:' In each instance, women's groups and other human rights NGOs have some­ times had uneasy, multifaceted and shifting relationships that have shaped critical international lawmaking processes and debates. Groups within both of those broad categories of NGOs have also taken diamet­rically opposed positions at times. All of these sets of complexities, these putatively productive tensions, have both enriched and rendered more difficult the role of NGOs as lawmakers, and must be reflected in any meaningful theorizing of the issue.

What then should these layered inter-NGO dynamics tell us about our conception of "NGO" as a category of analysis, and about the role of NGOs in the creation and practice of international law? What can analyzing these dynamics tell us about how progress can most success­ fully be made toward a feminist reshaping of international law? This chapter will consider each of these questions in light of several case studies.

I come at this subject from a range of vantage points, having been an Amnesty International legal adviser, having also worked closely with a range of women's NGOs, and currently as an academic. Hence, I will try to look at these questions at the intersection of both academic and these various practitioner perspectives. To that end, this chapter begins with a brief overview of NGOs and their roles on the inter­national law stage, as described in the literature. An examination of the categories used here follows, interrogating the meaning of the terms, "women's human rights NGO" and "mainstream human rights NGO." Subsequently, the chapter reviews the case studies drawn from practice, first with regard to NGO interaction concerning the definition of torture, and then bearing on responses to the "war on terror." It then concludes with a brief application of the lessons learned from these case studies about the meaning of NGO participation in international lawmaking.

"Administering Section 2 of the VRA After Shelby County" 
Columbia Law Review, vol. 115 Forthcoming
UC Davis Legal Studies Research Paper No. 372

CHRISTOPHER S. ELMENDORF, University of California, Davis - School of Law
Email: cselmendorf@ucdavis.edu
DOUGLAS M. SPENCER, University of Connecticut, School of Law
Email: dspencer@berkeley.edu

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

"Bait, Mask, and Ruse: Technology and Police Deception" 
128 Harvard Law Review Forum 246 (2015)
UC Davis Legal Studies Research Paper No. 423

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

Deception and enticement have long been tools of the police, but new technologies have enabled investigative deceit to become more powerful and pervasive. Most of the attention given to today's advances in police technology tends to focus either on online government surveillance or on the use of algorithms for predictive policing or threat assessment. No less important but less well known, however, are the enhanced capacities of the police to bait, lure, and dissemble in order to investigate crime. What are these new deceptive capabilities, and what is their importance?

"Richard Delgado's Quest for Justice for All" 
Law and Inequality: A Journal of Theory and Practice, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 421

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

This is a contribution to a symposium celebrating Richard Delgado's illustrious career in law teaching. This commentary offers some thoughts on Delgado's contributions to pushing the boundaries of Critical Race Theory - and legal scholarship generally - in seeking to create a more just society. This ambitious program has been the overarching theme to his scholarly agenda throughout his career.

"Leaving No (Nonmarital) Child Behind" 
48 Family Law Quarterly 495 (2014)
UC Davis Legal Studies Research Paper No. 414

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu

Almost ten years, in 2005, I wrote a piece for the Family Law Quarterly describing the legal status of children born to same-sex couples. This Essay explores the some of the positive and some of the worrisome developments in the law since that time. On the positive side, today many more states extend some level of protection to the relationships between nonbiological same-sex parents and their children. Moreover, in many of these states, lesbian nonbiological parents are now treated as full, equal legal parents, even in the absence of an adoption.

There are other recent developments, however, that should be cause for concern. Specifically, this Essay considers recent legislative proposals that contract (rather than expand) existing protections for functional, nonmarital parents. I conclude by arguing that while advocates should celebrate the growing availability of marriage for same-sex couples, they must also be careful not to push legislative efforts that inadequately protect the large and growing numbers of families that exist outside of marriage.

"Amici Curiae Brief of Family Law Professors in Obergefell v. Hodges" 
UC Davis Legal Studies Research Paper No. 420

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu
JOAN HEIFETZ HOLLINGER, University of California, Berkeley - School of Law
Email: joanhol@law.berkeley.edu

This Amici Curiae brief was filed in the Supreme Court on behalf of 74 scholars of family law in the four consolidated same-sex marriage cases.

The two questions presented in the cases concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Those defending the marriage bans rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the "optimal" setting for raising children is a home with their married, biological mothers and fathers. The brief demonstrates that these asserted rationales conflict with basic family laws and policies in every state, which tell a very different story.

"Fracking and Federalism: A Comparative Approach to Reconciling National and Subnational Interests in the United States and Spain" 
Environmental Law, Vol. 44, No. 4, 2014
UC Davis Legal Studies Research Paper No. 424

ALBERT LIN, University of California, Davis - School of Law
Email: aclin@ucdavis.edu

Hydraulic fracturing presents challenges for oversight because its various effects occur at different scales and implicate distinct policy concerns. The uneven distribution of fracturing's benefits and burdens, moreover, means that national and subnational views regarding fracturing's desirability are likely to diverge. This Article examines the tensions between national and subnational oversight of hydraulic fracturing in the United States, where the technique has been most commonly deployed, and Spain, which is contemplating its use for the first time. Drawing insights from the federalism literature, this Article offers recommendations for accommodating the varied interests at stake in hydraulic fracturing policy within the contrasting governmental systems of these two countries.

"Access to Justice in Rural Arkansas" 
UC Davis Legal Studies Research Paper No. 426

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
J. CLIFF MCKINNEY, Independent
Email: cmckinney@QGTlaw.com
JULIANA FEHRENBACHER, Independent
Email: jfehr@ucdavis.edu
AMY DUNN JOHNSON, Independent
Email: adjohnson@arkansasjustice.org

This policy brief, written for and distributed by the Arkansas Access to Justice Commission, reports two sets of data related to the shortage of lawyers in rural Arkansas. The first set of data regards the number of lawyers practicing in each of the state's 25 lowest-population counties and the ratio of lawyers per 1,000 residents in each of those counties. This data is juxtaposed next to the poverty rate and population of each of county.

The policy brief also reports the results of a survey of Arkansas lawyers and law students, the latter from both the University of Arkansas Fayetteville Law School and the University of Arkansas at Little Rock/Bowen School of Law. These surveys probed respondents' attitudes toward rural practice, among other matters. The policy brief reports a summary of those responses. Finally, the policy brief reports on a 2015 legislative proposal aimed at alleviating the shortage of lawyers serving rural Arkansans.

This policy brief is a forerunner to a fuller, academic analysis of these and other data sets relevant to the geography of access to justice in Arkansas. That analysis will appear in an article that will be published by the University of Arkansas at Little Rock Law Journal (forthcoming 2015). The authors anticipate that these investigations in Arkansas may provide a model for other states concerned about the shortage of lawyers working in rural areas.

"Using Taxes to Improve Cap and Trade, Part I: Distribution" 
75 State Tax Notes 99 (2015)
UC Davis Legal Studies Research Paper No. 425

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

In this article, the first of a series, we analyze the distributional issues involved in implementing U.S. state level cap-and-trade regimes. Specifically, we will argue that the structure of California's AB 32 regime will unnecessarily disadvantage lower-income Californians under the announced plan to give away approximately half of the permits to businesses and pollution-emitting entities.

By Professor Darien Shanske. Cross-posted from SCOTUSblog.

Neither side came away with a clear victory in the Court's decision in Alabama Department of Revenue v. CSX Transportation, Inc., as the Court remanded the case to the Eleventh Circuit. Again. The clear loser in the case is the Eleventh Circuit, which has been given the specific task that the court of appeals had already eschewed as "Sisyphean." Justice Scalia wrote the majority decision. Justice Thomas wrote the dissent, with Justice Ginsburg signing on. This is the second time that Justices Thomas and Ginsburg dissented on the same issue in the same case.

The issue in the case was interpretation of Section 11501(b)(4) of the [4-R] Act, which prohibits a state from "impos[ing] another tax that discriminates against a rail carrier." Alabama imposes a general sales tax, which includes tax on the sale of diesel fuel to railroads, but motor and water carriers (i.e., trucks and boats) are exempt from paying this tax on their fuel.   The Court held that the appropriate comparison class for assessing discrimination under the Act can vary depending on the alleged discrimination. In this case, the Court found that CSX properly alleged that motor and water carriers, as competitors to railroads, were a proper comparison class.

The Court also held that "discrimination" in the statute requires some analysis of a state's overall tax system. It is not enough, as CSX argued, to look to the burden imposed by one tax in isolation when there could be another tax that demonstrates that there is, in fact, not an unlawful discrimination.   It is true that only the railroads pay the sales tax on their fuel, but Alabama countered that this did not amount to discrimination because motor carriers, but not railroads, had to pay an excise tax on diesel fuel. The Eleventh Circuit refused to consider this argument, but it will have to consider it on remand as the Supreme Court has now held that the statute requires an assessment whether there is a "roughly equivalent" tax that offsets an apparently discriminatory tax.

As for the issue of comparison class, oral argument already strongly indicated that a majority of the Justices were not going to accept the limitation on what can constitute the class that was proposed by the state and that had been proposed by Justices Thomas and Ginsburg in dissent the last time this case was before the Court. The anti-discrimination provision at issue is in subsection (b)(4), which does not explicitly state what the proper comparison class would be. However, subsections (b)(1)-(3) of the same provision do explicitly indicate such a class, namely "commercial and industrial" property. The majority found that this limitation does not carry over from the first three subsections to the last, primarily because the earlier subsections were specifically about the property tax and the final residual provision is not so limited.

Once the Court found that this limitation did not restrict subsection (b)(4), the question becomes just what does constitute a comparison class. Here the Court provided only broad guidance. On the one hand, the analysis as to what constitutes a comparison class cannot be the same as would be performed in connection with the Equal Protection Clause. This is because, as to economic matters, the Equal Protection Clause permits very fine distinctions. As the Court explained, importing this analysis into the analysis of the 4-R Act "would deprive subsection (b)(4) of all real-world effect, providing protection that the Equal Protection Clause already provides."  The right analysis as to proper comparison class must take into account the purpose of the 4-R Act, and here the opinion cites the statute: to "restore the financial stability of the railway system of the United States, [while] foster[ing] competition among all carriers by railroad and other modes of transportation." Given this purpose, the Court agrees that competitors, such as motor carriers, can be an appropriate comparison class. As for other possible comparison classes, the Court put that question to the side, exclaiming that "[s]ufficient unto the day is the evil thereof."

