LEX Magazine, Issue 5

Race, Infrastructure and the Law

Aziz Huq on Collapse of Constitutional Remedies Law Degrees

THE MAGAZINE OF DREXEL UNIVERSITY THOMAS R. KLINE SCHOOL OF LAW

Danielle Conway on Antiracism

Dana Remus on Taking Chances Kalhan on Immigration and the Judiciary

Rights Without Remedies: A Q & A with Author Aziz Z. Huq

At the Crossroads of Justice: Race, Infrastructure and the Law

Wendy Gibbons

The Law Is Too Important to Be Left to the Lawyers: The Return of the BA in Law

Annalisa Goodmann

Judicial Illiberalism: How Captured Courts Are Entrenching Trump-Era Policies

Anil Kalhan

Danielle M. Conway

Peeking into the Black Box: Exposing Barriers to Arbitrator Diversity

Nancy J. Waters Building an Antiracist Law School

Dean’s Welcome

Infrastructure has been a much-discussed topic over the past decade or so, but these discussions rarely connect infrastructure and the law or take into account the legal aspects of infrastructure or the infrastructural aspects of the law. But the two are, in fact, tightly entwined.

Infrastructural policies express societal priorities. From when to repair a bridge to where to site a highway, from how much to spend on a new school to how urgently to fix a lead-tainted municipal water supply—infrastruc tural decisions tell us both what matters to a society and who has power within that society. Is it getting workers to the office quickly? Is it limiting damage to the environ ment? Is it education, health care, recreation, the arts? Is it safety, efficiency, aesthetics? These choices are justice choices, and justice is ground zero for the law.

The injustice of racism persists for reasons beyond individual prejudice—it’s built into social, economic and political infrastructures. And it’s expressed by the pres ence of toxic waste sites and the absence of trees, parks, grocery stores and transit hubs. Conversely, efforts to address racial injustice by improving the law depend on legal infrastructures, the formal and informal rules and elaborate procedures by which we create and enforce laws and mete out justice, from legislatures to courts to police stations—to law schools. Our democracy rests on a massive legal infrastructure—and, as the last few years have shown, the rebar is beginning to bend.

This nexus between infrastructure and the law seemed ripe for investigating; thus, the theme of this fifth issue of the Drexel University Kline School of Law’s magazine, LEX : Infrastructures.

In the lead-off article, Wendy Gibbons explores infra structural justice writ large, with a focus on race. Most readers will be aware that Black, Latinx, Indigenous and immigrant communities bear a heavier burden when it comes to the health impacts of pollution, for example. But, as Gibbons reports, the impact of infrastructural injustice goes far beyond the realm of toxic torts, encompassing everything from potholes to broadband to municipal sewer liens. Gibbons focuses on what activist lawyers and law students can do to help these communities secure infra structural justice.

The United States Constitution, of course, provides the fundamental infrastructure of this republic. The foun dation has cracks, and they seem to be getting bigger—or maybe we’re just noticing them more readily. In this issue’s

interview, Nancy Waters spoke with constitutional scholar Aziz Huq of the University of Chicago to discuss his most recent book, The Collapse of Constitutional Remedies. The Constitution’s guarantees of individual rights mean little when violations can’t be remedied, which Huq reports is too often true, and he traces the problem back to the origins of our system.

This issue also features a look at the infrastructure of legal education. The juris doctor degree that we all know and love, Analisa Goodman reports, is a relatively modern invention. Law schools once routinely educated undergraduates—and the undergrads are back! Goodman traces the rise of the bachelor’s degree in law at law schools including here at Kline, where our new undergraduate law major launches this term.

Also in this issue, Kline Law Professor Anil Kalhan takes a deep dive into the now twisted infrastructure of a once humane and stable U.S. immigration system. Kalhan argues that Donald Trump blew the house down, Joe Biden has struggled to pick up the sticks, but Trump-appointed judges won’t allow him to exercise his executive authority to rebuild the system.

In the days following George Floyd’s murder, Dean Danielle Conway reached out to a quartet of fellow Black women law deans. First, they commiserated. Then they got to work dismantling structural racism by focusing on law schools—the institutions they understand so well. The ambitious AALS Law Deans Antiracist Clearinghouse Project was the result of their efforts. In her essay, Conway documents the arc of this pathbreaking project.

Our last feature article looks at a less discussed ele ment of our legal infrastructure: mandatory arbitration.

FINRA is working to diversify arbitrator pools for investor disputes, and Kline Professor Nicole Iannarone set out to test the success of these interventions. Along the way, she enlisted students in her research, creating a different kind of summer associate experience and helping her students salvage the otherwise lost pandemic summer of 2020.

Law schools play an important role in examining and refreshing our nation’s legal infrastructure. I hope this issue of L EX documents and advances that project. If you were activated, intrigued or even irritated by these articles, I’d love to hear about it. And I always heartily welcome any and all suggestions. ■

At the Crossroads of Justice

By Wendy Gibbons

Race, Infrastructure and the Law

Black, Latinx, Indigenous and immigrant communities in the U.S. suffer disproportionately from decaying and inadequate infrastructure and bear a heavier burden from pollution and the impacts of climate change. What can be done to address infrastructural injustice?

Communities of color have long contended with per vasive risks originating in the places they live, work, learn and play. Black, Latinx and Indigenous people suffer from higher rates of asthma and heart disease as a result of air pollution; they are more likely to die as pedestrians because of inadequate sidewalks and public transit; and they are far more likely to die in fires in overcrowded build ings that don’t meet fire safety standards. These threats represent just a handful of the deadly impacts of infrastruc tural injustice.

“The way that [people] breathe the air every day, it’s an integral part of racism because you can’t see it, but people are dying,” Brown said. She plans to put her degree from the Drexel Kline School of Law as well her talents for writing and advocacy to work at the intersection of racial and envi ronmental injustice. Of this intersection, she said, “I’m so pleased that more people are talking about it now.”

Infrastructural justice is a relatively new concept. It encompasses not only cases in which the harm of pollution falls disproportionately on some communities but also the unfair distribution of public infrastructure benefits, such as access to public transit, recreational facilities, high speed internet and good infrastructure jobs. From safe drinking water to clean air, dependable public transpor tation and healthy schools, both the benefits and the costs of everything we build are unfairly distributed, according to those who study these dynamics.

Algernon Austin is the director for race and economic justice at the Center for Economic and Policy Research (CEPR) in Washington, D.C. “These are,” he explained, “in many cases, life and death issues. Infrastructure writ large is stratified by class and race.”

Environmental justice is simply the best-known face of infrastructural justice—as a movement, it has been around since before Brielle Brown was born. In 1982, the NAACP led six weeks of protest in the majority Black community of Afton, N.C., after the state dumped PCB-laced soil there. More than 500 protestors were arrested, including Congressional Representative Walter Fauntroy and long-time civil rights activist Benjamin Chavis. Protestors argued that their com munity had been targeted for toxic waste disposal precisely because it was a majority Black community whose mem bers lacked political power. Then, in 1987, the United Church of Christ published a seminal report highlighting the fact that three out of five Black and Hispanic citizens in the U.S. lived in close proximity to hazardous waste sites.

In 2021, Austin authored a report investigating the links between infrastructure and race for the NAACP ’s

Thurgood Marshall Institute. The report highlights both the vast scope of the problem as well as the importance of framing the solution as an investment, not an expense. Rectifying these infrastructural inequities could cost as much as $2.59 trillion, which, Austin argues, is far less than the billions these conditions cost the country in reduced exports and trillions in reduced GDP and lost wages from unemployment and underemployment.

The American Society of Civil Engineers ( ASCE ) defines “infrastructure” more broadly than the roads and bridges that come to mind when most people hear the term. Every four years, the society produces a national report card that grades the country on 17 categories of basic ser vices, from railways to hazardous waste to schools and— most recently—broadband.

In 2021, the ASCE awarded U.S. infrastructure an overall C minus, with a disproportionate number of

Brielle Brown, JD ’22, plans to work on environmental justice issues.

Brielle Brown, JD ’22, has pursued a career in law because she wants to save lives. Growing up Black in Philadelphia, she became all too aware of the deadly effects of racism in the form, for example, of lethal police force. The people she hopes to protect, however, face even more inescapable if far less well-known threats: the daily risks of breathing, commuting and inhabiting while Black.

shortcomings found in communities of color. Seventyfour percent of the 200 people who died in Texas in 2021 when the electrical grid shut down following a major winter storm were people of color. And in Mississippi, according to the ASCE report, 43 percent of the roads are in “poor con dition,” contributing to one of the highest roadway fatality rates in the nation. Poorly maintained roads also increase the likelihood of vehicular damage. In Southaven-DeSoto County, Mississippi, for example, in 2019 the average annual vehicle repair cost of $1,870 represented six per cent of the annual median income for Black Mississippi residents, putting repairs out of reach for many residents and further challenging their ability to get to work, to the doctor or to a polling place.

The report card also cites the 400-plus Mississippi bridges that have been closed because they are unsafe, the Louisiana levees at substantial risk of failure and

Algernon Austin directs the Race and Economic Justice program at the Center for Economic and Policy Research in Washington, D.C.

The 17 Major Infrastructure Categories as defined by the American Society of Civil Engineers

Black, Latinx and Indigenous people suffer from higher rates of asthma and heart disease as a result of air pollution, and they are more likely to die as pedestrians because of inadequate sidewalks and public transit.

New York City’s estimated $45 billion public housing repair-and-maintenance backlog.

According to a 2018 Environmental Protection Agency ( EPA ) study, Black people are exposed to 1.5 times the amount of sooty particulates produced by burning fossil fuels for energy and transportation as the general popu lation. Notably, this study controlled for income, finding that the disparity was significantly larger for race than for income. Particulate exposure increases the risk of preterm births, asthma, cancer and heart disease.

For Indigenous communities, Austin said, climate change threatens cultural devastation. In states like Louisiana, Florida and Washington—and especially in Alaska—many tribes may soon be forced to move to avoid rising seas. Some 31 Native Alaskan communities face imminent displacement, and four already are in the process of moving, according to a 2009 report by the

Drinking Water Energy

Hazardous Waste Ports

LeveesInland Waterways

Public Parks Rail

Roads Schools Solid Waste

Stormwater Transit Wastewater

Bridges

Dams

Aviation

U.S. Government Accountability Office. And the altered migration patterns of the animals that Alaskan natives have traditionally hunted, such as bearded seals and whales, as well as shoreline erosion from thawing per mafrost and storm surge threaten their traditional ways of life.

Austin uses the parable of the four blind men and the elephant to illustrate why infrastructural injustice contin ues to plague so many communities of color. Infrastructure forms a foundational part of our lives, he explained, but we only see what is right in front of us, limiting our under standing of the big picture. To maintain its position as a world-leading, prosperous democracy, the United States, he wrote, must use its resources strategically to remedy longstanding racial inequities, rather than allowing huge sectors of our economy to be dragged down along with the well-being of millions of Americans.

Blocked Roads to Justice

The Grand Calumet River in Illinois is one of the nation’s most polluted rivers.

Kline Law Professor Alex Geisinger has taught environ mental law for more than 20 years.

Lawyers, activists and policy makers who seek to remedy infrastructural injustice confront significant hurdles. Alex Geisinger is a professor at the Kline School of Law and has taught environmental law for more than two decades. Alongside some of his law students, he has gone up against such powerful corporations as U.S. Steel. In 1997, he and his students filed a “notice of intent” to sue that company over its potential contamination of the Calumet River in Illinois. Eventually, the EPA got involved and reached agreement with U.S. Steel to develop a corrective action program. Geisinger called the decision to take on one of the largest steel producers in the world “a deep breath moment,” but he has taken a deep breath and dived in a number of times throughout his legal career.

Typically, he explained, the first major challenge for grassroots organizations suing for redress in an environ mental case is also the most obvious one: marshalling the resources to take on their more well-funded corporate adversaries. Plaintiffs, Geisinger said, often need to build their own infrastructure of “people to support the legal work.” Consequently, he continued, “change tends to hap pen glacially.”

For communities of color, however, the relative disadvantages in wealth and power are even more stark. Moreover, in environmental cases, advocates have found their access to the courtroom blocked by judicial prece dent. Plaintiffs who attempt due process or discrimination claims under Civil Rights laws such as the Equal Protection Clause of the 14th Amendment face significant challenges under case law, Geisinger explained.

In the 1977 case Village of Arlington Heights v. Metropolitan Housing Development Corp, the United States Supreme Court upheld a zoning ordinance that prevented construction of racially and economically diverse housing

outside Chicago. The court’s majority opinion stated that because states and municipalities must balance numerous competing factors in siting decisions, the courts should only interfere if plaintiffs can show that racial bias was a motivating factor. Individuals seeking to prevent permit ting of polluting facilities near their homes, for example, must prove not just that the facility will disproportionately affect their community but also that the government’s decision to issue the permit was racially motivated.

Case law also limits lawsuits under Title VI of the 1964 Civil Rights Act, which outlaws discrimination based on race, color, religion, sex and national origin. In the land mark 2001 Alexander v. Sandoval case, the U.S. Supreme Court ruled for the Alabama Department of Public Safety over Martha Sandoval. Sandoval, a Hispanic woman, had filed a class action suit under section 602 of Title VI alleging that the department’s policy of providing driver’s permit tests exclusively in English violated the act’s prohibition against using federal funds to discriminate on the basis of national origin.

