Mar 18, 2025 Aila HossNative Peoples Law
Nothing ruins my appetite for research and commentary on elections and politicians more than a presidential election. Civic duty and guilt keep me engaged, albeit begrudgingly. So, when my initial intrigue in picking up Professor Elizabeth Reese’s recent article, Tribal Representation, and Assimilative Colonialism, turned into captivation, I knew this piece was something I had to share.
Tribes have been exercising their authority as sovereign nations since time immemorial. Tribal sovereignty is an inherent authority that originates from a social contract between a government and its citizens. It predates the United States and colonial governments. Although colonization and genocide diminished Indigenous populations and impeded Tribal governments, Tribes persisted. Today, Tribes occupy a unique status in the United States. They maintain their nationhood while being part of the American family of governments—federal, state, local, and territorial.
The United States recognizes the sovereignty of 574 Tribal nations, each with distinct governing authority over their land and people. Tribes control over 100 million acres of land, a little over half as part of reservation and trust lands. Nearly 10 million people identify as American Indian or Alaska Native, although not all are Tribal citizens. Some Tribes have land bases and populations that are comparable to smaller states. American Indian and Alaska Native people are the most heavily regulated group under federal law.
And, yet, as Professor Reese astutely observes, there are no Indian states nor Tribal representation in the federal legislature. This article examines why this is the case. She also considers mechanisms for formal representation of Tribes within American democracy.
The article is elegant in its organization, with three discrete sections that build off one another. Section I outlines the long and racist history of the disenfranchisement of Native people in democratic processes. Native people were considered “uncivilized” and “savage.” Minority enfranchisement, it was said, would also threaten the political power of white majorities. Native people were not afforded U.S. citizenship until the passage of the Indian Citizenship Act of 1924.
Section I also chronicles the history of failed proposals for Native statehood. In the first treaty between the newly formed United States and a Tribal nation, the Treaty with the Delawares, 1778, a provision contemplated the Delaware Nation’s future membership in the confederation and representation in Congress. However, this never came to pass.
Two additional proposals concerned lands west of the Mississippi, an area later known as Indian Territory, where several Tribes would be relocated to following forced removal. Orchestrated by President Andrew Jackson in 1834, Congress introduced legislation establishing this land as a territory that would eventually be admitted as a state. The legislation was met with staunch opposition and failed. Another proposal involving converted Indian Territory into the State of Sequoyah. The Five Tribes with reservations in this area–Cherokee, Choctaw, Chickasaw, Seminole, and Muscogee–supported the proposal. Legislation in both the House and Senate failed.
Efforts to secure Tribal delegates to Congress have also been unsuccessful. The Treaty of New Echota, 1835, between the United States and the Cherokee Nation provides a Tribal delegate in the House of Representatives “whenever Congress shall make provision for the same.” Congress has not made such a provision despite calls from the Cherokee Nation to do so. Congressional legislation provided for Congressional delegates from the Five Tribes in Indian Territory. These, too, failed.
Professor Reese coins the term “assimilative colonialism” to describe this systemic exclusion of Tribal governments in US representative democracy. She defines it as “the practice of offering American political power–whether citizenship, the right to vote, or the possibility of statehood–only on terms of racial, cultural, or political erasure.”
In Section II, the article describes the status quo for Native participation in electoral politics today. Despite increased representation of Native people in government and Tribal successes in lobbying, Native people continue to be disenfranchised. Native and Tribal representation is particularly insufficient at the federal level, where Congress exercises plenary power, the ability to legislate over all matters concerning Tribes and Native people. Plenary power can and has been used to abrogate treaty rights, infringe on Tribal sovereignty, and limit Indigenous civil and human rights.
The status quo is insufficient to support Tribal and Indigenous interests in American political systems meaningfully, the article concludes. So, Section III considers “representative remedies” to better align Tribal representation in American democracy. It asks the reader to “open your imagination to alternatives to the status quo,” which would require significant structural changes to our political institutions. The article uses variations of the term “imagine” over ten times. I heeded the request in the context of the models considered in the article and some that were not.
I imagined what Tribal statehood could look like today and considered if such a model could exist without undermining Tribal nationhood. I imagined not only a Cherokee delegate in the House but hundreds of Tribal delegates, even voting ones! Even in the Senate! I couldn’t stop there. I brought back treatymaking. I imagined rewriting entire swaths of the Constitution, salivated at the thought of overruling problematic Indian law decisions from the Supreme Court, and drafted a dozen bills in my head.
My musings might not be what Professor Reese had in mind in her request for the reader to use their imagination. But her call for creativity in legal reform was refreshing. So much of legal scholarship, including my own, is anchored in pragmatism and incrementalism. Here’s to hoping Professor Reese’s excellent article encourages the legal academy to be more ambitious in future work.
Feb 17, 2025 Betsy FisherImmigration
When is a citizen stateless? This is not a children’s joke with a clever punchline; living with an entitlement to but without recognition as a citizen is the lived experience of untold numbers of people globally. It is also a matter of scholarly debate: are such individuals, entitled to nationality but unrecognized by their state, stateless? Or are they merely de facto stateless? Some have argued that such individuals are stateless, and that the term de facto statelessness is unhelpful. These scholars can point to the international definition of statelessness as someone ‘not considered as a national by any State under the operation of its law.’ The argument goes, if someone is entitled to nationality, but not considered as a national, they are stateless, full stop. Others point to the 1954 Convention’s failure to protect de facto stateless people as proof of its inadequacy to protect people without state protection.
Ghost Citizens joins this conversation, noting Prof. Jamie Chai Yun Liew’s view ‘that the legal fact of being conferred citizenship is important. As such, persons should be considered stateless until they are legally recognized as a citizen.’ But her monograph pushes further, arguing that we must also explore why the state determines who is a citizen to start with. Here, she joins the theoretical contributions arguing that genuine links to a state should establish a stateless person’s claim to citizenship.
Ghost Citizens focuses on the legal system and experiences of stateless people in Malaysia, but the volume understands that its lessons apply more broadly. Liew mentions that many of the book’s lessons would apply in other postcolonial states, and she also sees resonances from Canada, where she practices law. Indeed, the experiences of stateless people that she recounts strongly resemble the experiences of stateless people in the United States, which shares a fractured system with limited protections for stateless people and an emphasis on officials’ discretion.