As to how to do the discrimination analysis, the Court explained that "it does not accord with ordinary English usage to say that a tax discriminates against a rail carrier if a rival who is exempt from that tax must pay another comparable tax from which the rail carrier is exempt." In other words, how can there be an unlawful discrimination if in reality the railroads were no worse off than their competitors? The Court therefore "could not approve" the Eleventh Circuit's refusal to consider Alabama's argument that its fuel excise tax is the "rough equivalent" of its sales tax on diesel fuels. Though the Court was "inclined to agree" that this is not the kind of analysis that courts are likely to do well, it is nevertheless the duty of courts to try because that is the task Congress assigned them "by drafting an antidiscrimination command in such sweeping terms."

Both as to the question of comparison class and as to the question of the scope of analysis, the Court's opinion adopted an interpretation of the statute that requires courts to apply broad standards. Justice Thomas in dissent does more than just argue for his reading of the statute; he also needles the majority about reaching a "predictably unworkable" result.

A concluding observation. The dormant Commerce Clause also forbids discrimination in taxation, and thus the Court has already analyzed what constitutes discrimination in taxation at some length. And, in the dormant Commerce Clause cases, as noted very briefly in the opinion in this case, the Court has long accepted the possibility that states can defend themselves from a charge of discriminatory taxation by showing that there is some other compensating tax. By referring back to an early (1932) dormant Commerce Clause case, the majority opinion appears to accept that this piece of conceptual analysis is sound. Yet a lot has happened since 1932. In particular, the Court developed the so-called complementary tax doctrine, complete with its own three-part test, which has been applied fairly recently . The doctrine was also discussed in the briefs, including that of the United States, which appeared as an amicus in support of neither party. This is especially significant because the Court largely followed the disposition of this case proposed by the United States in its brief and at oral argument.

What does it mean that the complementary tax doctrine made no appearance in the majority opinion? Rather than reference the doctrine, the majority used a form of the phrase "rough equivalent" twice, along with "roughly comparable," to describe what the Eleventh Circuit must assess. Is this standard stricter or looser than the complementary tax doctrine? Is this doctrine not mentioned because the Court finds it unsatisfactory or only applicable to dormant Commerce Clause cases? The opinion does not answer these questions, but perhaps we will find out what the Court thinks if - when? - this case returns to the Court for a third time.

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:

"Corporate Social Responsibility in India" 
The Conference Board Director Notes No. DN-V6N14 (August 2014)
UC Davis Legal Studies Research Paper No. 399

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu
SHRUTI RANA, University of Maryland
Email: shrutirana@yahoo.com

In an era of financial crises, widening income disparities, and environmental and other calamities linked to some corporations, calls around the world for greater corporate social responsibility (CSR) are increasing rapidly. Unlike the United States and other major players in the global arena, which have largely emphasized voluntary approaches to the adoption and spread of CSR, India has chosen to pursue a mandatory CSR approach. This report discusses India's emerging CSR regime and its potential strengths and weaknesses.

"The Advent of the LLP in India" 
Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations (Robert W. Hillman and Mark J. Loewenstein eds.) (Edward Elgar Publishing, 2015, Forthcoming)
UC Davis Legal Studies Research Paper No. 408

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

In 2008, India passed a ground-breaking law to introduce the Limited Liability Partnership form into Indian business law. The Indian LLP Act was the first major introduction of a new business form in India in over 50 years. While the partnership and corporate forms (i.e. companies under the Indian Companies Act) have long flourished in India, both forms have presented challenges for certain Indian businesses. The Indian government's impetus for the LLP Act was to develop a business association form that could better meet the needs of entrepreneurs and professionals with respect to liability exposure, regulatory compliance costs and growth. This chapter begins with a broad overview of the political and legislative process which led to the adoption of the LLP Act. It then addresses the critical aspects of the Indian LLP Act, and analyzes some of the challenges and uncertainties that may derail the success of the LLP form.

"Reed v. Town of Gilbert: Signs of (Dis)Content?" 
NYU Journal of Law & Liberty, Forthcoming
UC Davis Legal Studies Research Paper No. 403

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

This essay provides a preview of the Reed v. Town of Gilbert, Arizona, a case currently (OT 2014) pending in the Supreme Court. The case concerns the regulation of signs by a town government, and requires the Supreme Court to resolve a three-way circuit split on the question of how to determine whether a law is content-based or content-neutral for First Amendment purposes. The basic question raised is whether courts should focus on the face of a statute, or on the legislative motivation behind a statute, in making that determination. I demonstrate that under extant Supreme Court doctrine, the focus should clearly be on the face of the statute, and that under this approach the Town of Gilbert's sign regulation is (contrary to the Ninth Circuit) clearly content-based.

That the Ninth Circuit erred here is, however, not the end of the matter. More interesting is why it erred. I argue that the Ninth Circuit's resistance to finding Gilbert's ordinance content-based was based on subterranean discontent with the most basic principle of modern free speech doctrine - that all content-based regulations are almost always invalid. At heart, what the Gilbert ordinance does is favor signs with political or ideological messages over other signs. Current doctrine says that this is problematic. I question whether that makes any sense. Given the broad consensus that the primary purpose of the First Amendment is to advance democratic self-government, why shouldn't legislators, and courts, favor speech that directly advances those purposes over other speech, especially when allocating a scarce resource such as a public right of way? Given the brevity of this essay, I only raise but do not seek to answer this question, but argue that it is worthy of further attention by the Court (and of course by scholars).

"Brand New World: Distinguishing Oneself in the Global Flow" 
UC Davis Law Review, Vol. 27, No. 2, December 2013
UC Davis Legal Studies Research Paper No. 410

MARIO BIAGIOLI, University of California, Davis - School of Law
Email: mbiagioli@ucdavis.edu
ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu
MADHAVI SUNDER, University of California, Davis - School of Law
Email: msunder@ucdavis.edu

Ancient physicians engaged in property disputes over the seals they impressed on the containers of their medications, making brand marks the oldest branch of intellectual property. The antiquity of brand marks, however, has not helped their proper understanding by the law. While the conceptual and historical foundations of copyrights and patents continue to be part and parcel of contemporary legal debates, the full history and theorizing on business marks is largely external to trademark doctrine. Furthermore, with only a few and by now outdated exceptions, whatever scholarship exists on these topics has been performed mostly not by legal scholars but by archaeologists, art historians, anthropologists, sociologists, and historians of material culture. Such a striking imbalance suggests that the law is more eager to assume and state what trademarks should be rather than understand how they actually work today. Nor does the law often acknowledge the many different ways in which marks have always been deployed to distinguish both goods and their makers. This is not just a scholarly problem: given the extraordinary importance of brands in the global economy, the growing disjuncture between the way brands function in different contexts and cultures and trademark law's simplified conceptualization of that function has become a problem with increasingly substantial policy implications.

"Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule" 
Boston University Law Review, Vol. 94, No. 5, 2014
UC Davis Legal Studies Research Paper No. 411

GABRIEL J. CHIN, University of California, Davis - School of Law
Email: gjackchin@gmail.com

In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to "preclear" changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive voting rights legislation in the Constitution's Guarantee Clause, in addition to the Fourteenth and Fifteenth Amendments. The Court has made clear that the Guarantee Clause is a power granted exclusively to Congress and that questions of its exercise are nonjusticiable. It is also clear from the Federalist Papers and from scholarly writing - as well as from what little the Court has said - that the purpose of the Guarantee Clause is to protect majority rule. That is precisely what was at issue after the Civil War when Congress first used the Guarantee Clause to protect African American votes. As an absolute majority in three states and over forty percent of the population in four others, African Americans possessed political control when allowed to vote; when disenfranchised, they were subjected to minority rule. African Americans are no longer the majority in any state. But in a closely divided political environment, whether African Americans and other minorities can vote freely may be decisive in many elections. For this reason, Congress could legitimately ground a revised Voting Rights Act in the Guarantee Clause, and the Court should treat its validity as a nonjusticiable political question committed by the Constitution to Congress.

"Wills Law on the Ground" 
UCLA Law Review, Vol. 62, 2015 Forthcoming
UC Davis Legal Studies Research Paper No. 404

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

Traditional wills doctrine was notorious for its formalism. Courts insisted that testators strictly comply with the Wills Act and refused to consider extrinsic evidence to construe instruments. However, the 1990 Uniform Probate Code revisions and the Restatement (Third) of Property: Wills and Donative Transfers replaced these venerable bright-line rules with fact-sensitive standards in an effort to foster individualized justice. Although some judges, scholars, and lawmakers welcomed this seismic shift, others objected that inflexible principles provide clarity and deter litigation. But with little hard evidence about the operation of probate court, the frequency of disputes, and decedents' preferences, these factions have battled to a stalemate. This Article casts fresh light on this debate by reporting the results of a study of every probate matter stemming from deaths during the course of a year in a major California county. This original dataset of 571 estates reveals how wills law plays out on the ground. The Article uses these insights to analyze the issues that divide the formalists and the functionalists, such as the requirement that wills be witnessed, holographic wills, the harmless error rule, ademption by extinction, and anti-lapse.

"Can Human Embryonic Stem Cell Research Escape its Troubled History?" 
44 Hastings Center Report 7 (Nov.-Dec. 2014)
UC Davis Legal Studies Research Paper No. 409

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

In 2013 and 2014, three U.S.-based research teams each reported success at creating cell lines after somatic cell nuclear transfer with human eggs. This essay assesses the disclosures about how oocytes were obtained from women for each of the three projects. The three reports described the methods used to obtain eggs with varying degrees of specificity. One description, in particular, provided too little information to assess whether or not the research complied with law or other ethical norms. This essay then considers methodological transparency as an ethical principle. Situating the research within the ethical and moral controversies that surround it and the high-profile fraudulent claims that preceded it, the essay concludes that transparency about methodology, including the means of obtaining human cells and tissues, should be understood as an ethical minimum.