Justice Antonin Scalia, writing for the majority, stated that Section 601 of Title VI prohibits only intentional dis crimination and not disparate impacts occurring under state laws. He also specified that Section 602 does not include a right of private action that would entitle individuals to sue under Title VI. Although Alexander v. Sandoval was not an environmental case, it nonetheless “ripped the racial side of environmental justice regulations out from under the lawyers,” said Geisinger. “It laid that initial landscape.”

Additional federal court decisions have barred pri vate individuals from bringing disparate impact claims under Section 1983 of the Fourteenth Amendment, which prohibits the use of state law to deprive an individual of rights guaranteed under the U.S. Constitution. In South Camden Citizens in Action v. New Jersey Department of Environmental Protection, the Court barred private indi viduals from bringing disparate impact claims, and, in the 2002 Gonzaga v. Doe decision, it required Congress to clearly and unambiguously specify a right of private action for disparate impact claims in future legislation.

With most environmental justice litigation neu tralized by case law, administrative complaints offer an alternative. The federal Environmental Protection Agency (EPA) fields the majority of these complaints, but a 2016 report by the United States Commission on Civil Rights described the EPA’s Office of Civil Rights’ handling of such cases as “pathetic.” Between 1993 and 2015, not one of almost 300 complaints earned a formal finding of discrimination, and the commission could not identify a single case in which the office withdrew funding from entities accused of discriminating against low-income communities. For example, in a 2013 case, a local gov ernment successfully ignored the potential effects of a slaughterhouse on nearby homes owned or rented by low-income seniors and Black and Hispanic people. The 2016 report recommended that Congress increase funding for the EPA’s Office of Civil Rights specifically to increase staffing levels, so that the agency could better meet its own deadlines and improve its poor record of handling citizen complaint.

Recently, environmental justice advocates have had some success making the argument that some communi ties have borne disproportionate burdens from polluting or otherwise harmful projects and that these “cumulative impacts” should be considered in siting new projects. For example, in late 2020, residents of Chicago’s Southeast Side filed a complaint with HUD and a Title VI complaint with the EPA over the city’s proposed relocation of a metal recy cling facility near a park and high school in their neighbor hood. Activists even resorted to a 30-day hunger strike to get the city’s attention, finally succeeding in convincing the Chicago Department of Public Health to leave the per mit pending until the city, assisted by the EPA , completes a health impacts analysis of the neighborhood.

Where the federal government falls short, states rep resent another front in the battle. California, for example, has developed a screening tool to help identify commu nities facing multiple environmental burdens. And in September 2020, New Jersey community advocacy efforts drove passage of the nation’s first comprehensive cumula tive impacts law, which uses applications for new permits or permit renewals as a gatekeeping step for managing environmental impacts on overburdened communities.

The state is developing a screening tool similar to the one used in California to identify these communities, and the permitting process requires that applicants in those communities show that they will either produce no new

With most environmental justice litigation neutralized by case law, administrative complaints offer an alternative.

pollution, or that they can offset any pollution they do pro duce to reduce the existing overall pollution levels. In March 2021, Massachusetts followed suit. “For me, the real prov ing grounds… is what happens with these states that have adopted these cumulative impacts laws,” Geisinger said.

The Fight for Essential Services

Shelter is an essential—perhaps the most essential—component of every society’s infrastructure. Long before there were roads, bridges and dams, there were caves, tents and huts. The Federal Fair Housing Act of 1968 was created to combat the inequities that have long plagued the American housing market by prohibiting discrimination by land lords, real estate companies and lending institutions. Lawsuits and administrative complaints brought to the U.S. Department of Housing and Urban Development (HUD) have helped combat discriminatory housing policies, but the significant segregation of minority communities in urban food deserts and industrial wastelands persists.

Kline Law professor Richard Frankel directs the school’s clinical and experiential education programs, which give law students opportunities to advocate on behalf of underserved communities. “Housing, to me, is such a big issue,” he said, citing the January 2022 public housing fire in Philadelphia that killed 13 people, poi gnantly illustrating the intersection between poverty, infrastructure, race—and life and death. “People died,” Frankel said, “because the housing was overcrowded.”

Access to clean running water also depends on infra structure, and here also, communities of color confront greater burdens and risks. In 2016, research by students from Kline’s Andy and Gwen Stern Community Lawyering Clinic, for example, described water shutoffs in several predominantly Black West Philadelphia communities that have forced residents to lug jugs of water home from the store to meet their basic needs.

According to Algernon Austin of the CEPR , water affordability is a particular problem in racially diverse

areas of the United States. A 2019 report by the Thurgood Marshall Institute (TMI) examining race and water afford ability stated that in cities such as Cleveland, Baltimore and Flint water liens have disproportionally affected Black residents, leaving them not just thirsty but also at greater risk of getting evicted, losing custody of their chil dren and even facing criminal charges. In Baltimore, for example, residents with unpaid water bills as low as $350 have had liens placed on their homes, a policy that has contributed to decreasing homeownership in the majority Black city.

According to the TMI report, “Municipal discrimi nation in the provision of water services runs deep.” The report’s authors argue that such local policy changes as banning lien sales, water service disconnections and the privatization of essential public services such as running water, would limit the need for litigation to resolve these infrastructural inequities.

In Philadelphia, such policy changes have made a difference. Following a coordinated campaign led by Community Legal Services of Philadelphia (CLS) in 2016, the city established several water affordability plans for protecting low-income homeowners from water shutoffs. In coordination with that effort, Kline’s Stern Clinic worked to resolve a problem many of its clients faced: lack of run ning water in homes with title issues, explained Rachel López, the clinic’s director. “Partnering with community members and other stakeholders,” she said, “we suc ceeded in compelling the Philadelphia Water Department to change the outdated policies that prevented residents from addressing back payments on their water bills while they were trying to clear title to their homes.”

“We also recently learned,” she continued, “that our advocacy was instrumental in the Department of Health’s push to have a moratorium on water shutoffs during the pandemic and reconnect those who were already cut off.”

To the ordinary person, infrastructure is nearly syn onymous with transportation, and large federal infrastruc ture bills are often known as “Highway Bills.” Kate Lowe, an associate professor of urban planning at the University of Illinois, Chicago, has researched transportation inequi ties and policies to address them. The 2021 Infrastructure

Shelter is an essential— perhaps the most essential— component of every society’s infrastructure. Long before there were roads, bridges and dams, there were caves, tents and huts.

Diana Silva, JD ’11, practices envi ronmental law in Philadelphia.

Investment and Jobs Act—otherwise known as the “Infrastructure Bill”—includes a “Justice40” initiative requiring federal agencies to work with states and munic ipalities to deliver at least 40 percent of new benefits in climate and clean energy to disadvantaged communi ties, and these benefits often take the form of transporta tion-related projects. The policy is already being applied to everything from electric buses in Arizona to low-impact ATV trails in Alaska.

But according to Lowe, the infrastructure bill uses grant programs to award funds competitively, favoring municipalities with strong connections to state and federal lawmakers. Low-income communities, even those with strong nonprofits advocating for equity, typically find it more difficult to build those connections. Lawyers can make sure there are “diverse actors in the room,” when deci sions about how to spend federal dollars get made, she said.

The Next Generation of Advocates

Diana Silva, JD ’11, practices environmental law in Philadelphia. “There is a ton going on right now in the legal and regulatory world,” she said. The new policies have “lofty goals, but the devil is in the details,” she continued, and policies that appear beneficial can have unintended con sequences. For example, low-income neighborhoods with large minority populations often rely on nearby industrial facilities for jobs, she pointed out.

Silva is one among many Kline graduates and students who seek to apply their training for the public good. Before law school, Suzanne Chang, JD ’22, worked as a chemical engineer. Kline’s co-op program has helped her marry her scientific expertise on issues such as water contam ination with her legal training. Whereas STEM classes typically require “furious note-taking,” Chang finds the

more discussion-oriented law classes invigorating. In legal terminology, concepts like “reasonable” are abstract and situation-dependent, whereas in engineering, quantifi cation of standards sets clear boundaries, Chang said. Her expertise, she said, allows her to function as a “translator between engineers and lawyers.”

According to Kline’s Richard Frankel, more students see themselves as agents of change who want to make a difference in the world. “I think they really like seeing the impact of what they’re doing and getting out of the classroom,” he said. The key is forming lasting, credible relationships in local commu nities. These relationships, he continued,“take time to build and I think they’re really important.”

Victims of infrastructural injustice not only lack the means to engage in long and exhausting legal fights but also often the energy—they are simply too exhausted from bearing the daily burdens of these same injustices, whether from the struggle to breathe toxic air, to lug jugs of water home from the nearest convenience store or to figure out how to get to work when doing so requires taking three dif ferent buses.

“Because I look like them,” Brielle Brown said, “I have learned to take that seriously, to serve as that voice.” Law school classes focus on “hard skills,” she explained, but Kline’s co-op experiences give students the opportunity to practice careful listening and to learn how to coach clients through difficult experiences. “You can’t get anywhere without that,” she continued. People who believe their rights have been trampled upon by the legal system may, understandably, be skeptical of lawyers. Effective advocacy requires knowing clients’ full, nuanced stories. For Brown, asking the hard questions is “part of my job.”

“That’s what our law school is!” Geisinger agreed. “We like to see the law in action, and our students are similar.” ■

Wendy Gibbons is a science educator, freelance writer

Suzanne Chang, JD ’22, worked as a chemical engineer before law school.

A Q & A with Author Aziz Z. Huq

Aziz Z. Huq is the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago and a scholar of U.S. and comparative constitutional law. He has written on topics rang ing from the rise of authoritarianism and decline of democra cies around the world to the regulation of artificial intelligence. He is the author, with Tom Ginsburg, of How to Save Democracy, which won the International Society of Public Law I-Con Book Prize in 2019. He clerked for Judge Robert D. Sack of the U.S. Court of Appeals for the Second Circuit and for Justice Ruth Bader Ginsburg of the Supreme Court of the United States.

In his most recent book, The Collapse of Constitutional Remedies (Oxford University Press 2021), Huq takes a close look at what happens to individuals who seek to use the fed eral courts to vindicate the basic rights they believe are guar anteed through the United States Constitution.

In fact, he argues, the court so rarely grants remedies to plaintiffs who have, for example, been unjustly harmed by police, that these rights have little practical effect, leaving individuals largely unprotected from the coercive power of the state. He contrasts these cases with the much more favor able treatment that corporations and other powerful entities receive when challenging the regulatory powers of federal administrative agencies.

This yawning gap between what Americans believe are— or should be—their constitutional rights and the remedies they are actually able to achieve in court is, according to Huq, a problem whose roots go back to the failure of the judicial independence that the founders of the republic envisioned.

LEX sat down with Huq earlier this year for a Zoom inter view to discuss the federal courts, the state of constitutional remedies and alternatives for protecting rights under the existing system. The transcript below has been edited for brevity and clarity.

Nancy J. Waters

In your book, The Collapse of Constitutional Remedies, you suggest that, in the popular imagination, the federal courts act as a bulwark to protect individuals against the coercive and often even violent power of the state. In fact, you argue, the opposite is—and largely always has been—true: The courts typically fail to protect individuals from state power, and, moreover, curtail the government’s regulatory powers to protect individuals from corporations and other power ful actors. Can you give us some examples?

In the book, I give the example of a man called Alexander Baxter who was homeless and arrested by police. During the arrest, police officers set a police dog on him, and the dog seriously injured Baxter.

You would have thought that Baxter had a right under the Fourth Amendment against unreasonable force, and you would have thought that the egregiousness of the action taken by the police—setting a dog on someone who had put up their hands and surrendered—would have made this an easy case. Quite the contrary. The fed eral courts have established over the last 50 years a set of rules for when individuals get remedies in the face of state

violence, and these rules about remedies make it very dif ficult for people like Baxter to even get into court. Indeed, Baxter, whose case went all the way to the United States Supreme Court, never once got to state his case in court because of the doctrine of qualified immunity that pro tects police from liability for actions taken while on duty.

That’s just one example, but it’s representative in the sense that most people who are subject to acts of state coer cion don’t have an effective remedial pathway even if their treatment violates the Unites States Constitution. This is in stark contrast to the way that federal courts today treat cor porations and other regulated actors seeking to challenge a federal administrative agency’s actions. In this sphere, courts have made it much easier to get into court and to object on constitutional or statutory grounds to federal regulatory action.

An example of that is a case called Seila Law LLC v. CFPB in which a California law firm challenged the actions of the Consumer Finance Protection Bureau (CFPB ). Seila’s challenge was based upon the claim that the president of the United States lacked the authority to remove the CFPB ’s chair. Now, what’s striking about the Seila Law case is that the CFPB hadn’t charged Seila Law; it had just requested documents from Seila Law, but that was enough to get the firm into court.

Moreover, Seila Law couldn’t credibly say that the degree of presidential control over the agency changed the way that the agency treated the firm. That is, there was no connection between the constitutional claim that Seila Law was bringing and the actual way they were treated in that case.

Despite those two big differences between Seila Law’s case and Baxter’s case, the court allowed Seila Law’s case to go forward: It reached the constitutional question on the merits. The important point is that Seila Law got a hear ing on the merits and Alexander Baxter didn’t, and that’s reflective of a broader pattern in which the court has used the doctrine of remedies as a way of allocating the scarce resource of constitutional adjudication.