Liew’s many talents as a lawyer, academic, storyteller, and interviewer are on display in this slim but rich and interdisciplinary book. Rooting the book in her family’s own experiences with statelessness, Liew engages with political and sociolegal theory; analyzes Malaysia’s legal system; and presents the personal experiences of stateless people, lawyers, and NGO representatives based on her ethnographic research.
The strength of this book lies both in its exploration of sociolegal theory as well as its meticulous evidence drawn from legal and ethnographic research with stateless individuals and advocates in Malaysia. Ghost Citizens offers a well-developed case study and provides a model framework for documenting and learning from stateless individuals and advocates. The volume expands the literature about the intersectionality of statelessness with gender discrimination, racial discrimination, and birth registration. It also further develops scholarship on statelessness in situ, offering an important caution against assuming the foreignness of stateless individuals and appropriateness of stateless determination procedures in all situations.
Finally, Liew’s concept of a ‘ghost citizen’ is an important theoretical contribution to the ongoing scholarly conversation on concepts of belonging and the right to nationality. Liew convincingly argues that we ought not to overly trust states, which are the primary obstacles for many stateless people in obtaining recognition as nationals, and that we should seek to move beyond state recognition of citizenship.
While attracted to Ayelet Shachar’s notion of jus nexi, Liew argues that theories of citizenship ought not to be separated from the experiences of stateless people. From her research and discussions with stateless people, she demonstrates that we should value any means by which states will recognize citizenship. She briefly introduces the concept of kinship as a possible basis to expand the concept of jus nexi, though this concept could use further development in future work.
Yet, this brings about a catch-22: Ghost Citizens argues that stateless people in situ ought to be able to gain citizenship based on their deep, social ties rather than through the state – but citizenship without state recognition is, simply stated, statelessness. State recognition as a citizen is essential to a stateless person not because states ought as a normative matter have the prerogative to decide who is a citizen, but because the state also decides who can access government services that make citizenship valuable. States are becoming more, not less, involved in determining who can access necessities like identification, healthcare, and education — and who can avoid criminalization and arbitrary detention.
Ghost Citizen, with its engaging style and insights, leaves one hoping that Liew will further develop the concept of kinship and the tension between social ties and the importance of state recognition in nationality. But Liew need not resolve this paradox; her call for citizenship based on genuine and effective links in no way conflicts with other strategies such as advocating with the state for recognition of individual’s claims to citizenship and pressing for broader inclusion of and access to services for noncitizens.
Jan 20, 2025 Tom SimmonsElder Law
Sharona Hoffman & Cassandra Burke Robertson,
Patient Autonomy, Public Safety, and Drivers with Cognitive Decline, 15
UC Irvine L. Rev. __ (forthcoming, 2025), available at
SSRN (2024).
Sadly, age and cognitive decline often go hand in hand. Approximately one in ten Americans over the age of 65 have dementia. As much as half of individuals with dementia still drive. The statistics on how many additional accidents occur as a result are somewhat murky. Some studies reveal twofold increases in risk of car crashes. But one study actually revealed lower risks among drivers with dementia possibly because that set of persons reduces their driving frequency so much relative to the non-dementia set that the occurrence of accidents drops despite the greater risks associated with cognitive impairments (and also because not everyone with dementia is incapable of driving safely). Still, no one doubts that the risks of driving with dementia are real, yet the law has had very little to say about the matter.
In Patient Autonomy, Public Safety, and Drivers with Cognitive Decline, Professors Hoffman and Robertson assess the predicament of drivers with cognitive impairments. Even individuals with only mild dementia are about ten times more likely to fail an on-the-road driving test than comparators without dementia. Currently, however, only one state requires road re-testing for all drivers above a certain age (75 and above, in Illinois). Simply renewing a driver’s license in-person is too anemic. Across-the-board mandatory road re-testing is too costly. A more thoughtful solution has thus far been elusory, but Hoffman and Robertson articulate and defend a multifaceted framework of enhanced protocols which is both compelling and thought-provoking.
The solution to roads filled with too many drivers with dementia, they explain, may lie in imposing responsibility among stakeholders and encouraging interventions by medical providers. Previous proposed solutions have relied too heavily on a single point of responsibility (whether it be the DMV, the primary treating physician, or family members). Interestingly, the tort system has already provided some degree of relief in the form of potential liability for family members and doctors who fail to intervene. While caretaker liability scares might move the needle a bit, a more comprehensive framework is more likely to significantly curtail crashes caused by cognitively compromised drivers.
Interestingly, the authors also explicate the precise nature of how cognitive impairments affect one’s driving abilities. “This is because driving requires a multitude of cognitive abilities” (P. 6.) First, there is working memory capacity, which involves the retention and manipulation of short-term events. Second, there is time-sharing ability which permits one to perform several tasks simultaneously, rapidly switching attention from one to another. Spatial skills allow a driver to monitor objects such as pedestrians and obstacles and locate them in relation to the driver by using forward vision, side vision, and – in the case of driving, in particular – those pesky rear-facing mirrors. Finally, a driver must blend all these cognitive operations together while abiding by a small constellation of rules of the road and adhering to the goal that will enable her to ultimately arrive at her destination. Toss in verbal commands from a smart phone and distracting conversations from a passenger and even experienced non-impaired drivers must fully engage different areas of their brains to avoid mishaps on the highway.
It shouldn’t be surprising, then, that a number of popular cognitive tests fail to evaluate the particular skills required for driving or their multifaceted combinations. One helpful cognitive test, for example, involves drawing the hands of a clock to reflect a particular time of the day. Others assess verbal cues and word recall. Just because a cognitive test proves to be a helpful diagnostic tool does not mean that it has anything to say about the individual’s ability to drive a car. The precise contours of any given individual’s cognitive decline must be assessed across multiple dimensions. Some of the more appropriate tests, the authors emphasize, are time-consuming and impractical. Still, primary care physicians are at the front-line of the problem and are better equipped to at least refer a patient for further driving assessments, if they could be properly incentivized to do so.