"Evidence of a Third Party's Guilt of the Crime that the Accused is Charged with: The Constitutionalization of the SODDI (Some Other Dude Did It) Defense 2.0" 
UC Davis Legal Studies Research Paper No. 401

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

Defense counsel have employed a version of the SODDI defense for decades. The late Johnny Cochran successfully employed the defense in the O.J. Simpson prosecution, and the legendary fictional defense attorney Perry Mason used the defense in all his cases.

However, in most jurisdictions there are significant limitations on the availability of the defense. In an 1891 decision, the United States Supreme Court announced that evidence of a third party's misconduct is admissible only if it has a "legitimate tendency" to establish the accused's innocence. Today most jurisdictions follow a version of the "direct link" test. Under this test, standing alone evidence of a third party's motive or opportunity to commit the charged offense is inadmissible unless it is accompanied by substantial evidence tying the third party to the commission of the charged crime. Moreover, the evidence that the accused proffers to support the defense must satisfy both the hearsay and character evidence rules. If the defense offers out-of-court statements describing the third party's conduct, the statements must fall within an exemption from or exception to the hearsay rule. If the defense attempts to introduce evidence of the third party's perpetration of offenses similar to the charged crime, the defense must demonstrate that the evidence is admissible on a noncharacter theory under Federal Rule of Evidence 404(b)(2).

However, a new version of the SODDI defense has emerged - SODDI 2.0. When the defense relies on this theory, the accused makes a more limited contention. The defense does not contend that reasonable doubt exists because there is admissible evidence of the third party's guilt. Rather, the defense argues that there is reasonable doubt because the police neglected to investigate the potential guilt of a third party who was a plausible person of interest in the case. Two 2014 decisions, one from the Court of Appeals for the Second Circuit and another from an intermediate Utah court, approved this version of the defense. Even more importantly, both courts ruled that the trial judge violated the accused's constitutional right to present a defense by curtailing the accused's efforts to develop the defense at trial.

The advent of this new version of the defense is both significant and controversial. The development is significant because the defense can often invoke this version of the defense when the restrictions on the traditional SODDI defense preclude the accused from relying on the traditional defense. As the two 2014 decisions point out, when the defense invokes the 2.0 version of the defense, the hearsay rule does not bar testimony about reports to the police about the third party's misconduct. Under the 2.0 version of the defense, those reports are admissible as nonhearsay to show the reports' effect on the state of mind of the police officers: putting them on notice of facts that should have motivated them to investigate the third party. Similarly, when the defense relies on the 2.0 version of the defense, the prosecution cannot invoke the character evidence prohibition to bar testimony that the third party has committed offenses similar to the charged crime. The prohibition applies only when the ultimate inference of the proponent's chain of reasoning is that the person engaged in conduct consistent with his or her character trait. In this setting, the prohibition is inapplicable because the ultimate inference is the state of mind of the investigating officers.

Since the restrictions on the new version of the SODDI defense are much laxer than those on the traditional defense, the advent of this defense is also controversial. Are the inferences from the 2.0 version of the defense so speculative that as a matter of law, the defense is incapable of generating reasonable doubt? Moreover, is it wrong-minded to recognize a version of the defense with such minimal requirements when the prevailing view is that traditional version is subject to much more rigorous requirements?

This article addresses those questions and concludes that it is legitimate to recognize the SODDI defense 2.0. In the past few decades, there has been a growing realization of the incidence of wrongful convictions. In the late Johnny Cochran's words, some of those convictions were a product of a "rush to judgment" by the police. The recognition of the SODDI defense 2.0 will provide a significant disincentive to such premature judgments by police investigators.

"Should Arrestee DNA Databases Extend to Misdemeanors?" 
Recent Advances in DNA & Gene Sequences, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 406

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

The collection of DNA samples from felony arrestees will likely be adopted by many more states after the Supreme Court's 2013 decision in Maryland v. King. At the time of the decision, 28 states and the federal government already had arrestee DNA collection statutes in places. Nevada became the 29th state to collect DNA from arrestees in May 2013, and several others have bills under consideration. The federal government also encourages those states without arrestee DNA collection laws to enact them with the aid of federal grants. Should states collect DNA from misdemeanor arrestees as well? This article considers the as yet largely unrealized but nevertheless important potential expansion of arrestee DNA databases.

"Racial Profiling in the 'War on Drugs' Meets the Immigration Removal Process: The Case of Moncrieffe v. Holder" 
University of Michigan Journal of Law Reform, Forthcoming
UC Davis Legal Studies Research Paper No. 402

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

This paper is an invited contribution to an immigration symposium in the Michigan Journal of Law Reform.

In 2013, the Supreme Court in Moncrieffe v. Holder rejected a Board of Immigration Appeals order of removal from the United States of a long-term lawful permanent resident based on a single criminal conviction involving possession of a small amount of marijuana. In so doing, the Court answered a rather technical question concerning the definition of an "aggravated felony" under the U.S. immigration laws.

Because the arrest and drug conviction were not challenged in the federal removal proceedings, the Court in Moncrieffe v. Holder did not have before it the full set of facts surrounding the state criminal prosecution of Adrian Moncrieffe. However, examination of the facts surrounding the criminal case offers important lessons about how the criminal justice system works in combination with the modern immigration removal machinery to disparately impact communities of color. By all appearances, the traffic stop that led to Moncrieffe's arrest is a textbook example of racial profiling.

This Article considers the implications of the facts and circumstances surrounding the stop, arrest, and drug crimination of Adrian Moncrieffe for the racially disparate enforcement of the modern U.S. immigration laws. As we shall see, Latina/os, as well as other racial minorities, find themselves in the crosshairs of both the modern criminal justice and immigration removal systems.

Part II of the Article provides details from the police report of the stop and arrest that led to Adrian Moncrieffe's criminal conviction. The initial stop for a minor traffic infraction is highly suggestive of a pretextual traffic stop of two Black men on account of their race. Wholly ignoring the racial tinges to the criminal conviction, the U.S. Supreme Court only considered the conviction's immigration removal consequences - and specifically the Board of Immigration Appeals' interpretation of the federal immigration statute, not the lawfulness of the original traffic stop and subsequent search.

The police report describes what appears to be a routine traffic stop by a police officer who, while apparently trolling the interstate for drug arrests in the guise of "monitoring traffic." The officer stopped a vehicle with two Black men - "two B/M's," as the officer wrote - based on the tinting of the automobile windows. Even if the stop and subsequent search did not run afoul of the Fourth Amendment, Moncrieffe appears to have been the victim of racial profiling. A police officer, aided by a drug sniffing dog, in drug interdiction efforts relied on a minor vehicle infraction as the pretext to stop two Black men traveling on the interstate in a sports utility vehicle with tinted windows.

The Moncrieffe case exemplifies how a racially disparate criminal justice system exacerbates racially disparate removals in a time of record-setting deportations of noncitizens. Although he was fortunate enough to stave off deportation and separation from an entire life built in the United States, many lawful permanent residents are not nearly so lucky.

"Social Innovation" 
Washington University Law Review, Vol. 92, No. 1, 2014
UC Davis Legal Studies Research Paper No. 407

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

This Article provides the first legal examination of the immensely valuable but underappreciated phenomenon of social innovation. Innovations such as cognitive behavioral therapy, microfinance, and strategies to reduce hospital-based infections greatly enhance social welfare yet operate completely outside of the patent system, the primary legal mechanism for promoting innovation. This Article draws on empirical studies to elucidate this significant kind of innovation and explore its divergence from the classic model of technological innovation championed by the patent system. In so doing, it illustrates how patent law exhibits a rather crabbed, particularistic conception of innovation. Among other characteristics, innovation in the patent context is individualistic, arises from a discrete origin and history, and prioritizes novelty. Much social innovation, however, arises from communities rather than individual inventors, evolves from multiple histories, and entails expanding that which already exists from one context to another. These attributes, moreover, apply in large part to technological innovation as well, thus revealing how patent law relies upon and reinforces a rather distorted view of the innovative processes it seeks to promote. Moving from the descriptive to the prescriptive, this Article cautions against extending exclusive rights to social innovations and suggests several nonpatent mechanisms for accelerating this valuable activity. Finally, it examines the theoretical implications of social innovation for patent law, thus helping to contribute to a more holistic framework for innovation law and policy.

"Brief of Interested Law Professors as Amici Curiae Supporting Respondent in Direct Marketing Association v. Brohl" 
Stanford Public Law Working Paper No. 2516159
San Diego Legal Studies Paper No. 14-71
UC Davis Legal Studies Research Paper No. 400
UC Berkeley Public Law Research Paper No. 2516159
UCLA School of Law Research Paper No. 14-19

DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu
ALAN B. MORRISON, George Washington University - Law School
Email: abmorrison@law.gwu.edu
JOSEPH BANKMAN, Stanford Law School
Email: JBANKMAN@LELAND.STANFORD.EDU
JORDAN M. BARRY, University of San Diego School of Law
Email: jbarry@sandiego.edu
BARBARA H. FRIED, Stanford Law School
Email: bfried@stanford.edu
DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
ANDREW J. HAILE, Elon University School of Law
Email: ahaile@brookspierce.com
KIRK J. STARK, University of California, Los Angeles (UCLA) - School of Law
Email: STARK@LAW.UCLA.EDU
JOHN A. SWAIN, University of Arizona - James E. Rogers College of Law
Email: john.swain@law.arizona.edu
DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

The petitioner in this case has framed the question presented as follows: "Whether the Tax Injunction Act bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration."