In the book, you note that John Locke and John Adams believed there should be no role for courts independent of both the legislature and the executive. Do you disagree?

Broadly, how would you characterize your conception of what the role of the federal judiciary in the United States should be, and, in any true democracy for that matter?

That’s a really hard question, and it’s not one that the book answers. I’m not sure I have a simple answer. What I would say is that, at the founding of the republic, there were dif ferent views about the role the courts could or should play in a polity. And there was an entirely serious view associ ated with both John Locke and a very influential French thinker called Montesquieu that independent judicia ries were not a necessary feature of a decent democratic government. That view was held to varying degrees by a number of people in the context of the debates over the ratification of the U.S. Constitution. On the other hand, other people involved in the ratification debates thought that independent courts were very important.

The point that I want to make about the ratification context is that the framers had a very specific understand ing of how independence would be achieved. It was an understanding of judicial independence that rested upon certain assumptions about background political and social conditions. It assumed, for example, that there would be a very, very small supply of qualified jurists. And it assumed that the U.S. Senate, in particular, would be a non-parti san body. The framers thought that they had designed a constitution that would eliminate political factions at the national level.

Neither of those two assumptions about limited sup ply of qualified lawyers or about the non-partisan nature of the Senate survived the first decade of the American Republic. In a sense, both of those assumptions were

victims of the success of the American project. But what that success meant was that the framers had crafted in Article III of the Constitution an institutional pathway to foster judicial independence that rested upon assump tions that were—by the 1800s—false.

So, it’s not so much that I have a view in the book about what the right way to design courts in a democracy is or what the right way to design independence is. Describing the ideal is often a hard task. It’s much easier to say that whatever the ideal is, we can see that some zone choices turn out to be incompatible with background circum stances and turn out to be self-defeating in one way or another. Within that zone of potential criticism, one can identify ways in which the design of Article III rests upon assumptions that are, I think, clearly no longer valid.

The vision of judicial independence in the Constitution is based upon the idea that there would be no possi bilities for partisan selection of judges at the front end and, therefore, the only kind of protection required was at the back end once judges were appointed, and that protection needed to focus on individuals rather than the judiciary as an institution. I think none of those assumptions turn out to be well founded, which sets the stage for where we are today with remedies.

In the book, you argue that remedies are so rare, they are almost non-existent, but that without a remedy there is no right. Does this mean our conception of individual rights in this “democracy” is an illusion?

I certainly think that with, for example, police violence, the difficulty of obtaining any kind of remedy under fed eral law means that it’s really hard to see how—outside of the truly exceptional cases in which death results—the police are constrained by constitutional law and consti tutional rules concerning force. I wouldn’t say that the right is an illusion—that’s not the way I would put it. But I would say that the right does not have much practical effect upon the way that the police behave. So, from the perspective of the citizen, the right might have theoretical value, it might have a dignitary value, but it doesn’t cash out as an expectation respecting the way that the state and its coercive actors actually behave.

Most people who are subject to acts of state coercion don’t have an effective remedial pathway even if their treatment violates the United States Constitution.

You said it has a “dignitary value.” Can you explain that?

Before the mid-1950s, the claims made by the Civil Rights movement to equal participation, particularly in Southern states, were claims that were not recognized as a practical matter—they were denied. But the fact that the Civil Rights movement at times—not always, but at times—could make its claims in constitutional terms clearly made a difference to the people involved in that movement and clearly made a difference to other people.

So that’s an example where you have a right that is not recognized under law, but that’s a right that has dignitary effects on people making the claim and also on third parties.

So, what we might call a symbolic effect has a cultural, social and psychological impact?

It might do or it might not do. But I’m trying to explain why “illusion” is not the word I would use to describe these rights.

In your book, you argue that this dynamic has been in effect since shortly after the founding of the republic. If so, is this really a collapse of the remedies themselves, or rather a collapse of our conception of our own rights as individuals? Are you arguing that something has happened recently—the last 25 years, say—where the remedies collapsed? I think you are suggesting that this dynamic has been ongoing.

think that the book is telling two different stories, and they have slightly different time frames. The first story is the failure of the assumptions that undergird our constitu tional vision of judicial independence. And that’s the story of what happened in and around the founding and, princi pally, the decades that followed. Because judicial indepen dence did not work in the way that the founders imagined, the judiciary has always been porous to partisan forces in a way that is not well captured in the public imagination. And those partisan forces have molded the judiciary in ways that reflect transient policy agendas. The judiciary is expanded when it is useful to a particular dominant polit ical party to expand the courts. This was especially true in

the 1870s when courts were used as a wedge to nationalize the American economy.

Federal courts turned out to be useful to a Democratic coalition in the 1940s and 1950s as a way of undermin ing Jim Crow without directly confronting Southern Dixiecrats. So, the courts became a way of effectively solving a problem that President Franklin Roosevelt had with his coalition in the context of the New Deal. Because courts played that role in the ’40s and ’50s, courts in that capacity expanded the remedial options that were avail able to individuals as part of the campaign against Jim Crow laws both in schools and in police stations and courthouses. The availability of remedies dramatically expanded starting at the beginning of the 1950s and endur ing to the 1970s.

So, the term collapse is appropriate because since the 1970s the availability of remedies as opposed to rights has been dramatically withdrawn, particularly for those populations that most benefitted from the Second Reconstruction. And again, this is a story about the respon siveness of the federal courts to changing national political coalitions. I think that people forget that the last time the Supreme Court had a majority of justices appointed by a Democratic president was at the beginning of the 1970s. So, we’ve had a majority Republican-appointed Supreme Court since the beginning of the 1970s. And the appoint ing presidents, starting with Richard Nixon, have had a very, very clear vision of what they want from the courts. Starting with Nixon’s “Law and Order” campaign, new Republican appointees to the Court focused on drawing back remedies, in particular in the policing and criminal justice context, which remains, I think, true today. So, in that light, I do think that the word collapse is appropriate, but the term is capturing one piece of a bigger story.

So, do you have in mind any specific reforms that could reshape the federal judiciary that could make it more dem ocratic and more protective of the rights of individuals?

First, the responsiveness of the federal courts to the interests particularly of the economically and socially marginalized really turns upon who wins political power in the Senate and the White House and who appoints federal judges. I think that we think of the courts as a counter-democratic institution or a counter-majoritar ian institution. But that’s not true in the sense that courts are responsive—and pretty quickly responsive in the scheme of things—to those national majorities. And the big changes that we’re seeing now in abortion, equality and Second Amendment cases is very clear evidence of that straightforward fact about American political life. So, at least in our current system, what matters is who gets elected, even for the courts.

The second thing I would say is that there are limits to what the federal courts as currently designed will be able to do, especially for people who are indigent, who are socially marginal, who don’t have the resources to bring cases or to influence the agenda of the federal courts. The book doesn’t talk about this, but there are reforms outside

It’s really hard to see how—outside of the truly exceptional cases in which death results—the police are constrained by constitutional law and constitutional rules concerning force.

of the courts that can be imagined that would make police departments in particular more law-abiding and rightsrespecting. This matters because police are numerically the most important violators of constitutional rights in the United States because they are the people most endowed with the power to coerce. That’s their job—their job has the highest risk of constitutional violations. That’s a neutral observation. I think there are ways of eliciting more constitutional behavior from police departments that would involve alternative mechanisms that are more effective than what we have now, and they don’t involve the courts.

I’ll give an example. There’s a set of tribunals that are outside of Article III, they are called Article I tribunals. An example is the U. S . Court of Claims, which hears claims against the federal government for cash. You can imag ine an Article I tribunal that would hear claims on the grounds that a particular police department had a pattern of practice of constitutional violations. You could imag ine that the qualification for sitting on that Article I body is that a person have had some experience either as a public defender or as a civil rights litigator so that they under stand the situation of litigants and that they understand the dynamics of those institutions. Our federal courts are massively biased toward prosecutors at the moment. You can imagine that Article I body would have the power to award damages to the group of people harmed by a police department’s unconstitutional conduct, but that it would also have the power to limit or to redirect the federal fund ing that flows to that police department. So, you could imagine that it would have not just the lever of a damages

award, but that it would have the lever of shutting off the spigot of federal funding, or saying, “You’re allowed to have federal funding but you’ve got to use it for use-offorce trainings and unless you have these use-of-force trainings, that’s it: You don’t get federal funding.”

So, is that the same dynamic as “defund the police”?

No. The defund-the-police claim is that it is just categor ically a mistake to rely upon policing to produce social order, and that the way you produce social order is that you invest much more in social services. There’s empirical evidence that this argument is true, at least sometimes, in the work of people like Patrick Sharkey at Princeton. But what I’m referring to is different because it doesn’t involve an absolute removal of funding from policing; it uses the funding that exists as a lever to change behavior and it focuses on the fact that federal funding has become an increasingly important part of what local police depart ments rely upon—so it’s quite different from the aboli tionist claim.

Would putting different incentives into collective bar gaining agreements with police unions or similar efforts be another kind of helpful reform?

This is a bit far from the argument of the book, but yes, I do think that changes to the structure of collective bar gaining agreements are important. In other work with colleagues, I have written about the actual content of col lective bargaining agreements and, in particular, about those provisions in collective bargaining agreements that benefit only bad actors within the police—provisions that all they do is allow bad actors to coordinate cover-ups. I think there is no justification for those provisions. That’s an example of something that can be identified pretty specifically and eliminated.

In a forthcoming piece with my colleague Robert Vargas of the University of Chicago’s sociology department, we’ve looked at why it is that policing reform—even in a big liberal city like Chicago—fails. And that has a lot more to do with the dynamics of how the mayor interacts both with the city council and with the police department. It has a lot to do with what makes a mayor popular or unpop ular and how dependent the mayor is on the police depart ment because of the role that crime plays in public opinion. [Editor’s note: You can find this article at papers.ssrn.com/ sol3/papers.cfm?abstract_id=4046125.]

That’s a quite different story, and I actually think it’s a more subtle story that presents difficulties for the straightforward abolitionist argument because it suggests that the abolitionist argument just focuses on the police department and doesn’t step back to ask, “Well, why does the police department take this path? Why does it have these attitudes and not others? How did this come to be and what role does it play in a larger political economy?”

On page 157 of your book, I found this quote, which I love: “Too many lawyers and scholars genuflect before the

At least in our current system, what matters is who gets elected, even for the courts.

federal court because their own professional standing is inextricably linked to the judges for whom they worked and the federal cases they have filed.” You are both brave and—I’m guessing—secure in your position to feel safe writing that kind of statement.

I think federal judges are pretty used to being criticized. And in a democracy with free speech, that’s as it should be.

Yes, but I think the bravery is in criticizing your colleagues. How would you fix this—in and out of the academy, with regard to scholarship, pedagogy and practice?

I don’t think there is any single fix. I’m not sure I have a view about how to change people’s attitudes within the bar. I do think that one kind of prediction that I would make is that the current Supreme Court in its policy preferences is pretty far from the median American lawyer. And I think that if the court pushes the envelope with respect to its pol icy preferences—I can imagine this occurring over not just abortion but over the rights of the religious to discriminate in ways that harm third parties—I think you can imagine such a gap emerging between the court and the bar that the court starts to lose the almost instinctual support that it has from the bar. If we live in a world where there’s a big, big gap between the beliefs of the bar and the beliefs of, at least, the Supreme Court, that creates a kind of tension.

With respect to the academy: The academy is very var ied. Probably, what I have to say is more applicable to the bit of the academy that likes to think of itself as elite, but I don’t want to subscribe to that word. I do think things like the Yale Law School scholarships that were just announced for low-income students are very important, and the dean there should be applauded for what she’s doing on that front. I think expanding and emphasizing the role of law yers in service of the indigent through clinics and non-clini cal programs is really important. The more that law schools think about what they are doing as training people to engage in a service to the public, that whether they work for the government or a public defender or a law firm, they are still, in some sense, public servants is really important.

Rights Without Remedies:

So, let me make sure I understand this: You would like to see more of a public-service emphasis in legal education?

I think that’s fair. I think that I would add that young law yers should have a sense of the full spectrum of people who experience legal problems, what their experience is. I think that it’s easier to be detached from the actual problems of actual people.

So, you are advocating that law students have more exposure to those people whose rights are denied?

That’s a nice way of putting it. And that connects it to the theme of the book correctly.

Would you argue that laws schools need to be explicitly saying something different about the federal judicial system?

I don’t think law schools should say much one way or the other. Occasionally they do, and it gets them into trou ble. Law is a very hierarchical profession, and I think law schools could do more to foster a non-hierarchical sense of achievement. For example, they could do more to celebrate publicly graduates who go into public service that power fully changes people’s lives and that this is maybe more important than getting appointed to something or other.

I think they should spend less time publicizing their links to powerful judges and politicians—but I recognize that I’m just whistling in the wind on that last point.

You had two federal clerkships. How much of your sense of disappointment with the federal judiciary arose from that close exposure or was this something that you developed later as a scholar?

Both of my judges, one of whom is still on the federal bench, were and are, I think, models, not just of what a lawyer and a judge should be, but of what a human being should be—in terms of their decency, their empathy and their care for what the law required and what the law was for as a social institution. I was tremendously lucky to work for such remarkable lawyers and human beings, and I wouldn’t have given up that experience for all the gold in the world.