The problem of drivers with dementia is further exacerbated by the cultural/regulatory landscape of our extremely car-centric way of life, especially in low population density areas of the country with few options for mass transit. The authors convincingly demonstrate how the law not only fails to ameliorate the public safety hazard of drivers with cognitive impairments, but actually works to enhance Americans’ dependence on automobile transportation. Citing Gregory Shill and Jesse Singer, they explain how “the legal system isn’t merely responding to personal preference for automobile travel or allocating responsibility for traffic harms caused by individuals – instead, our law and policy create the very context in which those preferences and harms arise” (P. 20.)
Hoffman and Robertson’s full set of recommended protocols – which would involve doctors as well as law enforcement officers, insurance companies, families, and DMVs – cannot be fairly summarized in a jot. For that, a careful study of their readable, lively article is highly recommended.
Cite as: Tom Simmons,
Miss Daisy – Driving?, JOTWELL
(January 20, 2025) (reviewing Sharona Hoffman & Cassandra Burke Robertson,
Patient Autonomy, Public Safety, and Drivers with Cognitive Decline, 15
UC Irvine L. Rev. __ (forthcoming, 2025), available at SSRN (2024)),
https://lex.jotwell.com/miss-daisy-driving/.
Dec 2, 2024 Eric BiberEnvironmental Law
- Heather Payne, Reliance and Reliability, UC Irvine L. Rev. (forthcoming), available at SSRN (January 30, 2024).
- Joshua Macey, Shelley Welton, & Hannah Wiseman, Grid Reliability in the Electric Era 41 Yale J. on Reg. 163 (2024).
Electricity is at the center of decarbonization and climate change policy. With the rise of renewable energy, we have made the most progress in decarbonizing the electricity sector. The primary approach for decarbonizing transportation and buildings is to electrify vehicles, space and water heating, appliances, and cooking. But the race to move more and more of our activities to a clean electric grid also means that the electric grid is all the more important to our day-to-day lives. A power outage today can thus have much more of an impact – not just darkness, but also interruption of communications (by shutting down internet access), the ability to cook and stay warm, and the ability to move to a place with electricity service.
Yet, climate change is increasing the challenges of maintaining a reliable electric grid. Climate change raises the probability and severity of extreme weather events – such as heat waves – that can stress electric grids and heighten the risks of power outages. Moreover, more intermittent renewable energy on the grid itself can pose challenges to grid reliability. Consumers who are concerned about the reliability of the grid may be wary of increasing their reliance on electricity for home appliances and heating. Reliability is therefore a central issue for decarbonization. It is thus heartening to see two recent pieces of legal scholarship that highlight the issue, beginning the process of thinking about how to make progress on reliability as we move towards decarbonization. There are both federal and state-level angles to thinking about reliability, and both are important. Macey, Welton, and Wiseman focus on the federal aspects in their article, while Payne focuses on the state aspects in her article.
Both pieces highlight how current incentives in federal and state law do not encourage incumbent utilities to effectively address reliability issues. The dominant player at the federal level in addressing reliability is the North American Electric Reliability Corporation (NERC) – a non-profit that under federal law has broad powers to set standards for the reliability of the electric grid. However, as the authors note, NERC is primarily controlled by the incumbent electricity utilities, who have most of the voting power in NERC decision-making. The authors make a strong, circumstantial argument that utility dominance of NERC has meant that the NERC standards have not adequately addressed how to ensure the reliability of the electric grid given the increase in renewable energy or the increased likelihood of extreme weather events, and that NERC has disproportionately focused on relying on traditional baseline electricity power plants, such as coal and natural gas, to advance reliability.
At the state level, Payne describes how state public utility commissions and the incumbent utilities they regulate play a key role in determining whether utilities provide adequately reliable service to their customers. Payne makes a persuasive case that state regulators and utilities have been using outdated measures of reliability – measures that focus on average performance, and ignore the extreme outages that can result in some customers living without electricity for extended periods of time. As Payne notes, these extended losses may be particularly damaging to customers, and may disproportionately affect those with fewer resources.
Payne also explains how the traditional rate-making process by many state public utility commissions encourages utilities to invest in large-scale capital projects, like hardening transmission and distribution infrastructure, because the utilities can pass those costs (and associated profits) on to ratepayers. While Payne notes that these investments can provide reliability benefits, she argues that utilities are not incentivized to consider other, potentially cheaper, and more effective options for reliability, such as supporting microgrids and customer energy storage.
These two pieces provide valuable contributions to the scholarly literature by highlighting the importance of reliability in energy and climate change policy, and also by identifying important ways in which our current system is falling short in addressing the problem. As always, identifying solutions is in many ways more difficult than diagnosis, but both pieces at least help us start thinking about possible solutions.
Macey, Welton, and Wiseman propose exploring reforms at NERC that would reduce utility power, or the possibility of greater control over reliability by a publicly accountable government agency, the Federal Energy Regulatory Commission. Payne suggests using different metrics to measure reliability that would provide greater weight for extreme events and long-term outages and raise the possibility of utility liability to customers for damages from outages. All of these suggestions are helpful, though the authors also note significant political feasibility constraints for these options. There is more work to do in the area of reliability, including the role of increased baseload generation from sources such as nuclear and geothermal, but these pieces are an excellent start to a necessary conversation.
Eric Biber,
The Importance of Reliability in an Age of Electrification (December 5, 2024) (reviewing Heather Payne,
Reliance and Reliability,
UC Irvine L. Rev. (forthcoming), available at
SSRN (January 30, 2024); Joshua Macey, Shelley Welton, & Hannah Wiseman,
Grid Reliability in the Electric Era, 41 Yale J. on Reg. 163 (2024)), https://lex.jotwell.com/the-importance-of-reliability-in-an-age-of-electrification/.
Nov 5, 2024 Wendy Anne BachPoverty Law
For those who care about the scope and effectiveness of America’s federal safety net, the last two years have been disappointing. To be frank, it’s always been disappointing, but this time we were naïve enough to get our hopes up. In the wake of the pandemic we saw, and loudly celebrated, significant expansions and reforms. Even more loudly, we touted the harms prevented, and the surely incontrovertible good that resulted for poor families and poor children and called for many of those reforms to become permanent. First among many, in this category, was the brief restructuring and expansion of Child Tax Credit, which significantly broadened both the size and reach of this benefit, reducing child poverty down to historic lows. That change, along with significant expansions to unemployment benefits, Medicaid, and housing and food assistance, dramatically altered and expanded the reach of the federal safety net. There were flaws, mistakes, and holes no doubt, but overall, the extent and effect of assistance reform was breathtaking. Despite the clear positive effect of these policies and despite significant political investment by center/left policy organizations and the Biden administration, in large part attempts to make these changes permanent failed.