Amici agree with the respondent, the State of Colorado, that the Tax Injunction Act bars federal courts from enjoining the operation of the Colorado Statute at issue in this case because this lawsuit is intended to create the very kind of premature federal court interference with the operation of the Colorado use tax collection system that the TIA was designed to prevent. To assist the Court in understanding the application of the TIA to this case, amici (i) place the reporting requirements mandated by the Colorado Statute in the broader context of tax administration and (ii) explain the potential interaction between a decision on the TIA issue in this case and the underlying dispute concerning the dormant Commerce Clause.

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

Amici law professors contend that the centrality of third-party reporting to tax administration in general, and its aptness for this problem in particular, indicate that enjoining the operation of the Colorado Statute constitutes "restrain[ing] the assessment, levy or collection" of Colorado's use tax.

Amici also observe, however, that even a narrow ruling on the scope of the TIA in the Supreme Court could have an unexpected - and we would argue undesirable - impact on the federalism concerns that we think should decide this case. This is because any interpretation of the Colorado Statute for purposes of the TIA made by the Court might be erroneously construed as carrying over to interpreting the Statute for purposes of the dormant Commerce Clause.

We think it likely and reasonable for the courts below to look to the Supreme Court's decision on the TIA for guidance as to what test to apply under the dormant Commerce Clause. However, amici fear that a decision that held that Colorado's reporting requirement is integral to Colorado's "tax collection" for purposes of the TIA will exert a gravitational pull on the lower courts, encouraging them to apply the physical presence test from Quill Corp. v. North Dakota, 504 U.S. 298 (1992) to the Colorado Statute. The Quill test is an especially strict test under the dormant Commerce Clause, and one arguably meant only for "taxes." Thus, a victory for sensible state tax administration and federalism in this Court could be transmuted into a defeat for those principles below. Amici believe that NFIB v. Sebelius, 132 S. Ct. 2566 (2012), teaches that an answer on the TIA does not compel an answer concerning the dormant Commerce Clause. We call this issue to the Court's attention so that the Court is aware of how a decision on the TIA issue might be used - or misused - when the case reaches the merits, either in the state or federal court system.

"Non-Citizen Nationals: Neither Aliens Nor Citizens" 
UC Davis Legal Studies Research Paper No. 405

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

The modern conception of the law of birthright citizenship operates along the citizen/noncitizen binary. Those born in the United States generally acquire automatic U.S. citizenship at birth. Those who do not are regarded as non-citizens. Unbeknownst to many, there is another form of birthright membership category: the non-citizen national. Judicially constructed in the 1900s and codified by Congress in 1940, non-citizen national was the status given to people who were born in U.S. territories acquired at the end of the Spanish-American War in 1898. Today, it is the status of people who are born in American Samoa, a current U.S. territory.

This Article explores the legal construction of non-citizen national status and its implications for our understanding of citizenship. On a narrow level, the Article recovers a forgotten part of U.S. racial history, revealing an interstitial form of birthright citizenship that emerged out of imperialism and racial restrictions to citizenship. On a broader scale, this Article calls into question the plenary authority of Congress over the territories and power to determine their people's membership status. Specifically, this Article contends that such plenary power over the citizenship status of those born in a U.S. possession conflicts with the common law principle of jus soli and the Fourteenth Amendment's Citizenship Clause. Accordingly, this Article offers a limiting principle to congressional power over birthright citizenship.

By Professor Darien Shanske, UC Davis School of Law. Cross-posted from SCOTUSblog.

On Alabama Department of Revenue v. CSX Transportation, Inc. 

This case is about Section 11501(b)(4) of the Railroad Revitalization and Regulatory Reform Act of 1976 (the "4-R Act"), which prohibits a state from "impos[ing] another tax that discriminates against a rail carrier." Wait, where are you going? This case, which has already been before the Supreme Court once, not only involves interesting questions of statutory interpretation, but also implicates fundamental questions about the meaning of "discrimination" in the tax context (and beyond). Indeed, the resolution of the case may require the Court to appeal to deep structural principles beyond tax. Both sides have reasonable arguments based on the text of the statute, legislative history, and policy. Thus the resolution of the case may turn on whether or not federalism concerns indicate that there should be a thumb on the scale in favor of a narrower construction of a statute that preempts state authority.

Put roughly, here are the facts. Alabama charges sales tax on the fuel purchases of railroads; it does not charge the sales tax on the fuel purchases of motor carriers - such as trucks. Because a federal statute bars discrimination against railroads, the railroad CSX Transportation, the respondent in this case, argues that the Alabama sales tax violates the 4-R Act. Not so fast, says Alabama, the petitioner in this case: Motor carriers pay a separate excise tax on their purchases of fuel, a tax that rail carriers do not pay. Surely, counters Alabama, when Congress prohibited "discrimination" it expected courts to be able to look at more than one section of a state tax code.

The provision in the 4-R Act at issue in this case is short and broad, barring "another tax that discriminates." CSX argues that this breadth is what Congress intended, while Alabama argues that Congress intended that the provision's meaning be filled out - and limited - by reference to earlier provisions of the Act and more general state and local tax jurisprudence.

The two questions before the Court are as follows:

1) When the statute forbids "discrimination," to which comparison class should the lower courts look? Should the Court read in a comparison class from the immediately preceding subsections of the 4-R Act, or did Congress specifically not wish to include that limitation?

2) If a court finds facial discrimination, can a state defend it by pointing to the operation of its larger tax system? The statute does not specify that such a justification could be availing. On the other hand, it would seem like there could not be a discrimination if the difference in treatment were justified.

Let's return to the facts. Alabama imposes a general sales and use tax which is based on the value of the item purchased. When railroads purchase diesel fuel, they must pay the tax. However, two competing businesses are exempt from paying the same sales tax on their purchase of diesel fuel: - motor carriers and interstate water carriers (that is, ships). The motor carriers pay a different tax, a per-gallon excise tax on their purchase of diesel fuels. The water carriers do not pay the excise tax; they have been exempt from the sales tax since 1959 because the state believed that the dormant Commerce Clause prevented it from imposing the tax.

The procedural history of this case indicates its difficulty. During its first trip up to the Supreme Court, the district court dismissed CSX's complaint; the Eleventh Circuit affirmed on the ground that subsection 11501(b)(4) of the Act cannot be used to challenge a sales tax "exemption" (as compared with a property tax exemption, which the Court had already held cannot be challenged under the Act).

The Supreme Court rejected that argument, held that a sales tax exemption could result in a prohibited discrimination, and remanded the case to the lower courts. Justices Clarence Thomas and Ruth Bader Ginsburg dissented from that disposition, on the ground that Alabama's scheme clearly did not violate the Act. These two Justices argued that there must be a comparison class implicit to subsection 11501(b)(4). They found that the relevant class was the comparison class established for property tax discrimination purposes in the immediately preceding subsections of the Act - namely, "commercial and industrial taxpayers."

On remand, CSX lost before the district court and won before a divided panel of the Eleventh Circuit.  Both the district court and the Eleventh Circuit found that the appropriate class to which to compare CSX was other competitors, rather than the broader class of commercial and business entities. That competitors constitute the appropriate comparison class is the position currently advanced by CSX before the Court. The district court, however, went on to find that the Alabama sales tax exemption for motor fuel did not amount to discrimination because of the complementary fuel excise tax. It found that, in fact, the charge paid by motor carriers was generally higher than that faced by railroads. As for water carriers, the district court found no discrimination because, among other reasons, the railroads had not shown that the water carriers were truly competitors.

The Eleventh Circuit reversed. Specifically, it held that Alabama could not justify its facial discrimination through the sales tax by appealing to the motor fuel excise tax. The court of appeals held that the statute does not indicate that courts should assess the treatment of railroads by looking at the tax system as a whole, and with good reason, because such an inquiry would amount to a "Sisyphean burden." The dissent countered that the there is no giant rock for courts to deal with, as a court need only compare the tax treatment of one industry to that of its competitors as to one tax.

Before the Court in this case, CSX and its amici defend and elaborate upon the opinion of the Eleventh Circuit.   Congress could have defined discrimination in subsection (b)(4) as relative to a specific class, as it did in the earlier provisions of the same statute, but it did not. Therefore, this kind of discrimination vis-à-vis competitors should be held to violate the statute. Furthermore, because one of the rationales of the 4-R Act was to protect the fiscal integrity of railroads, interpreting this provision in a way that protects the railroads from a tax provision that benefits their primary competition is consistent with the purpose of the Act.

The state counters that the correct comparison class is to commercial and industrial entities, as Justice Thomas had argued. This interpretation is also consonant with the purpose of the statute, as it protects railroads, as interstate entities, from being treated less well than the average in-state business entity. (Note that if a majority of the Court agrees with Alabama (and Justices Thomas and Ginsburg) on this question of comparison class, then the Court need not reach the second question as to the scope of the discrimination analysis.)

As to the scope of the discrimination analysis, Alabama argues that it does not make sense for courts to find a tax discriminatory without looking at the broader tax system - if there is an offsetting charge, then where is the discrimination? Furthermore, in the context of the dormant Commerce Clause, the Court has long accepted the possibility that the existence of a complementary tax could justify a seeming instance of discrimination. Not only does the complementary tax doctrine demonstrate the correct analysis of the concept of discrimination, but this doctrine was well established when the 4-R Act was passed and therefore Congress should be presumed to have assumed it would be applied.

CSX and its amici - including Walter Hellerstein, the leading state and local tax scholar, who is counsel of record for the Tax Foundation - strongly object to the importation of the complementary tax doctrine into the 4-R Act. First, the Act does not provide an opportunity for a state to justify its discrimination. Second, the Eleventh Circuit was correct that evaluating such a justification would be Sisyphean. In this case, for instance, because the two taxes are levied on different tax bases - the volume of fuel versus the price of fuel - the analysis would need to be updated regularly. Worse, other states have different sets of taxes and exemptions. Furthermore, if there is to be a more holistic analysis, why limit the analysis to a comparison of the sales and excise taxes? Railroads also pay more in property taxes and maintain their own rights of way, while motor carriers enjoy rights of way paid for by their motor fuel excise taxes as well as other taxes. Indeed, if the goal is to treat tax systems realistically, should courts not also consider which entity bears the true economic burden of a tax - that is, its incidence?  Yet tax incidence analysis is a shifting and tentative endeavor, even for trained economists.