I’m in the odd position of writing a book that’s very critical in many ways of the federal judiciary and dedi cating that book to the judge I clerked for who is still living, Judge Sack. I sent him a copy of the manuscript early on and said, “Look, I’m planning on mentioning you. Is that OK ?” And he was fine with it, but I have no idea whether he agrees with some, all or none of the arguments in the book.

I certainly think the experience that I had in work ing for those particular judges shaped my view of what makes a judge a good judge and what role a judge can play in a decent society. Although I don’t purport to speak for either of them—I think that both of them would say it’s perfectly fine to look at actual courts and express actual

Young lawyers should have a sense of the full spectrum of people who experience legal problems, what their experience is. I think that it’s easier to be detached from the actual problems of actual people.

disappointment that they don’t live up to the ideals that one wishes for them.

You were raised in England and first came to the United States as an undergraduate, correct?

I did. I came here as an undergraduate to go to the University of North Carolina at Chapel Hill.

Do you think the experience of not having been raised here gives you a clearer perspective on the fault lines of American democracy and, in particular, our court system?

Ithink there are plenty of people who are born and raised here who have very clear perspectives. I don’t think it’s nec essary to be an outsider to have a sense of what you call the “fault lines” in a society. There are plenty of people internal to a society who have a very sharp sense of that. Conversely, I think there are many people who come to another country and wrap themselves in and embrace the myths that the country tells of itself. I don’t think there’s any connection between being an outsider or a newcomer to a place and seeing it in a distinctive way.

One of the things I tell my law students is that when I walked into my first constitutional law class, I was quite green. I had grown up in a country without a written

constitution. I had not studied politics or taken any con stitutional law classes in college. I didn’t really have a sense in college that this was an important topic or didn’t really understand why. I turned to the person I was sitting beside, and they said, “Well, this should be easy because I took Con Law in college.” I talked to three or four more people that day who said they had had it already in college. I thought, “This is going to go terribly because I know less about this than anyone.” I guess it didn’t. I tell my law students about this and say, “It will be fine. You can think you know things and actually you don’t. And you can think you don’t know things, and that can actually make it easier to perceive and to grasp things.” It’s hard to predict up front who is going to see what. I wouldn’t assume anyone has a better grip of the world based on where they are coming from.

I’ve read so many different criticisms of the federal judiciary. Bearing in mind that I’m not a legal scholar, I don’t think I’ve ever seen anyone else make the case that these particular problems were built in. The assumption often seems to be that this was working in some grand and glorious ideal time in the American past, and then it all fell apart.

That’s the deep message of the book, although perhaps the title gets in the way. That is the more profound criticism that’s being levelled in the book.

Are there any other ideas with regard to this book and your other work that you want to leave LEX readers with?

I think it’s really important to think hard about the legacies that we have embodied in the law and not to take them at face value, not to take them as slogans, but to take them as things that require rethinking and revival every genera tion. That’s the project of the book with respect to judicial independence.

The next book is a short book about the rule of law. I would say the same things about the rule of law. The rule of law requires a certain revival under different circum stances every generation. ■

I’m in the odd position of writing a book that’s very critical in many ways of the federal judiciary and dedicating that book to the judge I clerked for who is still living.

The Law Is Too Important to Be Left to the Lawyers

The Return of the BA in Law

By Analisa Goodmann

Before a graduate degree became almost universally required to practice law in the United States, undergraduates once roamed the halls of the country’s law schools. The increase in jobs and job functions in areas adjacent to the law has encouraged some pioneering law schools to bring undergraduates back onto the law school campus.

Previous page: Alumni of Vanderbilt University Law School received JD degrees at a special investiture ceremony in October 1969.

A few months later, Perdue wrote a letter to Vanderbilt Law Dean John Wade, joking that “for the past couple of months I have … insisted to all of those employed by me that I be called Doctor.” Turning serious, he then congrat ulated Dean Wade on the success of the JD weekend, during which many graduates returned to collect their newly minted degrees.

Some of the dozens of his fellow alumni who had responded to the school’s invitation to the weekend were not as jubilant about their new degree as Perdue. In his letter to Wade declining the new degree, alumnus Miller Mainer, who practiced in Nashville, enclosed a check, noting “I just do not feel like sailing under false colors and if I didn’t earn a JD either as a law student or as a profes sional honor, due to my legal life, I just don’t feel I have any right to it.”

Vanderbilt Law School arrived at the plan to grant retroactive JD s only after years of consideration, which included surveying law schools across the country about their own degree practices. And, even then, in a letter sent in October 1969, Dean Wade addressed the new JD alumni as “Doctor” with quotes—perhaps suggesting some lin gering doubt. This range of mixed responses reflected the unsettled and variable nature of legal education in the United States throughout the 20th century.

In the early days of the nation, many attorneys were educated informally via apprenticeships with law firms, clerkships with judges and self-study. In 1792, the College of William and Mary in Virginia issued the first law degree in the United States, a Bachelor of Law degree. In the 1840s, the LLB (for Legum Baccalaureus) came into vogue, and for the next several decades, formalized legal education was at the undergraduate level, although obtaining a degree was not necessarily the preferred path for would-be lawyers.

After the Civil War, an effort arose to improve formal legal education, but institutions had trouble attracting students because they were the more costly option, and no standardized requirements compelling students to undertake formal study existed. Around this time, the law industry was expanding significantly, gaining tens of thousands of lawyers between 1850 and 1880. Perhaps in reaction to this expansion, there was a push for a more formalized vetting system. By 1890, admission to the bar in the majority of jurisdictions in the U.S. required some formal education or apprenticeship.

One Friday in October 1969, Doran E. Perdue returned to his alma mater, Vanderbilt University Law School, to receive his Doctor of Jurisprudence degree. An already-practicing attorney from Evansville, Ind., Doran was one of dozens of Vanderbilt alumni to retroactively receive a juris doctor (JD) degree to supplement the Bachelor of Laws (LLB) degrees that they already held.

Harvard Law School became the key player in creating the three-year curriculum that was the precursor to what law schools offer today. By 1871, Harvard expanded the length of its LLB program from 18 months to two years, ulti mately adopting a three-year version in 1899. The program remained, nominally at least, an undergraduate one, but by the beginning of the 20th century, the more prestigious law schools were mostly admitting students who already had college degrees.

The first law degree remained formally an undergrad uate one, leading many students to receive a bachelor’s degree and an LLB . This contrasted with the degree con ventions for other professions—in medicine, for example, students received graduate degrees. By the turn of the cen tury, law students began asking for graduate law degrees. In 1902, Harvard law students petitioned the school to offer a JD degree, which according to lawyer and author David Perry, was based on the juris utriusque doctor degree offered at some European universities.

Although the effort to formally transform law school to a solely graduate institution initially failed at Harvard, it succeeded elsewhere. In 1902, the University of Chicago Law School was established as a graduate institution, requiring a college degree for admission and awarding JDs to its graduates. But in another complicated twist, Chicago eventually partially reversed course and agreed to admit students who had not graduated from college, conferring on them the LLB , offering JD and LLB students the identi cal curriculum. Other law schools followed Chicago, award ing both degrees. Interestingly, however, even though Harvard Law School began requiring a college degree for admission in 1909, it still did not offer the JD. In fact, the resistance of Harvard, Yale and Columbia to offering the JD prompted several other schools to revert back to offering the LLB , although some awarded JDs as an honor to excep tional LLB students.

Throughout the next several decades, legal education slowly standardized. As early as 1921, the American Bar Association (ABA ) and the American Association of Law Schools (AALS ) began issuing recommendations on the level of undergraduate education students should have achieved before being admitted to law school. Between the 1920s and the early 1970s, the ABA’s review of legal education reports included a close tracking of which American—and occasionally Canadian—law schools

This page details the plan to confer degrees in law at the College of William and Mary, where the first law degree in the United States was awarded in 1792.

required undergraduate education and how much. By 1971, the majority of ABA-approved law schools required three years of college or an undergraduate degree. And the graduate degree eventually became de rigueur at law schools across the country after Harvard’s faculty voted in 1969 to begin awarding JD s and to retroactively grant that degree to alumni who held LLB s if they wanted one.

The Undergraduates Return

As the legal profession and legal education became more formalized over time, American law also became, and con tinues to become, increasingly complex. For example, new laws—and with them, new legal sectors—have arisen as a result of the invention of new technologies, the growth of new industries, the expansion of civil rights and the rise of globalization, along with the slew of issues that accom pany it. This increasing complexity has also resulted in the creation of, and increasing demand for, legal roles for non-attorneys. This phenomenon is perhaps most evident in the regulation and compliance sectors across multiple fields, such as health care. (The United States Bureau of Labor Statistics projects 6.2 percent employment growth for compliance officers between 2020 and 2030.)

The expansion of law-adjacent careers occurred prior to and in the wake of the economic crash in 2008, which had

In the early days of the nation, many attorneys were educated informally via apprenticeships with law firms, clerkships with judges and self-study.

Undergraduate students gather between classes outside Drexel University’s Korman Center.

a knock-on effect of decreasing the number of applications to JD programs at law schools throughout the United States. As a result, legal educators were faced with a conundrum: increasingly complex law, an ever-growing demand for a new type of legal professional and decreased demand for traditional graduate legal education. For the past several years, universities have responded to this problem by cre ating professional degree programs, often at the graduate level, that offer students training in the legal expertise needed in these expanding sectors. (Kline Law’s Master of Legal Studies program is one example.) And two law schools, the University of Arizona and the University of Buffalo, took the significant step of creating similar programs for under graduates, bringing college students back to the law school, by creating Bachelor of Arts (BA) in law programs.

Marc L. Miller is dean of the University of Arizona James E. Rogers College of Law.

The University of Arizona’s James E. Rogers College of Law partnered with the university’s College of Social and Behavioral Sciences and the School of Government and Public Policy to become the first institution in the United States to confer a BA in law, which is offered in person and

online. According to Arizona Law Dean Marc Miller, the program was created in response to a long-standing con versation at the College of Law about how to increase access to legal education as well as access to legal services by those trained in law, and with the knowledge that other countries offer undergraduate degrees in law. Achieving greater stu dent diversity was also a goal. The undergraduate popula tion, Miller pointed out, was typically more diverse in many ways than the JD population.

Although Arizona’s BA in law is still new, the school points to strong indications that it is achieving its goals.

“The BA in law program has been much more representa tive of the general population than have traditional JD pro grams,” said Keith Swisher, a professor of Legal Ethics who also directs the BA in law and the Master of Legal Studies Programs. “Racial and ethnic diversity has been greater in the BA in law program than in traditional JD programs; the number of first-generation college students has been higher on average,” he continued.

“This is sort of my motto: Law is too important to be left to the lawyers.”

Students who wish to matriculate to Arizona’s BA in law program apply to the university, not the law school. They are required to take general education classes at the university, and the major-specific courses mimic those of the first year of law school, although the BA and JD classes are usually taught separately, according to Swisher. Law students at both the BA and JD levels do collaborate on some of the journals the school publishes, however, and JD fellows work with undergraduate students in a role similar to teaching assistants.

In 2015, Arizona Law began offering the BA in law abroad by launching a dual-degree program with the Ocean University of China in Qingdao, China. “One of our greatest potential exports is American private law,” said Miller. “Most of these students are not coming to the U.S. to get a JD or LLM , although many do. The value is in learn ing U.S. law, then going to work with Chinese government agencies or companies.” Graduates guide their organiza tions on what U.S. laws come into play as the organization operates in the American market, he explained.

Currently, 1,000 students in the American versions of the Arizona program are enrolled in the in-person and online BA program, and 700 students have graduated. Among the 2021 graduates, two thirds report that they are pursuing jobs in legal services, with the next highest sectors being finance and human resources, according to Swisher. One-third of graduates report going to law school or planning to do so.

Recent graduates affirm the degree’s value in the work place. “I always encourage people to get that legal founda tion and education,” said Lauren Easter, who graduated from Arizona with the BA in law in 2020. “I’ve seen it over and over again: Employers really love candidates that have some type of legal background.”

Arizona Law launched a dualdegree BA in law program with the Ocean University of China in Quingdao in 2015, with the first class graduat ing in June 2019.

James G. Milles is vice dean for undergraduate studies at the University of Buffalo School of Law.

Democratizing Legal Education

The BA in law does more than just equip graduates to compete for careers in an increasingly globalized world. According to some of its proponents, it also better prepares graduates to participate actively in American democracy.

James G. Milles, the vice dean for undergraduate studies at the University of Buffalo School of Law, was skeptical about the BA in law when conversations about creating such a program at the university first began. But by the time the program launched in 2019, his skepticism had turned to faith. “I really believe in this program,” he said. “It is important in building democracy. I think there’s a need for that…. We’ve seen it for the last several years. There’s a need for people to understand the role of law in a democracy, and there’s not a lot of understanding out there…. This is sort of my motto: Law is too important to be left to the lawyers.”

Milles cites the increasing complexity of the law as well as the distance between the law and “ordinary people’s

Rose Corrigan is associate dean for undergraduate education at Kline Law.

Drexel University opened in 1891 as the Drexel Institute. The original struc ture is known today as the Main Building.

experience” as one of the drivers behind the creation of the BA . A goal of the program, he said, is to foster individ uals who “aren’t going to be lawyers but they’re going to be working in positions where they’re going to be talking to lawyers and working with [them].”