The authors of the article celebrated in this jot, Andrew Hammond, Ariel Jurow Kleiman and Gabriel Scheffler, have written previously in 2020 in How the Covid-19 Pandemic Has and Should Reshape the American Safety Net. In their latest piece, the authors engage in a crucial post-mortem analysis, and identify and propose a potentially highly effective solution to a key post-failure question: “the next time there is an opportunity to strengthen anti-poverty programs, what should Congress do?” Their answer, while perhaps not as lofty as the sweeping vision of those who hoped that the pandemic reforms would translate into a far broader and more universally-oriented system of support, provides a workable, effective, responsive and, potentially more resilient set of mechanisms for reform the next time opportunity calls.
In short, the authors propose that when future and sadly inevitable economic crises create an opportunity for safety net reform, legislators should focus on incorporating automatic triggers into relevant legislation. These trigger provisions, principally for these authors, legislative triggers and indexing, are statutory mechanisms that change policy automatically in response to external events. Their great appeal is that, once enacted, they require no congressional action to enact benefit changes or rule adjustments. So, for example, a trigger might automatically expand benefits or lift a restriction (say work requirements) when unemployment goes above a specific rate. It would also, of course, go back down (in the case of a benefit) or be reinstated (in the event of an eligibility rule shift) once the triggering event subsided, but at least triggers could be designed to actually respond at the beginning and last the length of the crisis. Of all the good things one can say about the pandemic era reforms, as the authors show, many failed on both those tests. Benefits did not always arrive soon enough, and they often went away far before the crisis had concluded.
Indexing, while slightly different, automatically links benefit amounts to an external index or rate, adjusting benefit levels to account for the external shift. As the authors point out, indexes are fairly common in the federal safety net (for example SSDI, SSI, SNAP and the EITC are all indexed to inflation) but many other programs that support low-income Americans (for example the SSI asset limit and the Child and Dependent Care Tax Credit amount and phase out) are not.
The authors freely admit that these proposals are not designed to make the safety net more generous per se. Instead, they argue persuasively that triggers and indices can make the safety net “less politicized, more responsive, and more protective of vulnerable Americans.” They carefully analyze a wide range of other, softer legislative triggers (e.g. sunset provisions and prompting legislation) and demonstrate that their proposals are more likely to be effective. They also carefully analyze the problems endemic to cyclical, crisis-induced legislating and easily persuade their readers that their proposals will effectively mitigate harmful policy drift, make the safety net more responsive to non-economic “disasters,” address state level variation, and improve the relationship between data and policy. These authors wield their deep technical expertise to provide a sound roadmap for those working now to craft legislative proposals that might, at a future political moment, more effectively and permanently respond to crisis and make the safety net stronger over time. In an era of disappointment, that is no small thing.
Oct 2, 2024 Juliet StumpfImmigration
“History,” Max Beerbohm said, “does not repeat itself. The historians repeat one another.”
This quote may (or may not) be an entirely accurate reflection of stare decisis, the notion that stability in the law relies on courts faithfully following past precedent. But the quote makes room for the recognition that stare decisis carries racist precedent from centuries past to perpetuate modern systemic racial subordination in modern immigration law. Ahilan Arulanantham’s Reversing Racist Precedent, forthcoming in the Georgetown Law Journal, proposes a systemic disinfectant for this problem: applying constitutional limitations on race-based state action to racist judicial precedent.
Reams of scholarship have excoriated the nineteenth century cases establishing that Congress and the executive branch are largely freed from constitutional fetters when making immigration law and policy. Every immigration law student learns that the extraordinary power that the political branches wield over immigration law is grounded in extraconstitutional sovereignty, bulwarked by considerations of foreign policy and national security. The Supreme Court articulated this power in the 19th century Chinese Exclusion Cases, Chae Chan Ping and Fong Yue Ting.
Reading these cases, students are often struck by the baldness of its anti-Chinese rhetoric. The Court’s considerations of foreign policy and national security arose from its characterization of Chinese American communities within the United States as “vast hordes of Chinese people” whose “crowding in upon us” was a “form [of] aggression and encroachment.” The Court affirmed Congress’s conclusion that “the presence of foreigners of a different race in this country, who will not assimilate with us,” was “dangerous to [the] peace and security” of the United States. This apparent refusal of a racial group to assimilate constituted a national threat despite the absence of “actual hostilities with the nation of which the foreigners are subjects.” The Court’s characterization of these communities as dangerous cells of insidiousness anchored its reasoning that Congress is entirely unfettered when legislating the why or how of exclusion and deportation.
The Chinese Exclusion cases illustrate the obvious: America’s judiciary did not escape our history of open racism. Dusty tomes harboring openly racist opinions fill the shelves of law school libraries. Stare decisis recycles these precedents, Arulanantham points out, handing them across the decades into neutrally-framed modern precedent that continues to rely on them. Merely dropping the open racism of these precedents, he argues, is not sufficient to disinfect modern case law from older precedent that grounded its reasoning explicitly on race. Since that era, modern constitutional law requires scrutiny of state action grounded on intentional racial discrimination.
Arulanantham proposes turning the same constitutional lens on the third branch. He argues that courts must apply the prohibition against state action motivated by racial animus to its own decisions, stripping those infected with racial prejudice of precedential force. This approach, he claims, will go far to address legal rules infected with racial discrimination.
Arulanantham’s approach is both straightforward and innovative. It proposes using constitutional precedent (stare decisis) to scrutinize the doctrine of stare decisis. Beginning as far back as 1873, the Supreme Court has struck down facially neutral rules motivated by discriminatory purpose. Under the modern constitutional formulation, if invidious race discrimination played a role in even facially neutral government action, that action is unlawful unless the government can show it would have made the same decision without discriminatory intent.
How would this work in practice? Arulunantham explains that “when one party relies on a precedent infected by racism, the other should be able to challenge reliance on that precedent as inconsistent with the Constitution’s prohibition against discrimination. Success would result in the court disregarding the precedent.” (P. 444.)