Interestingly, the United States, in an amicus brief filed in support of neither party, proposes a Solomonic quasi-resolution of this case. The United States agrees with CSX that the proper comparison class is other competitors. However, the United States agrees with Alabama that the broader tax system should be taken into account, at least to the extent of considering whether the excise tax justifies the discriminatory application of the sales tax. Because the Eleventh Circuit eschewed this task as Sisyphean, the United States argues that the Court should remand the case to the Eleventh Circuit to give the task a try.

It would seem likely that the Court, as in the first go-round for this case, will try to resolve the questions here narrowly, grounding its answer in the text of the statute, such as it is. Nevertheless, given the import of the notion of "tax discrimination" to other federal statutes and to the dormant Commerce Clause in general, even a narrow answer could well have broader implications.

Cross-posted from Justia.

In Part One of this two-part series, I contended that the reading of the Obamacare statute offered by the plaintiffs in the important King v. Burwell case pending in front of the Supreme Court was problematic for reasons grounded in federalism. In particular, I argued that even if the plantiffs' reading-that Congress, by using the phrase "established by the State" in certain places in the Act, intended that citizens of states that did not set up exchanges would not be eligible for federal tax credit health insurance subsidies-reflected the best overall interpretation of the statute, such a reading could not be accepted because it fails the requirement that Congress speak in a "clear voice" if it wants to condition the receipt of federal moneys on things that participating states must do. In the space below, I discuss possible counterarguments to my thesis, and also explain why I believe the federalism perspective I discuss adds an important element to the federal government's position in the King case.

Should the Clear-Voice Requirement Apply When There Is Only One Condition?

Perhaps the most forceful counterargument to my thesis is that the "clear voice" requirement on which I rely should not apply when the alleged congressional spending condition in question is the only condition in the picture, as distinguished from the more common instances in which everyone agrees that Congress imposed some conditions on states for the receipt of federal funds, but the question is whether one or more additional conditions were stated clearly enough by Congress. Why should this difference arguably matter? Because when everyone agrees Congress has clearly imposed some conditions, and participating states have already satisfied those conditions, participating states can be said to have already done something for the federal government. If those states are then confronted with additional, arguably unclear requirements they must also satisfy, the terms of the bargain seem to be changed. Since the Supreme Court has observed, first in the seminal case of Pennhurst State School & Hospital v. Halderman, that "[l]egislation enacted pursuant to the spending power is much in the nature of a contract," when states take actions to satisfy some federal conditions, they could be said to have transferred "consideration" to the federal government (in the form of helping the federal government accomplish whatever policies are furthered by the conditions the states have met.) By contrast, if there is one and only one condition (and its clarity is in doubt), no states can be said to have given any consideration to the federal government in any respect.

But if the presence of consideration were necessary, a state faced with a statute that created a clear condition on federal funding alongside an arguable and in any event unclear condition would be unable, prior to the state's having done anything to satisfy the clear condition, to obtain a judicial declaration that the unclear condition is not valid on account of its lack of clarity. At most, a state could get a court to declare whether the unclear condition was in fact an actual condition. Yet I believe that a court in this situation would apply the "plain voice" requirement to free the state from having to satisfy any unclear conditions.

And remember too that the Court has said that conditional spending is "much in the nature" of a contract, not that it is a contract itself. And there is another doctrine, known as "promissory estoppel," that is "much in the nature" of a contract but that does not require consideration, and instead focuses on the reliance placed on a promise. Consider the following hypothetical. Congress promises a state $X of funding to be used for highway construction for each of the next three years. In Year Two, Congress's budget has provided for the expenditure, but now someone urges that there is the non-obvious requirement in the original statute that states that receive the funding raise their legal drinking age to 25. Could a state be allowed to object to this unforeseeable condition even though the state (up to this point) has not given the federal government anything beyond spending the federally disbursed money as directed? I think the answer is yes, because a state could have relied on the federal promise of funding in deciding how to budget its own state funds for roadwork. Or in deciding what roadway safety laws to enact or reject. And if this is true for road funding, the same would have to be true for money earmarked for healthcare. So if Congress promised three years' worth of federal funding to states for Medicaid (without requiring states to spend any matching funds during this period), and passed laws authorizing the federal expenditures, no one could try in Year Two to assert an unclear condition and apply it to the states, even if it were the only condition anyone had ever suggested was in the statute.

Now it is true, of course, that the states that accepted these (highway or healthcare) funds might not have actually relied on the federal promises when they built their own budgets or policies, and that these states would in fact be no worse off if an unclear condition were to be imposed after the statute was adopted than they would have been if the condition had been clearly expressed by Congress at the outset. But the same is true for the conditional spending mechanism struck down by the Court in the 2012 Obamacare case, National Federation of Independent Business v. Sebelius, which I discussed extensively in Part One. When the Court there invalidated the Medicaid expansion provisions of Obamacare and said that states were not clearly on notice of the possibility of the conditions involved in the expansion when Congress first offered the states Medicaid money decades ago, the Court did not say, or even suggest, that had states actually been told way back when of a possible subsequent expansion that any states would have been likely to turn down the funding at the outset (even before the expansion condition was imposed). And, in fact, no one could suggest that states would have been likely to do that.

This tells us a couple of related things. First, the "clear voice" requirement is not about actual reliance, but rather even the mere hypothetical possibility of reliance on federal assertions. The "clear voice" requirement is a kind of a prophylaxis designed to avoid detrimental reliance before it occurs. And, like all prophylactic devices, it applies even to situations in which the evil to be avoided would not come to pass in any event. Second, and related, the "clear voice" requirement seems largely about showing respect for states by giving them all the information clearly up front to facilitate informed decision making, even if in the real world the decisions by states in such high stakes take-it-or-leave-it settings would not be likely to be affected much by additional clarity. In fact, this is precisely how the Court explained the "clear voice" requirement in Pennhurst, where the majority explicitly observed that "the crucial inquiry is not whether a state would knowingly [have acted differently if the condition had been clearly stated] but whether Congress spoke so clearly that we can fairly say that the State could make an informed choice." In the context of Obamacare, if the setting up of a state exchange was in fact a condition for a state to receive federal tax credit subsidies, respect for states required Congress to say this "clearly [enough] that we can fairly say that the State could make an informed choice" about whether to set up an exchange or not.

Does It Matter Whether Federal Money Ever Enters State Coffers?

But what about the fact that the federal subsidies under Obamacare are going not necessarily into state coffers, but rather directly to the healthcare consumers? Does this feature automatically remove the case from the conditional spending doctrinal category? At least in the context of the King plaintiffs' reading of Obamacare, I think not. The key facts are that, under their reading, tax subsidies are available to individuals as citizens of a particular state qua citizens of that particular state, and subsidy eligibility turns on the actions of that person's particular state government to set up an exchange or not. To see the point, imagine that Medicaid moneys were given not to state governments (conditioned upon the states expending matching funds and doing other things), but instead were given to the individual citizen beneficiaries, but only in those states that had expended matching funds and satisfied other conditions. I think the "clear voice" requirement should still apply. It is true that an individual's eligibility for federal tax benefits can sometimes depend on the particularities of state law in the place of one's residence, and that perhaps not all such interrelatedness between federal and state law triggers the a "clear voice" requirement. But when Congress intends (as the King plaintiffs assert Congress did in Obamacare) to give a state the direct choice of doing something the federal government wants it to do, in return for which the federal government will provide billions of dollars' worth of federal subsidies targeted towards the eligible persons in that state, the state must be able to see that choice easily.

Nor is the situation altered by the fact that the federal subsidies may take the form of tax credits rather than moneys actually disbursed. In fact, the federal government may advance money to Obamacare subsidy beneficiaries (in the form of payments to health care insurers) prior to an individual filing her federal tax return, but even if that were not the case, there should be no difference between a credit and a dollar disbursement; both kinds of programs are enacted pursuant to Congress's power to "tax" and to "spend" for the "general welfare," and are thus laws "enacted pursuant to the spending power," to use the Court's phrase. Indeed, go back to Medicaid. If, instead of affirmatively doling out money to states conditioned upon their doing certain things, Congress credited states (that satisfied certain conditions) with respect to fees or payments those states otherwise owed the federal government, the "clear voice" requirement would surely apply as to the conditions that would generate the credits. (It is true that the Court under the Establishment Clause of the First Amendment has distinguished tax credits from expenditures, but its reasoning there was limited to certain peculiarities of Establishment Clause jurisprudence.)

Does The Federalism Argument Add Much to Other Arguments Already in the Case?

Finally, I think it important to reflect on why this federalism "clear voice" requirement could prove especially important in the King case. For starters, this is an argument that was not really addressed by the two judges of the D.C. Circuit who (last summer) ruled in favor of the reading of Obamacare advanced by the King plaintiffs, so we don't know whether judges who are otherwise inclined to agree with the King plaintiffs would be unpersuaded by the "clear voice" line of argument. Indeed, even the Fourth Circuit that rejected the King plaintiffs' reading did not rule on this argument (though a form of this argument was made in the State of Virginia's amicus brief), so if observers believe (as many do) the Supreme Court's grant of review in King means that there are at least four Justices who were unpersuaded by the Fourth Circuit ruling, having an argument that was not addressed in the Fourth Circuit opinion is a good thing for the federal government.

The Fourth Circuit did rely on a related, but importantly different, kind of requirement of statutory unambiguity-the so-called Chevron doctrine (named after the 1984 Chevron, USA, Inc. v. Natural Resources Defense Council case)-under which federal courts defer to an administrative agency's interpretation of an ambiguous statutory term, so long as the administrative interpretation is reasonable. But there are many reasons why one could reject Chevron deference in King and yet apply the "clear voice" requirement of Pennhurst. First, and most technically, Chevron deference applies only if Congress can be said to have delegated to the agency in question (here, the IRS) the authority to interpret the relevant provisions in the statute. Different Justices seem to require different levels of clarity in that initial delegation, and the 2013 Arlington v. FCC case (about which I wrote a Justia column) exposed unlikely rifts between ordinarily like-minded Justices on just how far Chevron should be extended. In particular, Chief Justice Roberts, joined by Justices Kennedy and Alito, declined to read Chevron broadly, largely because of fears that the federal executive had become too powerful and that giving federal agencies broad interpretive authority is particularly dangerous. In the context of Obamacare, there may be disputes about whether the Chevron framework should be applicable.