As of early 2022, 200 students are enrolled in the UB School of Law undergraduate major, and the school is working to integrate the undergraduate and JD com munities, with JD students acting as teaching assistants and BA students supporting work in clinics. Buffalo’s program is similar to Arizona’s in that students apply to and are admitted by the university. Two tenured law school faculty teach in the program, and adjuncts and full-time lecturers cover the rest of the courses. Several

alumni teach in the program as well, which Milles says, they greatly enjoy.

Professor Rose Corrigan, associate dean for under graduate education at Drexel University’s Kline School of Law, said that she sees the move toward educating undergraduates in law as “democratizing legal education.” Corrigan has been central in leading this effort at Kline Law, where a brand new undergraduate minor in law was launched in 2022.

“For a long time, law was the province of powerful, priv ileged people,” said Corrigan. “But law is a discipline that touches people’s lives in so many different and important ways. I very much believe that undergraduate education in law can be really critical, really powerful.”

Daniel Filler, Kline’s dean, agrees. He envisions the school producing graduates at every level who will become active participants in democracy, whether they practice law as attorneys, work in law-adjacent fields or pursue careers less directly related to the law.

“An element of our democracy is engaged, civically minded and civically educated citizens,” said Filler. “My theory is that law is performed, followed and enforced formally and informally—norms, for example, are part of the informal enforcement—by a citizenry that believes in law. And so, my thinking is that our undergraduate degree, and, in fact, our whole law school program, is designed to be an educational infrastructure in support of this notion of the rule of law.”

The BA Comes to Kline

This fall, Kline Law will become the third law school in the United States to offer a bachelor’s degree in law, and the first at a private institution. In addition to fulfilling Drexel University’s undergraduate core course requirements, stu dents admitted to the program will take such Kline courses as “Law and Society,” “American Legal Systems” and “Legal Reasoning.”

“The undergraduate law program,” said Corrigan, “is structured in such a way as to encourage students to think big, to see connections between, say, legal and political systems or legal and economic systems. At the same time, the program will give students more training in law than they would typically get in undergraduate classes.”

“We are aiming,” she continued, “to find that sweet spot of teaching about law and legal rules situated within a broader societal context.”

The new BA in law will build on the school’s existing minor in law program. Kirill Sosonkin, BSBA ’23, a junior majoring in finance and minoring in law, praises the pro gram’s pedagogical approach. Corrigan’s “Law and Society” course, he said, taught him to think for himself.

“Instead of just learning material and writing about it,” he explained, “Professor Corrigan’s class included review ing case studies that presented different perspectives on the same material, and then students made their own deci sions on how they felt about the cases.”

The final class project, which was a debate on whether a hypothetical defendant should receive the death penalty,

underscored for Sosonkin that different individuals can interpret the same material in significantly varied ways. He found himself and another student on opposing sides of this question. “We discovered in the debate,” he said, “that the difference in our opinions was the result of how we were interpreting one sentence in the hypothetical.”

Jishan Ahmed, BA ’24, a Drexel undergraduate major ing in political science and minoring in law, said that his Kline Law class on “American Legal Systems” gave him the opportunity to meet attorneys working in areas that inter est him. For example, he was inspired by his meeting with Martin Stolar, who has represented both Black Panthers and Black Lives Matter protesters.

“Listening to an experienced lawyer, and one who coincides with my political beliefs, gave me hope for my future and inspired me to continue my journey to pursue law as a career,” Ahmed said.

Professor Elena Cohen joined the Kline Law faculty at the end of 2021 and teaches the “American Legal Systems” class. She is, she said, passionate about teaching law to undergraduate students. “I think anything that gets peo ple invested in the law at an earlier age and earlier point is good for society,” she said. “The law is incredibly rele vant to things that happen to all of us every day, and I think the more people that really understand legal systems and structures and the law, the better.” ■

Analisa Goodmann is a freelance writer and the former assistant editor of LEX

Kirill Sosonkin, BSBA ’23, is major ing in finance and minoring in law.

Jishan Ahmed, BA ’24, is majoring in political science and minoring in law.

“I think anything that gets people invested in the law at an earlier age and earlier point is good for society.”

Judicial Illiberalism

By Anil Kalhan

How Captured Courts Are Entrenching Trump-Era Immigration Policies

Joe Biden pledged to end Donald Trump’s inhumane and unpopular immigration policies. But Trump’s partisan judicial appointees have set out to stop him from using his legitimate executive authority. Do elections really have consequences when judges entrench the policies of a defeated president?

Above: Among the 17 executive orders that President Joe Biden signed on his first day in office, several concerned immigration. These included ending construction of the wall on the U.S. Mexico border as well as rescinding the ban on immi gration from certain predominantly Muslim countries.

When President Joe Biden took the oath of office, expectations ran high for major changes in immigration policy. Biden’s predecessor, Donald Trump, had implemented the most far-reaching anti-immigration program in nearly a century, comprising by one count more than 1,000 separate measures. But the Trump presidency never garnered strong public or congressional support for its immigration restrictionist initiatives.

Even as xenophobia rapidly took hold among the Republican Party’s political, media and legal elites, polls regularly found that substantial majorities of Americans opposed the Trump immigration agenda. In fact, public support for immigration grew even stronger during the Trump years—including among his own supporters.

With this reservoir of popular support, Biden force fully pledged as a candidate not only to take “urgent action to end the Trump Administration’s draconian policies” but also to restart “the work of building a fair and humane immigration system.” And within hours of assuming office, his administration began dismantling Trump’s legacy on immigration policy. Emphasizing that immigrants “strengthen America’s families, communities, businesses and workforce, and economy,” he immediately rescinded several of the Trump presidency’s signature initiatives, including its Muslim ban and its directives seeking to ter minate the Deferred Action for Childhood Arrivals (DACA ) program created under President Barack Obama. Biden also directed officials to review and realign all existing immigration policies with his administration’s values and to ensure that they advance its goals—including not just

promoting security and safety but also responding effec tively to humanitarian challenges, respecting due process of law and safeguarding “the dignity and well-being of all families and communities.” Biden also pledged to push for legislation that would provide legalization and a path to citizenship for undocumented immigrants.

More than one-and-a-half years later, the Biden administration’s progress in rolling back Trump’s anti-im migration legacy—to speak nothing of the more ambitious reforms to which Biden committed as a candidate—has been decidedly uneven. A variety of factors have contrib uted to this lackluster record. Like much of the president’s legislative agenda, his aspirations for immigration leg islation have run aground in a dysfunctional, narrowly divided United States Senate. Even within the executive branch, however, where officials have significant poli cymaking latitude, the Biden administration’s progress has been sluggish. Some responsibility lies squarely with the White House itself. Biden and his innermost circle of advisors have been rightly criticized for equivocating on immigration issues and failing to exhibit the political will necessary to reverse Trump’s policies—a failure prompt ing some highly respected, reform-minded officials to leave the administration in frustration.

No less disquieting, however, have been the ways in which right-wing politicians have enlisted a phalanx of reliably partisan Trump judicial appointees to actively subvert Biden’s immigration agenda. Together with other conservative judges, these Republican loyalists have demonstrated an eagerness to perpetuate the anti-immi gration policies of the candidate who voters decisively rejected in 2020, often engaging in irregular methods, dubious factfinding and suspect legal reasoning to do so. The manner in which these judicial foot soldiers for immi gration restrictionism have kneecapped the Biden agenda offers a revealing window into how a federal judiciary

Judge Amy Coney Barrett was the third U.S. Supreme Court justice appointed during the Trump admin istration. Her swearing-in took place just eight days before the 2020 presidential election.

increasingly captured by conservative extremists may con tinue to operate as an active, enthusiastic collaborator in Republican efforts to entrench illiberal, antimajoritarian power and right-wing policies, across a range of substan tive domains, for many years to come.

Capturing the Courts

In the years before Biden’s election, conservative legal and political elites were wildly successful in manipu lating the judicial confirmation process to pack the fed eral courts with committed partisan ideologues. With millions of dollars of outside support from dark money groups, Senate Republicans—led by then-majority leader Mitch McConnell of Kentucky, the Senate’s self-described “Grim Reaper”—initially waged an aggressive campaign to obstruct Obama’s judicial nominees. For the first six years of Obama’s tenure as president, when Democrats held the Senate majority, Republicans deployed a variety of tactics to throw sand in the gears of the confirmation process. After taking control of the Senate in 2014, Republicans imposed an even more aggressive blockade and refused to confirm or even consider Obama’s judicial nominees to an extent unprecedented in modern history.

The highest profile casualty of this blockade, of course, was Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, the centrist, elder judicial statesman selected by Obama to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia in 2016. Bolstered by a multimillion dollar, dark-money attack campaign, Senate Republicans effectively refused to recognize the legitimacy of Obama’s authority to fill the vacancy at all, preemptively announcing within hours of Scalia’s death that they would not consider anyone for the seat until after Obama left office.

The gambit paid off when Trump became president and Republicans handed the seat to Neil Gorsuch instead. While Republicans dishonestly rationalized their obstruc tion of Garland’s nomination with the false assertion that the Senate had never before confirmed a Supreme Court nominee during a presidential election year, their oppor tunism became crystal clear when they rushed to confirm Amy Coney Barrett to replace the late Ruth Bader Ginsburg only a week before the 2020 election. When Barrett was sworn in by Clarence Thomas at a White House celebration hosted by Trump, she became the fifth current member of the Supreme Court to be appointed by a Republican presi dent who initially took office after losing the popular vote.

Republicans’ manipulation of the federal judiciary extended far beyond the Supreme Court. During Obama’s final two years as president, the Republican-controlled Senate confirmed fewer nominees to the lower federal courts than at any point since 1952, gifting Trump more than 100 federal judicial vacancies. Then, after retaining Senate control in 2016, Republicans abruptly pivoted from obstructing Obama’s nominees to fast-tracking Trump’s nominees at an unprecedented clip. By the end of Trump’s one-term presidency, Republicans had installed more than 230 individuals into lifetime judicial positions—represent ing fully 28 percent of all active federal judges—and had tilted the ideological balance of several circuits sharply to the right.

To fill these positions, Trump and McConnell enlisted the conservative Federalist Society—“in-sourcing” the organization, as Trump White House counsel Don McGahn, an active member of that organization, candidly boasted— to identify and carefully screen potential nominees to ensure their commitment to right-wing legal dogma. As a result, Trump’s appointees overwhelmingly came from the ranks of the Federalist Society network, and studies have found them to be significantly farther to the right, on aver age, than judges appointed by previous Republican pres idents. Trump’s appointees also included an unusually large number of conservative activists who had been exten sively involved with Republican Party causes, whether as financial donors, political operatives, policy advisors, lit igators or in other capacities. Many also lacked the expe rience and qualifications expected of those serving on the federal bench: The American Bar Association rated 10 of Trump’s nominees “not qualified” after assessing their

Right-wing politicians have enlisted a phalanx of reliably partisan Trump judicial appointees to actively subvert Biden’s immigration agenda.

The Federalist Society logo features a silhouette of Founding Father and fourth President James Madison.

integrity, competence and temperament—a number rep resenting almost half of all “not qualified” ratings issued by the ABA since 1989. (Senate Republicans confirmed eight of those “not qualified” nominees anyway.)

For a significant number of these appointees, that right-wing activism included work contributing to the Trump presidency’s anti-immigration agenda. Steven Menashi, for example—a Trump White House insider appointed to the 2nd Circuit—was an active participant in the “Immigration Strategic Working Group” convened by Trump White House advisor Stephen Miller, the primary architect of Trump’s immigration restrictionist policies. At least eight other Trump appointees were actively involved in litigation in support of the Trump presidency’s immi gration policies as lawyers working for Republican state attorneys general.

Even before Biden won the election, Trump appoin tees at every level of the judiciary were regularly delivering votes in support of their patron’s anti-immigration posi tions. In the Supreme Court, Trump appointees joined other conservative justices to hand the Trump presidency victories in cases greenlighting its construction of the border wall, upholding its Muslim ban, affirming its com prehensive restrictions on asylum, expanding the scope of mandatory immigration detention and curtailing judi cial review of deportation orders. Several of these cases were decided on the Supreme Court’s notorious “shadow docket,” in opaque, unsigned decrees hastily issued upon limited briefing, without oral argument, and with no rea soned explanations. In the lower federal courts, the angry, lengthy opinions that several Trump appointees issued in support of Republican immigration positions, albeit often in dissent, frequently revealed a deeper thirst to rewrite immigration law principles in restrictionist terms.

Entrenching Trumpism

Since Biden’s inauguration, Republican politicians and activists have taken full advantage of this apparent zest for immigration restrictionism among many of Trump’s appointees. Led by Texas Attorney General Ken Paxton— who was a featured speaker at the January 6, 2021 rally that directly preceded the violent assault on the Capitol, and who has been the subject of a separate criminal indictment and other ongoing investigations for official misconduct—Republican state attorneys general and other conservative advocates have filed a raft of lawsuits against Biden’s immigration policies. These lawsuits have sought not only to sabotage Biden’s immigration policies but also to make the Trump presidency’s own anti-immi gration legacy permanent. Conservative advocates have frequently exploited what Stephen Vladeck, a professor at the University of Texas School of Law, describes as a “little-known quirk” in the case assignment process, which enables litigants in some federal districts, including sev eral in Texas, to circumvent normal random assignment protocols and effectively handpick the judges hearing their cases.