This is not just an innovation in advocacy strategy, nor merely a way to prevent modern court cases from relying on outdated notions of racial inferiority. Arulanantham also holds out the possibility of disrupting structural racism itself. “In a common law system built on stare decisis,” he explains, “rules enacted with invidious racist intent may naturally persist for decades or more, even where the lawyers and judges following them today harbor no present racist intent.” (P. 444.) Without this brake on stare decisis, racially-based rules will continue to influence American jurisprudence. “In other words,” he points out, “absent an exception for racist precedents, stare decisis doctrine itself functions as a structure that perpetuates racism.” (P. 444.)
Arulanantham concludes that judges should not be exempt from constitutional prohibitions against discrimination, noting that other judicial acts such as jury selection and some court orders already receive such scrutiny. Perhaps most famously, Shelley v. Kraemer relied on the notion that judicial decisions constituted state action when they upheld private agreements in the form of racially restrictive covenants.
The article deftly addresses two major objections to the thesis. The first is purely practical. Given how widespread racially discriminatory views were throughout American history, does that mean that every opinion written by a judge with racist views must be discarded? That’s a lot of dusty tomes.
The answer is no. Racist judges, he recognizes, may still produce good legal rules, such as the ancient writ of habeas corpus. “If a judge who happens to harbor racist views issues a decision, but there is no evidence that racism played a role in that decision,” Arulanantham explains, “the fact that the author held racist views” would not doom the precedent. (Pp. 470-471.)
This is consistent with established approaches to assessing discrimination. Discriminatory views are not actionable unless they come to ground and influence the actor’s conduct, though those views can still constitute evidence of a judge’s invidious intent. And the assessment of discrimination would focus not on the whole opinion but on the relevant legal proposition. Thus, a neutral standard of review may survive while a substantive holding driven by racial animus in the same opinion would fall. Even the much-maligned Korematsu case, he observes, produced the modern strict scrutiny rule for assessing racial classifications.
Just as daunting is the towering body of “second-generation cases”—more modern cases that rely on the older explicitly racist cases. This may be the proposal’s greatest obstacle, but it also holds its greatest promise. Arulanantham first recommends an established test in antidiscrimination law, allowing the later case to stand “so long as it provides race-neutral reasons for the rule endorsed in the prior case,” and “the later case would have adopted the rule even as a matter of first impression.” (P. 476.) A more stringent measure would require the second-generation case to also “acknowledge that the prior case was motivated by racial animus and explicitly choose to readopt the rule from the prior case, notwithstanding its racist origins.” (P. 476.) This second approach would preclude use of the modern case unless it had actually confronted the racism in the original decision and adopted the rule for neutral reasons. The acknowledgement ensures disinfection of the case from the racism of the original case.
Arulanantham does not choose between these approaches. His point is that either approach would begin the critical project of disinfecting racist precedent from the law.
I leave it to you to explore how the author applies these ideas to the Chinese Exclusion Cases in immigration law, connecting those earliest cases to modern Supreme Court precedent that supported the Muslim ban, immigration detention, and immigrant admissions. What I liked (lots) about the article was the clean simplicity of its proposition that judges focus the constitutional lens on their own judicial products. And I loved the way the article turns a mirror on stare decisis itself, applying stare decisis to stare decisis, and pushing us to recognize its structural role in structural racism.
Sep 5, 2024 Anita KrishnakumarLegislation
Margaret H. Lemos & Deborah A. Widiss,
The Solicitor General, Consistency, and Credibility, 100
Notre Dame L. Rev. __ (forthcoming, 2024), available at
SSRN (March, 25, 2024).
In The Solicitor General, Consistency, and Credibility, Professors Maggie Lemos and Deborah Widiss provide an eye-opening deep dive into an increasingly common—and oft-criticized—practice engaged in by the Solicitor General’s Office (OSG): rejecting a legal argument that was offered on behalf of the United States in prior litigation. Such flip-flops by the SG’s office have received considerable attention in recent years, as shifts in presidential administrations have produced a number of high-profile reversals that have, at times, garnered open criticism from the U.S. Supreme Court. The conventional wisdom posits that such OSG reversals are undesirable and pose a threat to the SG’s credibility with the Court. Lemos & Widiss seek to turn that wisdom on its head, arguing that there are often good reasons for the OSG to reverse course and urging courts to make a more nuanced assessment of the circumstances surrounding a reversal before deeming it problematic.
In order to better understand how and why the SG’s office engages in litigation flips, the authors compiled an original dataset of 130 cases dating from 1892 to the close of the Court’s 2022 Term that contained such reversals. Their goal was to provide both a descriptive account of litigation flips and a normative argument for why (and when) the Court’s skepticism of such flips is itself problematic. To that end, the authors offer the following taxonomy, or categories, of OSG flips: (1) flips that are due to changes in presidential administration; (2) flips that result from the fact that the government often wears “two hats”–such that it may have taken one position in litigation involving one agency, and a different position in litigation involving a different agency or that it may have been acting as an employer in one lawsuit but as a regulator in a later lawsuit; (3) flips that arise as a result of changed factual or legal developments, including on-the-ground experience with the relevant legal regime, or intervening changes in statutes, regulations, or judicial interpretations; or (4) flips that result simply from “zealous advocacy”—or efforts to obtain the best possible outcome for the client in a particular case.
After detailing the circumstances under which OSG flips typically occur, the authors turn to addressing what precisely courts seem to find so problematic about such flips. In this section, Lemos & Widiss offer several thoughtful theoretical guesses regarding the potential causes for the Justices’ discomfort with OSG flips. These include, for example, (1) the modern Court’s formalist judicial philosophy, which assumes there is a single “correct” answer for each legal question and accordingly views the rejection of one’s former position as duplicitous; as well as (2) the possibility that the Justices view the OSG as a trusted advisor and regard litigation flips as a sign of carelessness or a propensity for error that renders the advisor less trustworthy.