Second, even if the Chevron doctrine governs, under it federal courts must give effect to the "unambiguously expressed intent of Congress"; deference to the agency comes into play only after it is determined that Congress has not expressed such an unambiguous intent. Now it may seem that "unambiguous intent," and "clear voice" capture the same idea, but I don't think that the two concepts in these two settings are identical. In other words, it is possible to say that Congress's intent was expressed unambiguously such that Chevron deference doesn't apply, and yet still say that Congress hasn't spoken in a sufficiently clear voice to satisfy the Pennhurst standard. In particular, many courts (including the Supreme Court) have used legislative history behind a statute, and also the way a statutory term may have been used in earlier statutes, to determine whether Congress's intent with respect a particular statute was expressed unambiguously for Chevron purposes. But I can't see how those extra-statutory sources could be used to decide whether Congress has spoken in a "clear voice" to put states on adequate notice in the conditional spending realm. On top of that, a provision whose meaning takes too much work for states to discern, even within the four corners of a single convoluted statute, might not be expressed by Congress in a "clear voice," even if in the end Congress's will is discernable to a high degree of confidence.

Relatedly, and more generally, Chevron is about separation of powers-the relationship between Congress, the federal judiciary and the federal executive. That is why the initial inquiry under Chevron is how much Congress delegated to the federal agency and how certain we can be about "the intent of Congress." By contrast, the "clear voice" rule is about federalism-the relationship between the federal government and state governments. That is why, in conditional spending cases, the Court says that "[w]e must view [a federal statute] from the perspective of a state official who is engaged in the process of deciding whether the State should accept [federal] funds. . . . " In conditional spending settings, we care less about how firm we are in our conviction of what Congress wanted, and more about what states would have necessarily understood.

Federalism and separation of powers push different buttons for folks. On and off the Court, many observers today seem to be (legitimately or not) concerned about broad assertions of federal executive authority. Recall that Chief Justice Roberts and Justices Kennedy and Alito have recently (in the Arlington case) expressed qualms about the breadth of Chevron precisely because they fear federal executive power. Chief Justice Roberts wrote that administrative agencies today "as a practical matter . . . exercise legislative power, . . . executive power . . . and judicial power. . ." and that the "accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan [, but rather] a central feature of modern American government." These Justices (and it's hard to imagine the federal government prevailing in King without winning over at least one of them) may be more receptive (as all three were in the Medicaid expansion setting in 2012) to arguments that are grounded in the distinctive respect owed states, and the Simon-says-like rules we should employ to make sure states aren't duped or misled into making decisions without being able to be aware of the consequences.

Cross-posted from Justia's Verdict.

A few months ago, I wrote about an effort by the California legislature to undo an unwise (but duly enacted) voter initiative involving immigration policy. I argued that although removing the initiative's provisions from the books would certainly be a good thing, the legislature lacked the power to effect repeal on its own; respect for the initiative process requires that the people themselves formally weigh in on any proposed repeal. In the space below, I discuss another effort, albeit this time via the judiciary rather than the legislature, to prevent the people from formally weighing in on another hot-button issue: campaign finance reform.

Background and Content of SB 1272 (Which Attempted to Place Proposition 49 on the Ballot)

In July, both houses of the California legislature enacted a bill (SB 1272) that proposed to place an "advisory" question before the California voters in this November's election. SB 1272 submits the following question (designated by the California Secretary of State as Proposition 49) to the California electorate for its input:

Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are rights of natural persons only?

The Howard Jarvis Taxpayers Association and its president Jon Coupal (crusaders for lower taxes in California who have made extensive use of the initiative process for decades) filed a petition in state court seeking to block Proposition 49 from appearing on the November ballot. (The Secretary of State has been in the process over the last few weeks of finalizing the ballots that are being printed so as to be usable in November.) The petitioners argue that the legislature exceeded its powers in trying to place Proposition 49 on the ballot, since, they say, the measure "enacts no law" or "statute," but instead is purely advisory. In a surprise to some political observers, on August 11 the California Supreme Court, by a 5-1 vote (the court is temporarily down one member since Justice Kennard's retirement last spring), decided to block the measure from the ballot, at least for now. (Chief Justice Cantil-Sakauye was the lone dissenter and, as I explain below, she may well have had the right instinct.) The court asked for further briefing over the next month on the validity of advisory measures like Proposition 49, but decided that if Proposition 49 turns out to be permissible, it can be placed on a ballot after November. By contrast, if the measure turns out, on more reflection, to be impermissible, any damage it might create by virtue of its appearance on the November ballot would be hard to remedy.

Although the court did not conclusively decide the validity of Proposition 49, Justice Goodwin Liu wrote an opinion explaining why he believed there was a high likelihood that, after full briefing, he would find the measure to be improper. Putting aside whether trying to amend the federal Constitution to undo Citizens United is a good idea (and I have my doubts), the legality of Proposition 49 raises important and interesting questions under California law. And even though his opinion wasn't joined by other Justices and was preliminary in the sense that he is completely free to rethink things with the benefit of additional briefing and more time, Justice Liu's statement warrants careful attention because he is an intellectual leader on the court, and because he succinctly laid out the case against Proposition 49 that the measure's supporters need to engage.

Justice Liu's Reasoning in Doubting Proposition 49's Validity

Before I turn explicitly to Justice Liu's reasoning, I should say it's not clear to me that the challengers are correct in saying that SB 1272 does not enact a "law" or "statute" (to the extent that anything turns on this). SB 1272 directs that public monies be spent to print text on paper ballots, and that public monies be spent to count the votes in answering the question posed on the ballot. If the legislature passed a bill directing that money be spent on a university poll/study of citizen attitudes on global warming or drug legalization, that bill would be a law, even though the university-led poll/study might not have any self-executing legal effect. Why not the same for a poll/study conducted by the legislature itself?

The legislature argued before the California Supreme Court that SB 1272 is valid whether or not it "enacts a law," because the legislature has the power to do things "incidental and ancillary to the ultimate performance of lawmaking functions by the legislature itself." Seems like a pretty good argument. Justice Liu deflected this suggestion, though, because Proposition SB 1272 does not relate to any potential piece of legislation, but rather to the proposal and ratification of a potential federal constitutional amendment. Justice Liu pointed out (quoting a U.S. Supreme Court opinion) that "[r]atification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word."

I am far from sure that it makes sense to distinguish between legislation and other important actions the legislature takes with regard to the outside world matter here. In the federal context (where the legislature's powers are even more rigorously confined), Congress is empowered to take actions that are "necessary and proper" to carrying into execution all the powers vested in the federal government, not just the legislative powers Congress enjoys.

To see why putting a great deal of weight on the legislation/ratification distinction is perilous, imagine that Proposition 49 were tweaked to include a clause asking the voters whether the California legislature should adopt laws that "test the reaches" or "limit the scope" of Citizens United. It's hard to imagine that this difference in wording should change whether the measure should be allowed on the ballot. And, to his credit, Justice Liu, soon after he draws the distinction between amendment ratification and legislation, makes clear that his real beef with Proposition 49 is that it is purely advisory, and does no more than seek voter opinions in a formal way. In other words, his tentative position seems to be that whether or not SB 1272 is or relates to a "law" or "statute," putting advisory measures before the voters runs afoul of the California Constitution.

But what, precisely, is wrong with the legislature formally asking for the views of the electorate? Justice Liu derives his answer from the concept of accountability. If, he says, "the legislature were to propose a statute for the voters to approve," or ask the voters whether the legislature should adopt a statute containing specific text, and then that statute became law, the lines of accountability would be obscured. If the statute turned out to be a disaster, the legislature might evade responsibility by saying something like (my words, not Justice Liu's): "But you voters approved (or told us to do) this, so you can't now blame us!" By contrast, when the legislature passes a law by itself, citizens can hold it accountable, and when the citizens themselves propose and enact an initiative, they have only themselves-and not the legislature-to blame. Keeping these lines of accountability clear and clean is an important principle that Justice Liu finds implicit in the structure of the California Constitution.

Three Possible Counterarguments to Justice Liu's Reading

On its face, this is a very plausible, creative, and elegant argument, but to my mind it suffers from some significant weaknesses-weaknesses that I hope will be explored in the full briefing for which the court asked. First, as Justice Liu acknowledges, the California Constitution explicitly allows the legislature to propose, for voter approval, state constitutional amendments and also certain statutes authorizing the issuance of bond debt. If these super-important matters can admit of a "mix and match" approach (Justice Liu's term) that makes use of both legislative vetting and popular approval, why wouldn't the same be true for other, less important, matters? Indeed, to the extent that accountability is an important value, wouldn't we want to promote the greatest degree of easy accountability when the stakes are the highest? (More generally, given the cluttered and ultra-detailed nature of the California Constitution, it's hard to draw any bright line that would explain why proposals for altering the state constitution raise fundamentally different concerns than do measures relating to possible statutes.) All of this suggests that easy accountability may not be the overriding constitutional value at work here; the U.S. Constitution and most state constitutions make consistent and convoluted use of shared governmental power that obscures accountability for the sake of other important values, such as deliberation and caution. And-like bicameralism, the veto, and any number of other accountability-blurring "checks and balances"-advisory measures may also promote such deliberation and caution.

Moreover, Justice Liu acknowledges that it would be perfectly appropriate for the legislature to commission a Gallup poll of state voters to assist it in its legislative agenda. Wouldn't the results of such a highly publicized poll also blur accountability? And to the extent that the legislature can more readily avoid responsibility by pointing to a public vote rather than a privately conducted poll, isn't that only because a public vote is a more reliable measure of true attitudes of the body politic? And wouldn't we want the legislature to have the most reliable data available to it?