Immediately following Biden’s inauguration, for example, Paxton filed suit challenging the qualified, 100day moratorium on some deportations that the incoming administration instituted pending its review of all the enforcement policies that it had inherited. Remarkably, the seeds of this lawsuit were planted by the lame-duck Trump presidency itself. Only weeks before Biden assumed office, Trump administration officials entered into a series of irregular agreements with Republican officials in multiple states promising that immigration officials would maintain Trump-era enforcement poli cies even after Biden became president. While the legal ity of these agreements was doubtful, Paxton invoked their existence as a principal basis for his lawsuit. As one unnamed Trump administration official openly explained, “[t]he whole point [was] 110 percent to screw the incoming administration from doing anything for six months.”

To guarantee a sympathetic adjudicator, Paxton filed suit in an outlying Texas judicial division under rules pro viding for assignment of virtually all civil cases to a single judge, Drew Tipton. Before his nomination, Tipton had been highly active in Republican circles and had donated $11,000 to Texas’s two Republican senators—both of whom serve on the Senate Judiciary Committee and have col lected large sums of money from would-be judicial nomi nees. Only five months before Biden’s election, Tipton was rewarded with a swift, party-line confirmation.

Tipton quickly delivered in Paxton’s lawsuit, issu ing a sloppy, poorly reasoned order only a few days later that blocked the Biden administration’s partial mor atorium, which never went into effect. In a related case, Tipton deployed the same reasoning to prevent the Biden administration from establishing and implementing new immigration enforcement priorities—a responsibility that judges across the ideological spectrum have long rec ognized to be squarely within the authority of executive branch officials. Tipton effectively appointed himself as a judicial super administrator over the immigration agen cy’s operations, demanding that officials provide him with detailed monthly reports on every known individual who might potentially be subject to immigration enforcement actions and specific explanations for every one of the agen cy’s enforcement-related decisions.

One Trump official explained, “[t]he whole point [was] 110 percent to screw the incoming administration from doing anything for six months.”

Under the Migrant Protection Program, officials returned thousands of asylum-seekers to camps in Mexico via border crossings such as this one in Juárez, Mexico.

On appeal, a 5th Circuit panel pointedly rejected the legal rationale that Tipton applied in these cases. (In a parallel lawsuit filed in Ohio raising the same issue, a 6th Circuit appellate panel forcefully did the same, empha sizing the executive branch’s “longstanding discretion in enforcing the many moving parts of the nation’s immi gration laws.”) However, other judges on the 5th Circuit— which Republicans gave an extreme ideological makeover under Trump—later vacated the earlier panel’s decision without explanation, suggesting that they might be pre pared to embrace Tipton’s reasoning and clearing the way for Paxton’s lawsuit to proceed. Duly emboldened, Tipton proceeded to issue a final judgment relying on the same incorrect factual assertions and flawed legal reasoning as his previous rulings, effectively denying altogether the legitimacy of the Biden administration’s authority to establish immigration enforcement priorities that depart from those of its predecessor.

Similarly, to challenge the Biden administration’s efforts to terminate the Trump presidency’s so-called Migrant Protection Protocols (MPP)—frequently referred to as the “Remain in Mexico” program—Paxton filed suit in a judicial division in Texas where another recent Trump appointee, Matthew Kacsmaryk, hears virtually all civil cases. Although federal law guarantees all individuals arriving in the United States the right to apply for asylum and receive a hearing if they have a credible fear of perse cution, MPP authorized officials to return many individ uals seeking asylum at the U.S.-Mexico border to Mexico, where they must wait while their claims are pending in the United States.

Lower federal courts in California had previously enjoined MPP after concluding that the program was

unlawful. In early 2020, however, the Supreme Court issued a one-sentence shadow docket order permitting the Trump presidency to move forward with the program. Under MPP, officials returned tens of thousands of asy lum-seekers to dangerous conditions in camps across the border in Mexico, where hundreds have been victims of murder, rape, kidnapping and other violent crimes. The Trump administration itself largely suspended MPP due to COVID-19, relying on even more draconian anti-asy lum measures instead. When the Biden administration terminated the program, its secretary of homeland security, Alejandro Majorkas, issued a detailed memo explaining that MPP had never been particularly effective, incurred costs that far outweighed its benefits and was inconsistent with the new administration’s values, immigration policy goals and foreign policy strategies.

Remarkably, even though the program had never even existed in the decades before Trump came to power and almost certainly violates the immigration statute, Kacsmaryk incorrectly concluded not only that MPP was permissible, but that it was legally required—implicitly (and implausibly) suggesting that every administration before Trump had somehow breached its legal obligations. On that basis, he ordered the Biden administration to restart the long-dormant program—even though officials made clear that doing so would require sensitive foreign policy negotiations and coordination with the Mexican government. Kacsmaryk lavished praise upon the Trump presidency for creating an “effective” program and falsely accused the Biden administration of “contribut[ing] to the current border surge” by terminating MPP. Like Tipton, Kacsmaryk also demanded detailed monthly reports from the Biden administration so that he could oversee

Human Rights

Watch charged that, “Asylum seekers swept up in the MPP program,” such as those held in the tent camp in Matamoros, Mexico pictured here, “face[d] kidnapping, sexual assault, exploitation, lack of basic necessi ties, abuse and other dangers… with no meaningful access to due process in the United States.”

and supervise its enforcement operations and diplomatic negotiations from the bench.

A right-wing 5th Circuit panel deployed similarly overheated rhetoric and flawed reasoning to affirm Kacsmaryk’s decision. Subsequently, in yet another cur sory, three-sentence shadow docket decree, the Supreme Court’s conservative majority refused to disturb these lower court rulings, over the dissents of Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. Although the Supreme Court reversed the lower court decisions on the final day of its most recent term, its relatively narrow rul ing leaves ample room for conservative litigants and rightwing lower court judges to continue to interfere with the Biden administration’s efforts to terminate MPP and other Trump-era immigration policies. The court’s most conser vative members also made clear, both at oral argument and in dissent, that they were sympathetic to the substance of Kacsmaryk’s decisions.

In April 2022, Mark Brnovich, the attorney general of Arizona, went judge-shopping clear across the country in Louisiana to attack the Biden administration’s decision to reverse yet another Trump presidency immigration initia tive, and arguably one of its least defensible. At the outset of the pandemic, the administration instituted a sweeping directive that relies on obscure, never previously used pro visions within the Public Health Service Act as a pretext for authorizing summary expulsion of noncitizens at the U.S.Mexico border—without due process or the opportunity to apply for asylum to which they are legally entitled.

The public health rationale advanced in support of this so-called Title 42 expulsion order has been widely understood to be a sham, articulated in bad faith to imple ment sweeping asylum restrictions that the Trump presi dency had not been able to successfully put in place using ordinary immigration law authority. In fact, the principal architect of Trump’s immigration restrictionist agenda,

Stephen Miller, had reportedly been looking for excuses to use this little known (and legally dubious) expulsion authority long before the COVID -19 pandemic from the earliest days of the Trump presidency. Public health experts, including officials within the Centers for Disease Control and Prevention (CDC ) itself, have roundly rejected any claimed public health basis for the Title 42 directive, which immigration officials have used to summarily expel individuals approximately 2 million times since it was first instituted.

For well over a year, the Biden administration dragged its heels and left Trump’s Title 42 expulsion directive in place, a decision that one State Department official, Harold Koh, criticized just before leaving his position as “illegal,” “inhumane” and “not worthy of this administra tion that I so strongly support.” When the Biden adminis tration finally announced in April 2022 that it intended to terminate the Title 42 directive, Brnovich, together with several other Republican state attorneys general, immediately filed suit to challenge the decision. The public health opportunism among Title 42’s anti-immi gration defenders is particularly striking because many of these same conservatives have responded to measures genuinely intended to promote public health, such as the Biden administration’s vaccine and mask mandates, by essentially insisting that the pandemic is over. Only days before filing his Title 42 lawsuit, for example, Brnovich himself joined other Republican attorneys general in a lawsuit before a Trump judicial appointee in Florida that successfully blocked the CDC ’s order mandating masks on public transportation.

Nevertheless, the Trump appointee in Louisiana to whom the case was assigned, Robert Summerhays, wasted little time in following the same playbook as his fellow judicial travelers in Texas. In a pair of decisions whose lan guage and reasoning essentially abandoned the pretense

that the Title 42 order was a legitimate public health mea sure, as opposed to a backdoor set of immigration restric tions, he blocked the Biden administration’s termination of the Trump-era directive. Like Tipton and Kacsmaryk, Summerhays also ordered detailed reports so he could micromanage the immigration agency’s operations.

The strident, often overwritten opinions that Trump’s lower court appointees have frequently issued in these cases have been long on restrictionist bombast and short on legal and factual merit. Nor have these opinions been limited to a handful of district judges in states like Texas and Louisiana. In the 9th Circuit, for example, a cluster of Trump appointees have written and joined intemperate dissenting opinions in support of unsuccessful claims that the Biden administration must perpetuate other Trump-era immigration policies, including a ban on asylum applications from many individuals and broad, controversial interpretations of the economic grounds of exclusion and deportability.

With at least 17 anti-immigration lawsuits filed by Republican state officials to date, and others undoubt edly yet to come, more judicial decrees seeking to cement in place the anti-immigration policies of the 2020 election’s losing candidate almost certainly are on the horizon. Litigation in Texas challenging the Biden administration’s efforts to strengthen DACA , for example, has been ongoing before an anti-immigration Republican appointee, Andrew Hanen, since the start of Biden’s presidency. And the list of Biden immigration policies that conservative litigants hope to subvert in court will likely grow longer. Even if those advocates do not always succeed in steering these cases to handpicked conserva tive loyalists in the lower courts, eventually all of these cases could make their way to a Supreme Court that has been no less degraded and corrupted by the politics of illiberal, antimajoritarian entrenchment. Although the Biden administration ultimately may succeed, with great effort, in reversing many of the restrictionist policies that conservatives have sought to perpetuate, it remains decidedly unclear whether a Supreme Court that has been captured by partisan extremists will consistently permit it to do so.

Immigration, Illiberalism and Democracy

In claiming power to entrench Trump’s immigration poli cies, these right-wing judicial appointees have both echoed and further validated many Republicans’ refusal to accept the outcome of the 2020 election or the legitimacy of the Biden administration. As researchers led by political sci entist Robert Pape have meticulously documented, hos tility toward immigrants and people of color has been a key driver of the movement behind the violent, antidemo cratic insurrection on January 6, 2021. While those far-right views do not command majority support, neither have they been decisively rejected or repudiated within conservative circles. In fact, to a considerable degree Republican polit ical, legal and media elites have either embraced or acqui esced to the antimajoritarian, ethnonationalist worldview and agenda underlying the insurrection. In early 2022, for example, the Republican National Committee adopted a resolution characterizing the insurrection as “legitimate political discourse.” Not to be outdone, in June the Texas State Republican Party adopted a platform that not only expressly denies that Biden was “legitimately elected” but also champions the Trump anti-immigration policy agenda in considerable detail.

The success of the various Republican lawsuits seek ing to make Trump’s anti-immigration policies perma nent suggest that many right-wing judicial appointees are philosophically sympathetic to this same worldview and agenda. Moreover, to advance and entrench that program, these appointees appear to be fully prepared to cast aside prevailing legal principles and dish out large servings of Stephen Colbert-style judicial “truthiness,” conveying a sense of fundamental truth in both tone and content that the facts of these cases do not support. As a result, even though Biden was elected in part based on his pledge to repair the damage to immigration policy that was inflicted by the Trump presidency, federal courts that also were degraded during the Trump years have acted aggressively to, in the words of Karen Tumlin, the founder and director of the Justice Action Center, “keep a shadow Trump admin istration in office on immigration issues.”

Nor has this antimajoritarian power grab been limited to immigration policy. Across a range of different policy areas—including voting rights, public health, civil rights, gender equality and environmental policy—Republican politicians and activists have repeatedly turned to sym pathetic federal judges in a highly successful effort to undermine both the Biden administration’s policy agenda and democratic processes generally. It turns out that, con trary to the popular adage, elections may not “have conse quences” after all—at least not when judges are prepared to act illiberally to entrench policies that the electorate has rejected. ■

Anil Kalhan is professor of law at the Drexel University Kline School of Law. He has previously served as chair of the Immigration Law Section of the Association of American Law Schools and of the International Human Rights Committee of the New York City Bar Association.

As researchers have meticulously documented, hostility toward immigrants and people of color has been a key driver of the movement behind the violent, antidemocratic insurrection 2021.

By Danielle M. ConwayBy Danielle M. Conway

This march through downtown Minneapolis in April 2021 was one of thousands that took place across the country calling for justice in the wake of the murder of George Floyd.

Unlike most murders of Black and brown people in which there are few or no witnesses and no video, the world relived the nine minutes and 29 seconds when Officer Chauvin crushed out George Floyd’s life as the footage was replayed unrelentingly on television and over social media for months.

Each of us processed the horrifying scene in our own ways. My first instinct was to clutch my son, an eight-yearold Black boy. Like many other Black parents—especially Black mothers—I felt paralyzed by grief. That grief made me reach out to four of my colleagues, Black women law deans like me, with whom I knew I could share the pain and the weight of this latest racialized trauma event.