Lemos & Widiss ultimately reject the above reasoning, arguing that judicial disapproval of flips is usually misplaced—and that, in fact, the ideological flips that tend to draw the most criticism often are the ones that are most justified. Specifically, the authors argue that the OSG is a source of important information to the justices—including information about how government programs work in practice. Citing earlier work by David Strauss, they note that the OSG is in a position to bring to the Court’s attention the effects that legal rules and decisions are having on the ground. In other words, the authors suggest that OSG flips need not signal a lack of care or “error,” but could instead reflect attentiveness to changed factual or legal circumstances—and that in so flipping positions, the OSG may be serving the Court well by making the Justices aware of new developments that justify a shift in legal rules.
Professors Lemos & Widiss conclude by noting that litigation reversals by the OSG can—and often do—reflect a principled effort to understand the law in light of current norms and needs. And they urge the Court to take a more nuanced approach to evaluating such reversals, rather than adopt a knee-jerk view that all OSG flips are problematic and should be treated skeptically.
In the end, The Solicitor General, Consistency, and Credibility provides novel insights into how, when, and why OSG flips occur—as well as persuasive arguments about why such flips are not uniformly (or even predominantly) bad. The article is a must-read for anyone who is interested in the OSG and the role it plays in Supreme Court litigation.
Cite as: Anita Krishnakumar,
When the Solicitor General’s Office Flip-Flops, JOTWELL
(September 5, 2024) (reviewing Margaret H. Lemos & Deborah A. Widiss,
The Solicitor General, Consistency, and Credibility, 100
Notre Dame L. Rev. __ (forthcoming, 2024), available at SSRN (March, 25, 2024)),
https://lex.jotwell.com/when-the-solicitor-generals-office-flip-flops/.
Aug 9, 2024 Jaya Ramji-NogalesImmigration
Immigration law as a field of scholarly inquiry is largely critical of the status quo, with much of the literature describing inequities authorized by law and implemented through policy. An increasing number of these works foreground the work that race performs in perpetrating and perpetuating injustice in the immigration system. Yet there remains a profound silence around the question of blackness in migration. Modern Migrations, Black Interrogations begins to dismantle that silence, presenting the reader with “the unasked question” in the field of migration studies. (P.1.) This critique of antiblackness upends existing assumptions and presents important new directions for scholarly inquiry in immigration law.
As the Introduction to this edited volume explains, blackness should be the starting point for any study of mobility. But we cannot just “add blackness and stir”; the editors insist that we must begin by interrogating the antiblackness at the heart of the U.S. immigration system. (P. 11.) It is only through this more profound inquiry that we can begin to understand all borders and bordering processes, and to combat the antiblack violence enabled and obscured by the vast silence that greets questions of blackness and mobility. (Pp. 1, 14).
The critique of antiblackness offers a rich and productive vantage point from which to trouble questions of mobility and borders. As a “constantly regenerating and mutating feature of the present-day organization of social relations,” (P. 5) antiblackness is a necessary foundation for immigration scholars. One important aspect of this theoretical perspective is the understanding of societal progress as “movement towards a world expunged of blackness” (P. 6.) Blackness is defined in opposition, in “a painful, antithetical relationship,” to European modernity. (P. 65.) When it comes to immigration, blackness is situated outside the immigrant/citizen frame, beyond the path of progress toward citizenship. (P. 64.) This presents a vexing problem for the modern liberal state; while Blacks are viewed as unable to assimilate, at the same time, they cannot be deported. (P. 71.) Blackness can, however, be deployed as a “racial border to police other racialized groups,” with assimilation measured as one’s distance from blackness (Pp. 16-17.)
An antiblackness framing also offers a new lens on the history of U.S. immigration law. In one example, the editors offer connections between the 1798 Alien and Sedition Acts and fears arising from Haitian revolution and potential support for slave revolt in the United States. (Pp. 8-9.) The motivation underlying these Acts, which were the first federal restrictions on immigration, have commonly been depicted as unrelated to race in that they limited the admission of French migrants. This case study presents just one example of how an antiblackness lens can open up new understandings of the history of immigration restrictionism.
In addition to the critical frame of antiblackness, the editors offer a far more complete understanding of Black mobility than is generally presented in the literature. They persuade the reader that blackness must be a starting point for analyzing bordering processes and understanding relevant concepts such as inclusion and exclusion. (P. 17.) Black mobility is a story, the editors remind us, of territorial alienation and forced hypermobility. (Pp. 80-81.) Blackness is “inextricably bound up with the ruptures that produce [the] radically depersonalized placeless condition,” without an understanding of which we cannot begin to comprehend, let alone theorize, migration. (P. 80.) Migration has been a “series of traumatic displacements” that prevent Black people from “experiencing time and occupying space on their own terms.” (P. 81.) This means that the only way out is “a flight from society itself” by “creating a rupture with a given structure of social relations.” (P. 92.) In other words, the only solutions are radical ones; tinkering with the status quo will simply reproduce antiblackness.
The book also reminds us that Black mobility is a story of resistance. The persistent mobility of Black people is nothing short of astonishing given the powerful and pervasive efforts to control Black movement. Unauthorized movement has been a potent form of resistance to enslavement and Jim Crow. (P. 10.) This Black mobility has consistently been received as a threat to the border itself and ultimately, “civilization.” (P. 16.)
By this point, it should not be hard for the reader to discern how the antiblackness critique presented by the book challenges the received wisdom on migration. The editors remind us that freedom of movement presupposes Black captivity, and that Black mobility is the “experience of being radically uprooted.” (P. 66.) This recognition provides a more complete picture of all borders, namely “the understanding that, in order for migration to be a decision, the right not to migrate must also be a valid option.” (P 12.) The book offers profound resistance to what has been labeled the “mobility bias” and the linear progress narrative of migration. (P. 13.) It is also a forceful reminder of the importance of interrogating silences around blackness and mobility, and of the powerful fruits of that inquiry.
Jul 19, 2024 Brian FarkasArbitration
If you ask most practitioners to describe the rules of evidence in arbitration, they’re likely to respond with three words: the Wild West. Recent scholarship by Henry Zhuhao Wang peeks into the black box of arbitral hearings to expand—and complicate—our understanding of this untamed landscape.
When I teach arbitration, I bring a prop to one of the class sessions: an evidence textbook. I ask how many have taken a course on evidence. About three-quarters of the students’ hands shoot up. I ask them to look at the book as I hold it above my head. Notice its thickness. Its height. Its weight. The hard cover and thin pages. I ask them to remember the feeling of schlepping it to class. I ask them to remember the rules. The exceptions to the rules. The exceptions to the exceptions.