Second, and quite important, notice that Justice Liu's straightforward accountability argument would seem to forbid not only the legislature's placement of an advisory measure on the ballot, but also the people's direct attempt to put an advisory measure on the ballot to give the legislature formal input. Such a result (which might be supported by, but is not dictated by, past California cases) would create a deep structural dilemma because citizens are not always skilled at drafting laws that will operate in the real world, even if they have a good sense of which values they'd like to promote. Indeed, one of the big drawbacks with the initiative device modernly is that areas like affirmative action, immigration, campaign finance, taxation, etc., are so complicated that initiatives written by non-experts often lock in sub-optimal specifics in attempted furtherance of (at least arguably) laudable and broadly supported sets of principles. In a sensible system that includes direct democracy, there ought to be a way for the voters to say, in a focused and formal way: "We'd like a law that does the following things, but we'd be better off leaving it to legislative experts to draft the details, because we might not do a good job on the fine points, and we thus might generate undesirable consequences that a legislature but not ordinary citizens would be able to foresee." Having citizen groups feel obligated to draft and implement the particulars of complex policy measures is one of the problems with direct democracy we should want to reduce, not one of its salutary features we should want to enhance.

Third, and in some respects most important, I note that there is a provision, Article 1, § 3(a), in the California Constitution that explicitly provides that "the people have the right to instruct their representatives." "Instruction" is a constitutional term of art that goes back to the eighteenth and nineteenth centuries; it is a formal device by which voters collectively direct their state (but not federal) legislators to undertake specific legislative actions, and legislators are bound to comply. As constitutional historians Dan Farber and Suzanna Sherry have observed: "[At the founding in 1787] [v]oters in most states . . . had the right to instruct their representatives and to direct votes on individual issues. [Four] state constitutions [explicitly] guaranteed such a right. In the others, the right was assumed." From what I can tell, the formal right of instruction has been included in every version of California's Constitution going back to 1849, shortly before California became a state.

Over the past two hundred years, the device of formal voter instruction has been invoked with decreasing frequency across the nation, and the idea that state legislators would be legally bound to follow any instruction has also been diluted. Indeed, the California Supreme Court has not meaningfully discussed Article 1, § 3(a)'s instruction provision in recent decades, if ever, even in instances in which the voters seem to have attempted instruction. (American Federation of Labor v. Eu, decided in 1984, is one such case where the court inexplicably failed to discuss the provision.) The Article 1, § 3(a) issue may not have been briefed to the court in the Proposition 49 papers, which would certainly account for and justify the failure of Justice Liu's opinion to mention it.

But the fact that the instruction device has fallen out of favor or lost its power to legally bind legislators does not mean that the device and its textual and historical pedigrees should be ignored. Before the California Supreme Court issues an opinion (after full briefing and careful deliberation in the Proposition 49 matter) holding that any statewide information-gathering "advisory" measure, whether the measure comes from the people directly or from the legislature, is per se inappropriate for the ballot, the court should explain why it is reading the instruction provision out of the state constitution (or at least reading it not to apply in these circumstances).

Finally, I do acknowledge that there might be arguments that distinguish between advisory measures originating from the people and advisory measures the legislature seeks to place onto a ballot. Such arguments could be used to strike down Proposition 49 without gutting the people's right to instruct. At present I am not convinced that any such arguments do forcefully undermine SB 1272 and Proposition 49, but I look forward to seeing what the briefing and the court's ultimate opinions say.

From Justia's Verdict.

In this column, I explore what might be learned from the decision by the House of Representatives last week and the seemingly imminent (as of this writing) decision of the Senate this week to pass a bill that seems on its face to directly violate the clear text of the Constitution.

The No Budget, No Pay Bill and the Text of the Twenty-Seventh Amendment

The bill, one part of which temporarily suspended the debt ceiling, included another part referred to as the “No Budget, No Pay Act of 2013.” (I shall refer to it here as the “NBNP bill” or “NBNP proposal”). This latter part of the bill, which kicks in on April 16, prevents any member of Congress in a House of Congress (i.e., the House of Representatives or the Senate) from receiving her or his federal salary until the House of which s/he is a member adopts a budget, or until the last day of the 130th Congress (January 3, 2015), whichever comes first. In essence, the bill withholds salary from all members of a House during the time the house has failed to produce a budget.

On the face of it, the idea has some appeal. Why should federal legislators get paid until they do what most everyone would think is one of their most important parts of their jobs? Of course, some critics will say it is unfair or unwise to punish all members of a legislative body if only some members are causing an impasse. And withholding salary creates disparate impacts along class lines (independently wealthy legislators don’t rely on their salary for living expenses anyway) and also perhaps (because class and race are correlated) racial lines. But no punishment/incentive-creation is perfect, and this legislative proposal is certainly in the American mainstream as concerns precision.

But here’s the problem: The Twenty-Seventh Amendment (proposed in 1789, but not ratified until 1992) says: “No law, varying the compensation for the services of Senators and Representatives, shall take effect, until an election for Representatives shall have occurred.” That is, no law changing the compensation of members of Congress can be put into operation until after the next Congressional election has taken place.

At first blush, the textual argument against the NBPA bill seems to be a slam dunk. But what about the provision that gives all House and Senate members all of their withheld salary on the last day of the 130th Congress (January 2015), even if no budget has been passed by then? This provision was included, according to the text of the bill itself, “to ensure that this [law] is carried out in a manner that shall not vary the compensation of Senators or Representatives in violation of the twenty-seventh” amendment. Does it save the Act from 27th Amendment challenge?

I don’t see how it could. Assuming that federal legislators are currently paid bi-weekly or monthly, the NBNP proposal could mean a delay of almost two years for receipt of the salary earned in spring of 2013 (from April 2013 until January 2015). Given the time-value of money, such a delay would seem to change, or vary, the compensation a person receives. We all know that when it comes to paying or receiving cash, the “when” is an important factor in determining the “how much.” (For instance, if a person were due $150,000 in December 2013 and did not receive the money until April 2015, she would have lost, even in the current low-inflation, low-interest-rate environment, something more than $2,000.) Even if there is no constitutional entitlement of members of the House and Senate to be paid pursuant to any particular pay-period timeline, there is already a statutory prescription of a certain pay period in place, and changing that pay-period so drastically has to be understood as “varying the compensation.”

Indeed, if deferring the compensation by almost two years is not “varying” it, then why couldn’t Congress defer members’ compensation for 20 years? There is nothing magical, within the words of the 27th Amendment, about the expiration of the 113th Congress. Either changing the pay period and altering in a non-trivial way the date on which the money is received is varying compensation, or it is not. And yet who among us would deny that if the NBNP proposal had deferred compensation for 20 years if a budget was not passed by a certain deadline, such an approach would run afoul of the 27th Amendment?

Perhaps a few other hypotheticals will drive the point home. Imagine that Congress at the end of 1980 (when interest rates were well into the double-digits) amended then-current law to say that all pay for an entire session of Congress (two years’ worth) shall be received by each federal legislator on the first day of the new Congress? Does anyone think that this effective increase in pay (accomplished by giving legislators access to the money earlier, rather than later) would not constitute a compensation increase that would trigger the 27th Amendment?

Or imagine that Congress passed a law providing that, going forward, federal judges have to wait for 20 months to be paid for judicial services rendered. Would anyone doubt that such a law violates Article III, which says that “[c]ompensation [for federal judges] shall not be diminished during their Continuance in Office.” Indeed, even a statutory discontinuance of yearly cost-of-living adjustments for judges might constitute a change in compensation, whether or not cost-of-living adjustments are constitutionally required in the first place.

Now the NBNP bill might be more defensible if the money in the escrow account were earning interest that was also supposed to be given to each legislator when the salary payment was ultimately made. If so, the key questions would include whether the interest that each legislator ultimately received fully compensated him or her for the inability to use the money earlier—for example, whether the interest earned made up for any interest that the legislator might have had to incur on a loan taken out to pay living expenses during the interim. Even then, the hassle of a legislator who was not wealthy having to procure an alternative cash flow on which to live until the escrow funds were paid may constitute a variance in compensation. But we needn’t even consider such complexities because the bill does not provide that the funds in escrow can earn any interest to be paid to the legislators, and indeed says that the “remittance with respect to a [salary] payment deposited in [the] escrow account” shall be the “same [as] would apply . . . if the payment were not” ever placed in escrow, suggesting that only the salary itself (and no earnings on it) can be distributed to the legislator down the road.

Let me proceed on the view (whether or not I have convinced everyone that this view is correct) that the NBNP bill violates the plain terms of the 27th Amendment. What does it mean, about the Congress or about constitutional interpretation more generally, that federal legislators would pass this bill?

A (Hypocritical) Rejection of Textualism

Last week’s House vote may tell us that many conservative members of that chamber (and conservatives voted for the bill in much higher numbers than liberals) are somewhat hypocritical in their views on constitutional interpretation. Although each member of Congress certainly has his or her own nuanced understanding of the Constitution, the model for constitutional interpretation for many conservatives on Capitol Hill is Justice Scalia, who is well known for his commitment to textualism—to applying the text of the document as “intelligent and informed people of the time” of the document’s enactment would have. Under Scalia’s approach, the meaning that counts is “the original meaning of the text”—“how the text of the Constitution was originally understood” by interpreters of the day. What the original draftsmen (that is, the people who actually wrote the words) subjectively intended might be evidence of what the words meant at the time, but any divergence between the drafters’ subjective intentions and the most likely understandings of those words at the time of enactment would be resolved in favor of the latter.

It’s hard to imagine that the word “vary” meant anything different to intelligent readers in 1787 than it does today—to change or alter in any direction. Indeed, the 27th Amendment is one of the most textually straightforward provisions in the Constitution, unlike provisions such as those guaranteeing “due process” or concerning the”taking” of property, which appear to use terms of art.