In the weeks following George Floyd’s death, Deans Angela Onwuachi-Willig of Boston University School of Law, Kimberly Mutcherson of Rutgers Law School, Carla Pratt of Washburn University School of Law and Danielle

Building an Antiracist Law School

Holley-Walker of Howard University School of Law joined me to create and co-curate the AALS Law Deans Antiracist Clearinghouse Project. The first of our many conversa tions was about our shared disgust over the destruction of yet another Black body. We listened to one another’s grief, sorrow, fear and outrage. In those conversations we also expressed our revulsion at having to pen yet another message to our respective communities about the failure of our system of laws to prevent murders of Black and brown people. But as those initial founda tional conversations drew to a close, the five of us, like the overwhelming majority of our colleagues in deans’ offices, knew that we had no choice but to address our communities.

Over those days, I also inquired on our deans’ list serv about how law deans could come together to address, collectively, the suffering that we were all experiencing, including the racialized killings, but also the loss of life from the pandemic and the many assaults on civil rights and our democratic institutions particularly prevalent in the Trump era. The immediate response from my query to the deans’ listserv was a cascade of communications from deans about “the message” each wrote to their communi ties, which I must admit was off-putting. I had a negative visceral reaction to the wave of listserv postings, which I perceived, to some degree, as performative.

I shared my reactions with Judy Areen, the executive director of the AALS, and Kellye Testy, the CEO and pres ident of the Law School Admission Council (LSAC). With deep compassion, they suggested that I develop a website to catalogue the deans’ messages to their respective com munities. From this wise advice came the cathartic collabo ration with my co-curators that gave birth to the Antiracist Clearinghouse Project.

The trauma associated with violence against Black and brown people that led to the creation of the Association of American Law Schools (AALS) Law Deans Antiracist Clearinghouse Project is real and painful. We were still reeling from the known, but at the time not yet recorded, murders of Ahmaud Arbery and Breonna Taylor at the beginning of the COVID-19 pandemic in the spring of 2020 when another Black man, George Floyd, was murdered by Minneapolis police officer Derek Chauvin.

Clockwise from left: Danielle M. Conway, Penn State Dickinson Law; Danielle HolleyWalker, Howard University School of Law; Kimberly Mutcherson, Rutgers Law School; Angela Onwuachi-Willig, Boston University School of Law; and Carla Pratt, Washburn University School of Law.

Designing Antiracism Systems

At the conception stage of the project, I introduced my co-curators to systems design and design thinking, which, I suggested, would offer a useful approach for developing and implementing antiracism initiatives and programs for our respective institutions.

Because we took a systems design approach, we began by defining antiracism through an institutional lens. To achieve antiracism goals requires understanding American structural racism, the American legal architec ture that supports it, the disproportionate impact that racist policies and practices have had on people of color and how these processes reinforced interlocking forms of oppression, such as white supremacy and patriarchy. Antiracism efforts seek to activate internal institutional change by acknowledging, analyzing and addressing the racism embedded in the institution’s policies and practices. Antiracism initiatives focused on legal education are vital because racialized social structures and racial ideology are scaffolded by law and legal architecture. To engage antiracism means to first acknowledge the social reality of race, racialized social structures and racial ideology.

Next, engagement with antiracism encourages learning about the forms of racism that are designed to justify the status quo. Finally, a meaningful institutional antiracism program must take action to challenge and contest racial inequality within that institution.

I learned systems design during my military and civilian career as an attorney specializing in government procurement law. Our systems design approach focused on building an antiracist law school by rede signing how American law is taught and learned, with the ultimate goal of supporting more sustainable and just democratic institutions. Marshall Lichty, an opera tions consultant who specializes in working with lawyers, defines systems design as “a hands-on, user-focused way to relentlessly and incrementally innovate, empa thize, humanize, solve problems and resolve issues… [it is] fundamentally user-centered, experimental, respon sive, intentional and tolerant of failure.” Design thinking encourages participants to call upon their own sense of wonder and consider what could be in pursuit of new and better ways of doing things.

To begin, my sister deans and I developed an itera tive process comprising six phases: listening, learning,

Antiracism initiatives focused on legal education are vital because racialized social structures and racial ideology are scaffolded by law and legal architecture.

leading, auditing, implementing and testing. Effective, context-driven systems design should begin by identi fying and centering a user and focusing on that user’s specific needs. For example, the specific user could be a second-year law student who is committed to engaging as a court-appointed special advocate and identifies as gender nonbinary, a member of a racialized group and differently abled. The process of identifying potential users more spe cifically encourages the design team to learn more about them and develop greater empathy toward them.

It is important that antiracism systems design be a whole-of-institution endeavor. So, in the context of higher education, systems designers do not need to be exclusively professors. The co-curators of the Antiracist Law Deans Clearinghouse Project have defined our users as members of the law school teaching and learning community who have acknowledged that systems of racial inequality are embedded within their institutions, but who are new to or reticent about engaging with and implementing anti racism principles.

Second, we defined the challenge as how to create a starting point for users to engage with antiracism princi ples, bearing in mind that some of the users may not con sider themselves to be subject matter experts.

Third, we engaged in a brainstorming process to develop creative solutions to the challenges and painpoints our users confront, developing a list of questions to help deans determine how profoundly institutional racism has encumbered their respective law schools. Question top ics ranged from basic demographics (“What are the demo graphics of your student body and your faculty?”), to hiring processes (“Do your appointments processes and hiring practices account for bias?”), to curricula (“Has your insti tution implemented antiracist curricula and programing?”)

Fourth, we built a prototype that represented our ideas and then shared it widely with people inside and outside of legal education and the legal profession. We provided resources on how to implement antiracist action, some of which included model faculty resolutions, teach-ins, conference sessions and webinars. Finally, we tested the prototype by taking feedback from users who engaged with Antiracist Law

the project and made recommendations for additional sub stantive content.

An iterative systems-based approach is preferable to a linear framework because it avoids siloed solutions and better accommodates contingencies and variables, including the specific varied circumstances of each school. The universal foundational building block of our approach, however, is praxis-informed antiracism. This approach allows users to enter the process from different starting places, recognizing that individuals enter with different levels of readiness based upon their respective comfort levels with antiracism principles, processes and practices. The project is designed to grow and expand and continu ously encourage users to delve critically into substantive dialectical discourse through recursive methods to incor porate antiracism into legal education and lawyering.

A Project’s Progress

Many people and institutions have dealt with the most recent racial reckoning in the United States by asking: “What can we do and how do we do this?” Too often the implied answer is, “There is nothing we can do.” The school that I lead, Penn State Dickinson Law, has under taken its own process to answer these seemingly intrac table questions. Our response has built on the resources provided by the AALS Law Deans Clearinghouse Project and has included issuing two unanimous faculty resolu tions: The first pledged to condemn violence against Black and brown people, and the second pledged to teach and learn according to antiracist principles.

Dickinson Law worked quickly, becoming the first law school in the nation to establish a first-year required course devoted to race and equal protection. The course uses crit ical theory and critical pedagogy to help students further develop how they see their places and roles in an imperfect and still-evolving democracy.

We also implemented a civil rights, equal protec tion and social justice certificate program to provide students an opportunity to deepen their understanding of race, racism and law across the curriculum. To earn the certificate, students must complete a minimum of 15 credits of relevant core, elective and experiential learn ing courses that can include Constitutional Law II and Criminal Procedure, Education Law, Immigration Law and internships in Harrisburg, Pa., or Washington, D C. In the program’s first year, three students earned the certificate.

To chart the vision and implementation of our “Building an Antiracist Law School” project and provide a template for other schools, Dickinson Law also docu mented our ongoing work with three interdependent arti cles that will appear in the 2021 Symposium issue of Rutgers Race and the Law Review (Volume 23, Issue 1). The first of these articles, which I co-authored with Bekah SaidmanKrauss and Rebecca Schreiber, examines the role of inclu sivity in the admission and retention of diverse students. The second, by Amy Gaudion, offers perspectives on race

By explicitly replacing systemic racial and intersectional inequality with systemic racial and intersectional equality, we come closer to fulfilling the promise of equality and justice for all.

and racism within the traditional law school curriculum. Finally, Dermot Groome’s article describes Dickinson Law’s race and equal protection of the laws required firstyear course. [Editor’s note: see papers.ssrn.com/sol3/papers. cfm?abstract_id=3804022; papers.ssrn.com/sol3/papers. cfm?abstract_id=3805994; and ideas.dickinsonlaw.psu. edu/fac-works/270/].

The work of our community has garnered significant attention inside and outside of the legal academy. We led workshops and symposia to convey this knowledge to other law schools and organizations including the University of Connecticut School of Law, the University of Utah S.J. Quinney College of Law, the University of Maine School of Law and the Practicing Law Institute. As more educa tional institutions, organizations, firms and businesses learn about this institutional antiracism work, coalitions of law school leaders and scholars are forming across the country to further support it.

In less than two years spent implementing the systems design practices developed in part through the Antiracist Clearinghouse Project, Penn State Dickinson Law has achieved impressive outcomes. For example, the school doubled our student of color population from 22 percent to 44 percent in 2020, reached 38 percent in 2021 and is on track to reach 32 percent in 2022. From 2017 to 2022, we more than doubled the number of faculty of color, from 12 percent to 35 percent. In 2020, we received the EDGE Education Award from the Council on Legal Education Opportunity (CLEO) for our deep commitment to antiracism in legal education. Finally, Penn State Dickinson Law has received substantial funding to support our antiracism work from, among oth ers, the Steele Family Foundation, the AccessLex Institute, LSAC, the National Association for Law Placement and the Pennsylvania State University.

Building the Antiracist Law School of the Future

Beginning in 2023, the University of California Press will publish a book series titled Building an Antiracist Law School, Legal Academy, and Legal Profession. Building on the work of the Clearinghouse Project and employing the systems design and design thinking approaches that I described earlier, the books will seek to answer the ques tion: “How do we embed systemic equity into law schools and the legal profession?” The book project involves more than 100 participants (systems designers, volume edi tors and chapter authors) from across 30 laws schools and other organizations.

The book project serves as a platform for another important innovation, the Antiracist Development Institute (ADI ) at Penn State Dickinson Law, which was launched in 2021. The ADI seeks to be a center for build ing, practicing and implementing antiracism in insti tutions and organizations. It will offer law schools and other institutions and organizations across the coun try systems design-based approaches to implementing institutional antiracism policies and practices across all their functions and will serve any user seeking to resolve the seemingly intractable challenge of systemic racial inequality. [For more information on the book series and the ADI , see dickinsonlaw.psu.edu/dickinson-lawannounces-antiracist-development-institute.]

Lewis Katz Hall at Penn State Dickinson Law houses the school’s library as well as classrooms, an auditorium and offices.

There are many layers to the work of the Antiracist Clearinghouse and its component projects. The first layer requires inward reflection to recognize and acknowledge the persistent and perpetual forces of systemic racial inequality. The second layer involves learning how to develop systems focused on transforming legal institu tions so that they are no longer complicit in perpetuat ing racial inequality. The third layer of the work requires exercising the will to take action to implement these sys tems. Importantly, the success of this project does not depend on any one initiative—rather, it suggests myriad approaches to address, disrupt and dismantle interlocking forms of oppression.

Ultimately, the Antiracist Clearinghouse Project seeks to be in coalition with the approximately 200 American law schools to develop institution-wide approaches to restruc ture law and legal architecture to help fulfill the promise of equality and justice for all. By explicitly replacing systemic racial and intersectional inequality with systemic racial and intersectional equality, we come closer to keeping this promise. In service to our ongoing, long-term commitment to eradicate racism and bias, Penn State Dickinson Law is immersed in the work of building an antiracist law school. We are committed to this work for the long-term, and we invite our peer institutions and communities to be in coa lition with us. ■

Danielle M. Conway is the Dean and Donald J. Farage Professor of Law at Penn State Dickinson Law and an expert in government procurement law and intellectual property law.

By Nancy J. Waters

Exposing Barriers to Arbitrator Diversity

Peeking into the Black Box

Arbitration is everywhere. If you’ve signed up for a credit card or cable television, made an online purchase or joined a gym, there’s a good chance you’ve agreed to mandatory arbitration without even noticing.

“We have become accustomed to clicking the box say ing we agree with the terms without reading them,” said Kline Law professor Nicole Iannarone, “and as a result we regularly consent to arbitration and many of our disputes with retailers, with financial providers, and other aspects of our life are removed from court and put into arbitration.”

When she teaches this topic, Iannarone asks her stu dents to bring to class an arbitration clause that they have recently agreed to—they rarely have any trouble finding one.

In court, many cases are decided by a jury of our peers, so at least in theory, these decision makers will be some what representative of their communities. With arbitra tors, there have traditionally been no such expectations. And because the process is often private—unlike a court room—critics argue that it lacks transparency and takes place inside a “black box.”

But exceptions exist. For example, for investors who work with a stockbroker, arbitrations fall under the juris diction of the quasi-governmental Financial Industry Regulatory Authority (FINRA), and the process is more public and notable for its relative transparency.

“Many attack arbitration and say, ‘mandatory arbitra tion is bad—here are all the things that are wrong with it,’” Iannarone explained. “I agree—arbitration is not perfect, but the FINRA arbitration forum has some specific features that make it better.”