Then, I project onto the screen Rule 34 of the American Arbitration Association’s Commercial Arbitration Rules about “Evidence.” The entire Rule is 159 words. In relevant part, it says: “The parties may offer such evidence as is relevant and material to the dispute and shall produce such evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. Conformity to legal rules of evidence shall not be necessary.” It has only a couple cautions: “The arbitrator shall take into account applicable principles of legal privilege, such as those involving the confidentiality of communications between a lawyer and client.” But generally, admissibility is at the discretion of the arbitration: “The arbitrator shall determine the admissibility, relevance, and materiality of the evidence offered and may exclude evidence deemed by the arbitrator to be cumulative or irrelevant.”
Students are amazed. The clarity! The simplicity! Their semester-long evidence course is rendered seemingly irrelevant. Evidentiary decisions are entirely discretionary and virtually unappealable. Many arbitrators disregard traditional courtroom rules. Often, arbitrators will admit all evidence that the parties offer, saying that they will simply “take it for whatever it’s worth.”
Can all that really be true? Should it really be true? Wang observes two contradictory realities in the way that evidence is handled in arbitration.
On one hand, arbitration is an alternative to court. It prioritizes efficiency. Arbitrators are sometimes non-lawyers who adjudicate disputes based on industry custom or professional expertise. Some litigants choose arbitration specifically because it eschews legal formalism, including strict adherence to those pesky Federal Rules of Evidence.
On the other hand, litigants and lawyers come to arbitration with vastly differing expectations about the appropriate level of legal formalism. Some expect arbitrators to “view the rules of evidence as presumptively authoritative” as if it were a courtroom proceeding. Others expect that arbitrators will be “open to alternative methods for presenting evidence that would not be permitted in court.” Moreover, parties and lawyers may come from different jurisdictions with their own unique evidentiary traditions distinct from the Federal Rules.
To make matters even more complicated, many (though not all) arbitrations are run through arbitral providers. Examples include the American Arbitration Association, JAMS, or the International Chamber of Commerce. These providers maintain their own rules governing the conduct of proceedings. Some organizations, like the International Bar Association, offer comprehensive evidentiary rules. But many offer fairly loose rules when it comes to evidence, giving total discretion to arbitrators. The American Arbitration Association’s rule, quoted above, is one such example.
In short, evidence in arbitration is all over the map. From the practitioner’s standpoint, it can be difficult or impossible to predict an arbitrator’s rulings. Against this backdrop, Wang suggests that arbitration could benefit from far greater evidentiary clarity and consistency. After all, arbitration has become central to our civil justice system. Its increase in popularity has coincided with a dramatic decline in civil jury trials. Countless businesses and individuals depend on arbitration to provide fair and predictable adjudications. Perhaps the almost-mischievous informality of evidentiary rules in arbitration is no longer appropriate given arbitration’s primary place in our legal system. Maybe the time has come for more mature standards.
Wang’s view is that arbitration’s traditional “let-it-all-in approach” risk serious pitfalls. It opens the door to the consideration of all sorts of unreliable evidence. Wang identifies a litany of materials that are regularly admitted into arbitral hearings “for what they’re worth,” including: affidavits of witnesses not subject to cross-examination; testimony from junk scientists offering unreliable expert opinions; hearsay statements; character evidence; and unauthenticated documents and photographs (particularly concerning in the age of deepfakes and artificial intelligence). After all, there’s a reason that these sorts of sketchy materials are traditionally precluded from the courtroom: they can’t be trusted.
Wang has some ideas. A few examples of his proposals:
- Drafting fulsome hearsay rules, including a checklist to give arbitrators a better sense of when evidence (such as documents) should require a testifying witness to authenticate.
- More specific prohibitions on evidence that would implicate attorney-client privilege, work product protections, or illegally obtained materials.
- Adopting clear burdens of proof required to establish certain claims (e.g., preponderance of the evidence, clear and convincing, etc.).
Many arbitration purists may dislike Wang’s approach. For those purists, the “legalizing” of arbitration is precisely what should be avoided. They may argue that such a cure is worse than the disease because it undermines the whole purpose of alternative dispute resolution: escaping courtroom formalism. But even the purists must contend with Wang’s assessment of the field at a crossroads. As arbitration becomes ubiquitous, can it serve as a reliable alternative to litigation if its evidentiary rules are so… unreliable? It’s a question worth asking.
Cite as: Brian Farkas,
Evidence in Arbitration: Should the Wild West be Tamed?, JOTWELL
(July 19, 2024) (reviewing
Henry Zhuhao Wang,
Alternative Evidence Rules for Arbitration, 24
Nev. L.J. 73 (2024).
Henry Zhuhao Wang,
One Size Does Not Fit All: Alternatives to the Federal Rules of Evidence, 76
Vand. L. Rev. 1709 (2023).
),
https://lex.jotwell.com/evidence-in-arbitration-should-the-wild-west-be-tamed/.
Jul 11, 2024 Caprice RobertsRemedies
Monica Haymond,
Intervention and Universal Remedies,
91 U. Chi. L. Rev. __ (forthcoming, 2024), available at
SSRN (Feb. 1, 2024).
National injunction litigation in public law cases is prevalent, controversial, and important. Universal remedies such as national injunctions are increasingly prominent in high-profile cases. The availability and shape of such remedies always matter to the parties, but the effect on nonparties is another key consideration. Much scholarly attention exists on the efficacy of such relief, but gaps in the literature remain. Professor Haymond fills a gap on the unexpected role of intervenors on these bold remedies. Her recent work, Intervention and Universal Remedies, offers provocative, detailed data that demonstrates significant consequences of intervenors on litigation seeking national injunctions. Ultimately, this rigorous examination reveals how the treatment of intervenors has immense impact and warrants deeper attention.