To be sure, someone might argue that “varying” really should be understood to mean “increasing,” because the primary concern on the minds of the framers was preventing Congress from increasing its own salary and benefitting from that increase before the voters could throw the bums out. But the Constitution uses (a form of) the word “vary,” rather than the word “increase.” And the framers knew how to specifically describe salary raises. In Article I, Section 6, for example, the Constitution refers to offices “the emoluments thereof [which] shall have been increased. . .” Thus, the choice of the word “vary” in the 27th Amendment seems quite deliberate, and quite clear.

I should note also that one could easily imagine why the 27th Amendment’s framers wanted to safeguard against certain salary decreases as well as increases. Suppose, right after an election, a lame-duck Congress run by one party rams through a law drastically cutting Congressional salaries because the opposing party will be taking over Congress in a few weeks and the outgoing party wants to deprive the newcomers of money on which they can live while governing. The new Congress would be put in the awkward position of having to “increase” their own salaries right after they take office, simply to restore the salaries to their previous, unmanipulated, levels. Let us put aside the political difficulties of the new members of Congress trying to increase their salaries to the former levels (and we saw in the fiscal cliff machinations earlier this year that it matters, politically and rhetorically, whether someone is technically “raising” taxes—or salaries—even if the raise is simply a restoration). If the 27th Amendment used the word “increasing,” rather than “varying,” the unfair actions of the lame-duck Congress would be permitted, and any attempted restorative increase by the new Congress (even if politically viable) would not be able to take effect for two years because it would technically be an increase; as a result, the newcomers in Congress would be deprived of a fair wage for at least two years. By using the word “varying,” the 27th Amendment prevents this—and other partisan or discriminatory—salary reductions in the first place.

And in any event, such arguments about legislative purpose that are in tension with the clear text take us far away from the anchor of the words that Justice Scalia and other textualists (rightly) argue must constrain us. (In a similar fashion, arguing that a 30-year old should be eligible for the Presidency today because Article II’s requirement that Presidents must be at least 35 was included simply to ensure that Presidents are mature, and 30-year olds are mature today, would have little traction in light of the clarity of Article II’s words.)

Another Possible Inference: Congress Doesn’t View Its Job as Interpreting and Complying With the Constitution

Another reading of this episode may be that members of Congress do not view it as their jobs to decide constitutional interpretive questions when they pass laws; instead, that is for the courts to do. Certainly some other folks in the political branches seem to have taken that position in recent decades. Former President George Bush, for example, signed into law the McCain-Feingold Campaign Finance Reform Act, even though he thought the bill contained “provisions [that] present serious constitutional concerns” and “questions [that will] arise under the First Amendment,” and in spite of the fact that he had “reservations about the constitutionality of the broad ban on issue advertising.” In defending his decision to nonetheless sign the bill into law, President Bush said: “I expect that the courts will resolve the[] legitimate legal questions as appropriate under the law.”

Certainly not all Presidents think that constitutional interpretation is reserved only for the Courts. Andrew Jackson didn’t, Abraham Lincoln didn’t, and Barack Obama does not, as evidenced by his decision not to have his Justice Department defend the Defense of Marriage Act (DOMA) in federal court based on his belief that the statute is unconstitutional.

For me, it is hard to think that the job of a member of Congress does not include interpreting and complying with the Constitution. Every House member and Senator is required by the Constitution to take an oath to defend it as the Supreme Law of the Land, and many of the (compelling) arguments that Chief Justice John Marshall advanced in the famous Marbury v. Madison case justifying the power and duty of the federal courts to independently obey their understanding of the Constitution apply to the legislative branch as well.

A Protest Vote?

What if the folks in Congress know that the NBNP bill is unconstitutional, but do not care, because they want to send a political message? Sometimes it seems Congress does pass a law that it knows or expects that courts will not enforce, simply in order to express a particular view. For example, shortly after the Supreme Court struck down a Texas law banning flag burning as violative of the First Amendment in 1989, Congress passed a very similar federal ban on flag burning to show support for the flag. Although some members of Congress might have (wrongly) believed that the federal law was distinguishable from Texas’, others might simply have wanted to vent their strong feelings against a Supreme Court interpretation of the First Amendment with which they disagreed.

Even if venting one’s feelings against the Court’s judgment might make sense in some settings and at some level be legitimate, in the case of the NBNP proposal, the Congress – to the extent that it is venting its feelings here – would be venting against the words of the Constitution itself, rather than some judicial interpretation of them. Surely a more responsible form of protest would be a resolution decrying the limits of the 27th Amendment, or a well-crafted proposal to amend the 27th Amendment to permit (at least certain) immediate congressional pay decreases.

Where do things go from here? Assuming the Senate does pass the bill in its present form and it becomes law (either because the President signs it, or because his veto is overridden), someone in Congress who needs or wants her pay will likely bring suit. A legislator who has decided not to run for reelection in Congress in the future might be the ideal plaintiff; other plaintiffs may be deterred from suing for fear that their election opponents down the road can make use of their boldness in suing to be paid without having accomplished their job. Because the plaintiff’s personal paycheck would be affected, she would clearly have standing to sue in federal court (under the famous Powell v. McCormack case). It is an interesting question whether a legislator would have to wait until April 16 to sue. On the one hand, until we know whether each House has passed a budget as of that date, the injury and case are arguably unripe. On the other hand, a legislator might plausibly claim even before then that she does not want to feel influenced to vote for a budget bill simply to avoid losing some money to which she is constitutionally entitled.

Assuming that a federal court were to hear the case on the merits and agree with the straightforward reading of the 27th Amendment that I have advanced above, the real question would then come down to remedy. What should a court confronting the Act do? The bill in its present form does not seem to include a provision that provides for “severability,” that is, the idea that even if the NBNP part is invalid, the part suspending the debt ceiling still remains in force. Perhaps a court would find the two parts to be independent of each other, and save the debt-ceiling suspension, but it is remarkable that the House would not only pass a bill parts of which seem blatantly unconstitutional, but then also make no mention of whether the other parts should survive or not. One would hope for a more careful and serious job of drafting to have occurred when the stakes are so high.

This Op-Ed appeared in the Sunday edition of The Sacramento Bee.

Homeownership promises more than it delivers. Americans purchase homes for perceived financial security and social benefits, while politicians push homeownership for imagined economic growth. Such claims are traded like stock tips around water coolers and repeated by "experts" paid by the real estate and home building industries. But they are merely myths, widely held but false.

Here are some of the biggest whoppers.

Homeownership is a good investment.

According to housing guru Robert Shiller, from 1950 to 2000, annualized returns to housing averaged less than 0.5 percent after adjusting for inflation.

Returns were even lower over a longer horizon, with real prices growing 0.4 percent per year from 1890 to 2004. Relative to other investments, owner-occupied housing has grossly underperformed.

Between 1926 and 2009, compounded annual returns for small stocks (11.9 percent), large stocks (9.8), long-term government bonds (5.4), and Treasury bills (3.7) far outpaced housing returns.

Owning a home is the path to prosperity.

At best, homeownership amounts to a decent savings account, but even then it is ineffective. Policies like the mortgage interest deduction encourage taxpayers to finance homes with debt, and result in leveraged ownership, not true ownership.

Between 1950 and 2010, the percentage of home equity plunged from 80 percent to 38.5 percent. In the words of one commentator, "the cold, unsentimental fact about the American dream is that Americans never really owned it in the first place."

Homeownership creates positive social benefits.

The housing industry likes to say that homeowners enjoy better lives than renters. It touts studies correlating homeownership with higher rates of civic participation, beneficial effects on children's well-being and behavior, and lower rates of crime.

But no study has identified a causal connection between homeownership and what economists call "social capital." Children of homeowners might exhibit lower rates of truancy than children of renters, but that doesn't mean renting will land your kid in juvenile hall or that owning will get her into Harvard.

In fact, studies that isolate causal influences of homeownership on social capital find that the purported benefits disappear and even become negative.

Housing subsidies lower the cost of homeownership.

Current housing policies distort the allocation of financial capital by altering the decision to pay for homeownership with debt over cash or other assets.

Thanks particularly to the mortgage interest deduction, mortgage indebtedness soared in the decade preceding the housing collapse, rising as a percentage of GDP from 47 percent in 1995 to 81 percent by 2007.

Subsidized mortgage debt encourages homebuyers to consume bigger, costlier homes. Yet artificially boosting the cost of housing helps no one. Higher prices prevent millions of potential homebuyers from entering the market.

And while current homeowners may prefer inflated prices for maximizing gain upon sale, any perceived benefit is illusory as sellers become buyers in the same overheated market.

Housing subsidies help the economy.

Housing subsidies distort the decision over where to invest as much as how to invest. By lowering the cost of owner-occupied housing, subsidies contribute to overinvestment in residential real estate.

"Don't build a factory, build a mansion," economist Kevin Hassett has said of the mortgage interest deduction's influence on capital investment. Indeed, while the tax rate on corporate investment exceeds 30 percent, housing enjoys a rate near zero.

The distortions caused by tax subsidies for housing may account for half of all misallocated capital in the economy, shrinking GDP by 10 percent.

They also contribute to labor immobility, which raises unemployment. No wonder nearly every economist believes "the most sure-fire way to improve the competitiveness of the American economy is to repeal the mortgage interest deduction."

Housing subsidies help middle-class families.

Subsidies for homeownership accrue disproportionately to upper-income households.

Only 3 percent of taxpayers report income over $200,000, but they enjoy 35 percent of the mortgage interest deduction's largesse, while the 75 percent of all taxpayers earning less than $75,000 receive just 11 percent.

In fact, the mortgage interest deduction delivers 10 times the savings for households with income over $250,000 compared to those with income between $40,000 and $75,000.

The disparity in benefits exists because taxpayers receive them only if they itemize deductions.

But just one-third of taxpayers itemize, while two-thirds take the standard deduction (and thus receive no benefits). Even among itemizers, high-income households receive larger benefits, because the value of the subsidy rises as taxable income increases.

There are good reasons to buy a house. But none of them involves attaining financial security, admission to elite colleges, a stronger economy, lower taxes, or the American dream.