Professor Haymond examines over 500 national injunction cases to reveal that an unexpected, outsider participant has an outsized effect on outcomes. Her study uncovers that intervention in such suits is “commonly sought, often contested, unpredictably obtained, and enormously consequential.” (P. 6.) Professor Haymond poses an important question: What if the federal rules governing such high-stakes litigation no longer protect the values they were designed to serve? The Federal Rule of Civil Procedure covering intervenors is Rule 24, and its purpose is threefold: “to secure a meaningful opportunity for affected nonparties to participate in cases affecting their interests, to enhance judicial efficiency, and to safeguard some measure of party control.” (P. 6.) Yet Professor Haymond concludes that intervention practice in national injunction cases effectively does not advance those values.
This article makes many excellent contributions. For example, it shows the blurred analyses between intervention as-of-right versus permissively, and it examines the contours of an intervenor’s right to participate meaningfully. It starts with effective presentation of intervenor interests and perceiving that the judge heard the interests. More specifically, it includes that the intervenor, unlike amici, can advance evidence, make arguments, participate in settlement talks, and appeal adverse rulings. The article laments that judges have broad discretion in determining whether an intervenor is permissive or of right as well as the nature and scope of participation.
Professor Haymond emphasizes three attributes that are relevant to Rule 24’s function that heighten the import of intervenor participation: “(1) the universal nature of the remedy affects numerous interests not captured by the litigating parties; (2) these cases are often high-profile and involve politically salient national rules and policies; and (3) the remedy often forecloses other types of participation—either in other lawsuits or in the political process.” (P. 29.) Of the 508 cases that Professor Haymond analyzes, thirty-four percent (173) of those cases involved at least one motion by an intervenor. In two-thirds of those cases, the judge granted the motion to at least one party, and judges denied the motion to at least one party in a third of the cases. The article lists all the cases in an Appendix. According to Professor Haymond, this data reveals the surprising impact of intervention on the litigation of national injunction cases.
Intervenors in national injunction cases have six primary motivations, in Professor Hammond’s opinion. First, intervenors commonly seek to offer new evidence to support a substantive claim or justify a proposed scope of remedy. Examples abound including the multi-suit challenge to former President Trump’s travel ban and the multi-state challenge to former President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents. Second, intervenors frequently propel supplemental legal arguments for judicial consideration. Third, though less often, intervenors attempt to add new claims against one of the original parties. Professor Haymond provides a salient example of a transgender student who intervened in Highland Local School District v. United States Department of Education to defend the Department of Education’s interpretation of “sex” in Title IX to include gender identity and to advance a constitutional and Title IX challenge against the district.
As a fourth overarching category, Professor Haymond suggests that intervenors often seek to provide a new perspective or narrative framing to national injunction cases. For this classification, the article offers DACA suits on immigration policy where intervenors wish to embody the perspective of young, affected immigrants. Other examples range from ACA challenges to exemptions for religious schools from LGBTQ anti-discrimination regulations. For the fifth class, the article suggests national injunction cases in which intervenors, such as in the travel ban cases, constitute a new injured plaintiff to satisfy Article III standing requirement of “one-good plaintiff.” (P. 38.)
In the final sixth grouping, Professor Haymond explores intervenors who seek to prevent the original parties from dismantling the case via settlement or declining an appeal from an adverse ruling. Again, Professor Haymond culls through the cases to pinpoint examples of this phenomenon in action. As the article uncovers, this tactic often occurs when the federal government makes a strategic determination to alter its policy such as regarding the definition of “waters of the United States.” (P. 39.) Intervenors also arise when the federal government relinquishes its defense of a challenged policy or rule such as the FDA’s requirements for in-person dissemination of Mifepristone. As Professor Haymond explains such intervenors often ground their participation as essential to the court’s review of troubling government policies or litigation tactics. This phenomenon, as described by some intervenors, centers on the strategy of certain federal agencies to “sue and settle” in, for example, the Public Charge cases and challenges to limits on immigration during the Covid-19 crisis. (P. 40–41.)
The motivations of intervenors paint a clear picture, but as Professor Haymond demonstrates, judicial decisions about intervenors are unpredictable and the outcomes inconsistent. Professor Haymond suggests that the negative conditions may be even worse given that the data represents only a relatively small portion of rulings where judges have offered reasons for granting or denying motions to intervene. These charges merit examination given just how consequential intervention decisions are. The author admits that common intervenor effects on arguments and evidence are mild, but a more troubling consequence arises “when intervenors force cases to proceed past when the original parties would have ended the suit.” (P. 44.) A quintessential example that the article discusses is California v. Texas, in which the intervenors were the sole party to appeal a court determination on the merits of the Affordable Care Act. Other examples involved policy determinations of the EPA and the FDA. The author acknowledges that not all intervenors are the same, but intervenors as the lone appealers pose normative considerations including the goals of Rule 24 and, more broadly, the proper role of federal courts in prominent, politically volatile cases.
Professor Haymond raises troubling concerns regarding the undermining of procedural purposes, decreasing judicial efficiencies, and exacerbating diminished party control. According to the article, not only do the rules not serve their intended goals, but with respect to intervenors, the relevant rule creates additional negative implications. These concerns include broad judicial discretion to determine whether the case proceeds as well as increased judicial involvement in politically infused cases. It undermines judicial impartiality. As noted earlier, an unusual aspect of the latter concern is that intervenors may cause the litigation to survive after the main parties disappear, drop their appeal, or settle. This phenomenon occurs despite intervenors themselves lacking standing. As Professor Haymond warns, such breakdowns may embody the canary in the coal mine about larger, structural deficiencies and systemic problems.
Fortunately, the article includes and assesses recommendations including modifying the presumption of adequate representation either via doctrinal adjustments or rulemaking by the Federal Civil Rules Advisory Committee. Other suggestions focus on remedial intervention such as judicial narrowing of intervention limited to the scope of the remedy, but notes the better course may be the promulgation of a new rule explicitly permitting remedial intervention. Given the high stakes, Professor Haymond recommends that judges broadly grant remedial intervention on the efficacy of national injunctions. Though Professor Haymond recognizes the potential costs, the article provides a model for remedial intervention attainable in fast-moving litigation—the court in State of Louisiana v. Centers for Disease Control denied an intervention motion but swiftly permitted prospective intervenors participation rights including oral argument on the scope of injunctive relief. With such reforms, Professor Haymond convincingly argues that the rules of civil procedure will better serve relevant goals and better equip federal judges with helpful tools for exercising more principled discretion in consequential decisions regarding intervenors and universal remedies.