“FINRA has more transparency,” Iannarone continued. “We can see every award. . . every time an arbitration panel makes a decision, it is there for the public to view. So, we can learn about what is going on in the process and that can help inform us and consumers as we study and design other arbitration contexts.”

Diversifying the Pool

Like so many other American institutions, FINRA has focused in recent years on diversity, with the goal of making the arbitrator pool more representative of the vast diver sity of the retail investor population. According to a report issued in 2014 by the Public Investor Advocacy Bar Association (PIABA), whose members represent investors in claims against stockbrokers, FINRA’s pool of more than 5,000 available arbitrators was notably lacking in demographic diversity. Among the findings: 80 percent of the available arbitrators were male and their average age was 69.

Following the PIABA report, FINRA Dispute Resolution Services (DRS) took steps to diversify its roster of potential arbitrators. According to the organization’s web site, this “aggressive campaign” included recruiting new arbitrators from “diverse backgrounds, professions, and geographical locations by conducting outreach to more than 100 minority and women’s organizations, attending conferences that attract individuals of varied backgrounds, and networking and hosting events with diversity-based organizations.”

The organization followed up by hiring an outside con sultant to conduct a voluntary annual survey of its arbi trator roster, generating information on members’ race, gender, ethnicity, age and LGBTQ status and making the results public.

And indeed, survey results indicate the organiza tion’s efforts paid off. When musician Shawn Carter (bet ter known as Jay-Z) alleged that the American Arbitration Association (AAA) could not fairly adjudicate a trademark

dispute he was party to because of its dearth of Black arbi trators, FINRA announced proudly that he would have been unable to levy the same complaint against its forum.

But, Iannarone wondered, is having a diverse arbitrator pool enough? Diversifying the arbitration roster, she explained, is a first step, “that doesn’t go anywhere if there is no opportunity for diverse arbitrators to preside over cases.”

Were these newer and more demographically rep resentative arbitrators actually being called to arbitrate any FINRA cases? As a Hispanic woman who recently joined FINRA’s roster and had not yet been called on to arbitrate a case, Iannarone had reason to wonder. And because FINRA awards are public information, she had the means to find out.

Since the roster was diversified, Iannarone explained, many “great new arbitrators” were added to the list. But the demographic information on each FINRA arbitrator is gathered privately and voluntarily and is not part of the public record. So, Iannarone needed a proxy for diversity. Because the diversification effort only began in 2014, “new ness”—measured as the year someone’s name first showed up on the roster—became that proxy.

“

I’ll see you in court!” It’s a timeworn cliché intended to capture that moment when negotiations fail, and the only remaining option is to fight it out in front of a judge or jury. But in the age of arbitration, that threat increasingly seems like a quaint relic of a bygone era.

If you’ve signed up for a credit card or cable television, made an online purchase or joined a gym, there’s a good chance you’ve agreed to mandatory arbitration without even noticing.

Kline Law professor Nicole Iannarone was appointed chair of FINRA’s National Arbitration and Mediation Committee (NAMC) in 2021.

Iannarone focused on the likelihood that someone would be selected as the sole arbitrator presiding over small dollar cases; to be eligible for those cases, arbitrators must have previous experience serving in larger-dollar, three-arbitrator cases. Smaller claims cases play a special role in investor protection, according to Iannarone, and inclusivity in those cases can have implications for levels of trust in securities markets.

For logistical reasons involving the intricacies of the arbitrator selection process, Iannarone deduced that FINRA arbitrator qualifications would make it difficult for investors with the smallest claims to have access to the newer, more diverse arbitrators. With decisions in hand from every FINRA arbitration filed from 2015 to 2019 with a value lower than $100,000 that resulted in a hear ing, Iannarone set out in 2020 to discover whether newer arbitrators were indeed being chosen to hear smaller claims cases.

Spoiler: They weren’t.

Salvaging the Pandemic Summer

The database Iannarone built comprised a vast array of categories—50 “fields” worth: who filed the claim; who the parties were; where the hearing was held; whether the party was represented by a lawyer, a law clinic or pro ceeded pro se; the outcome; and so forth.

The FINRA awards don’t identify the arbitrators who are newer to the roster, Iannarone explained, so determining that required looking at awards from both before and after the diversification process began to identify people whose names didn’t appear until 2015.

Iannarone got some unexpected help from the COVID 19 pandemic. When summer associate and internship opportunities for Kline students were cancelled for sum mer 2020, she explained, “Kline did a unique thing” to help students salvage their summers by implementing a faculty research fellows program.

At various times over the course of two summers, Iannarone employed as many as 10 Kline students to help

code and analyze massive amounts of data, giving them greater insight into arbitration and how it works, as well as first-hand experience conducting complex social sci ence research.

Aware that this was not always “the most stimulating work” for her fellows, Iannarone also thought back to what her law school summer work experiences had involved and set out to recreate them. To make sure her fellows obtained writing experience, she asked them to help her write arti cles, publishing three over the course of the two summers in the PIABA Bar Journal, as well as a paper based on a pre sentation that she made to securities arbitration lawyers hosted by the Practising Law Institute.

To provide networking opportunities, she first que ried her all-female fellows cohort about their professional interests and then raided her own contacts list to set up a series of Zoom meetings with “interesting, smart and accomplished women” working in those fields. Nobody turned down her invitation, she said. “All of us were trying to make connections when we couldn’t leave the house.”

Guests included federal appellate and district court judges, the head of a practice group at a major law firm, a senior SEC official and an in-house counsel for a Fortune 50 company. Iannarone’s efforts to salvage her students’ pandemic summers paid off. After her planned internship with the Philadelphia City Council fell through in spring 2020, Kaitlyn Barlow, JD ’22, signed up to work with Iannarone. She described her fellowship as like working in a “minifirm” of a dozen women.

And on the interview circuit, Barlow said, her sum mer fellowship with Iannarone was “one of the things on my resume I was asked the most about.” Following graduation, she joined Philadelphia firm Goldberg, Miller and Rubin.

Barlow’s classmate, Gabrielle Beers, JD ’22, who has signed on with the Philadelphia firm Wheeler, DiUlio and Barnabei, also valued her experience working on the arbi tration study. When the summer began, she knew little

When summer associate and internship opportunities for Kline students were cancelled for summer 2020, “Kline did a unique thing” to help students salvage their summers by implementing a faculty research fellows program.

about arbitration but now considers herself well-informed on the practice.

Now, Beers said, “I love arbitration and I hate arbitra tion at the same time.” While she appreciates that it’s is a more efficient and less expensive alternative to litigation, she finds it “alarming how few people know about arbitra tion… People always think you can sue.”

Experience Trumps Diversity?

annarone’s study, which has been published in the Washington Law Review, found that, despite FINRA’s good-faith efforts to diversify its arbitrator roster, the more newly recruited arbitrators had vanishingly small chances of hearing smaller claims cases. In fact, results indicated that arbitrators who first appeared on the roster in 2015 and after rendered fewer than one percent of decisions in smaller-claim investor cases.

The likely explanation? It’s the familiar catch-22 that you can’t get a job without experience, and you can’t get experience without a job.

Parties are advised to do their homework before select ing arbitrators from the FINRA-generated lists. FINRA advises this, attorneys advise this—in fact, when Iannarone has represented clients in FINRA arbitrations, she herself has given the same advice. Because awards are publicized, parties can uncover a lot of potentially useful information about arbitrators on the lists they choose from. “Do they grant punitive damages? Do they dismiss cases?” she said. “You can get a sense of how they are going to consider differ ent cases. You can call up lawyers and ask what they thought of arbitrators on their cases.”

Thus, newer arbitrators, she hypothesizes, simply aren’t getting enough experience because they don’t have records that can be researched, and parties are blindly striking them.

Over time, as arbitrators retire, parties will inevitably choose from the newer and more diverse cohort. But

in the meantime, Iannarone recommends FINRA con sider some additional interventions to speed up the inclusion process. One possibility would be to require that each list provided to parties be explicitly proportionally representative, for example, 30 percent of the arbitra tors on a list provided to parties must be women or mem bers of other underrepresented groups. Alternatively, FINRA could reconsider whether its own rules are making it more difficult for newer, more diverse arbitrators to serve.

Another possibility is actual bias. When they strike some arbitrators off their lists in favor of others, are parties and their representatives engaging in behaviors that reflect some degree of bias? FINRA doesn’t provide demographic data such as age and race, but names will often reveal gen der, and if parties are doing research anyway, they could uncover other characteristics.

“We need to study who is being stricken and why,” said Iannarone. “That’s a thornier issue. We recognize that you can’t strike someone from a jury pool because of their race. We don’t have those types of protections in this forum, and if bias is part of the selection process, means for perpetrat ing it should be eliminated.”

“I don’t have access to this data,” she continued, “Are parties routinely striking new entrants? Are they striking the same new entrants? If the answer is yes, why?”

Resolving this question and taking steps to make sure that arbitrators presiding over FINRA disputes are repre sentative of the small investor pool is critical to keeping the system functioning, said Iannarone. “I go back to the idea of trust,” she said. Echoing Jay-Z, she asked, “How can investors trust that FINRA is a fair forum in which they will get a fair shot when something goes wrong with their stock purchases if that forum doesn’t include anyone with a background like theirs?” ■

Nancy J. Waters is a freelance writer and editor, and managing editor of LEX.

White House Counsel Remus Urges Graduates to Be Flexible, Take Chances

For Dana Remus, delivering this year’s Kline Law commencement address represented a joyous homecoming. Remus, who stepped down from her position as chief White House counsel in June, was a member of the school’s founding faculty 16 years ago. And she could not be prouder of the school and her association with it.

“You are graduating from a dynamic, worldclass institution,” she told the assembled Class of 2022. On this “day of unbridled joy,” she assured the graduates that Kline has prepared them to “become the future leaders of our profession. And its community of two thousand alumni are ready to lift you up and support you.”

In addition to her stints at Drexel and in the White House, where she worked in the administrations of both Presidents Joe Biden and Barack Obama, Remus also served as general counsel to the Obama Foundation, a clerk to Supreme Court Justice Samuel Alito, an associate with Cravath, Swaine and Moore, and a professor at the University of North Carolina School of Law. But rather than share juicy D.C. war stories, Remus, known among insiders for avoiding self-promotion and working diligently behind the scenes, kept her focus squarely on the graduates and the roads rising up before them.

Some of those roads will be rocky. Alluding to the ongoing COVID-19 pandemic as well as political turmoil and economic instability both in the United States and across the globe, Remus described the challenges graduates will face as “daunting.”

“You graduate today,” she said, “in a world that is drastically different from that of fall 2019 when you matriculated.”

To manage those challenges and achieve fulfilling lives, Remus recommended that grad uates cultivate resilience in the face of what she called “the great unknowns” by being flexible

“You graduate today in a world that is drastically different from that of fall 2019 when you matriculated.”

Dana Remus, former White House counsel and a member of the Drexel Law School's founding faculty, addressed the Kline Law Class of 2022.

and taking chances when unexpected oppor tunities present themselves. Having a carefully mapped route is less important, she suggested, than a willingness to sometimes take the road less travelled.

From her own life, she cited joining the Drexel faculty and the Biden presidential campaign as two experiences that were not part of a plan.

“I’ve realized that there are advantages to not having a specific career goal. It’s meant that I’ve been open-minded to possibilities. It’s meant that I’ve taken unusual and not always linear opportunities,” she said. “I came to Drexel, an unaccredited law school, to start my academic career. I took a leave of absence from my aca demic career as things were going well and later gave up tenure. I joined a political campaign for the first time in my life, five months pregnant. In each instance I decided by what felt right, what felt inspiring, what excited me. And it worked out.”

She described her decision to come to the brand-new law school at Drexel as a “giant leap of faith.” To make that leap, she had to overcome the doubts of others, including her mentors, as well as her own.

“I had never taught before,” she explained. “I didn’t know if I had something to contribute.  …I have never been in my life as nervous as I was standing before my first class at Drexel.”

But, she continued, she “was excited and inspired by the idea of joining that founding group of faculty and students in doing some thing bold, brave and important—in creating

a law school that prepared students to graduate not just with knowledge of the law but an ability to immediately use the law in impactful ways.”

Adaptability and growth, Remus told the graduates, are not just good for careers and lives. They are, she reminded them, also bedrock principles of law.

“Like life, law should not be understood as static doctrinal endpoints,” she asserted. “The law is a work in progress, a medium that you, as Kline Law graduates, are specially equipped to shape moving forward.”

“Critical to maintaining law’s legitimacy,” she continued, “is making sure that the law is con stantly evolving to meet the moment, and at the center of that paradox is you.”

Graduates of Kline’s JD and MLS programs are, Remus believes, particularly qualified for “pushing the law to be more equitable, more com passionate and more responsive to the people you represent. That’s the kind of active lawyering that Kline Law is all about.”

Because of Kline’s “focus on real world experience,” she continued, “each of you have already touched lives through co-op programs, clinical opportunities and pro bono work. … Understanding that law is bound up in how it touches communities is exactly the kind of advocacy we need to meet these unprece dented times.” ■

“The law is a work in progress, a medium that you, as Kline Law graduates, are specially equipped to shape moving forward.”

Graduates Launch Black Law Alumni Association

Robert Suite, JD ’20, is the founder of the Black Law Alumni Association at Kline.

As president of the school’s Black Law Student Association and its Alternative Dispute Resolution team, Robert Suite, JD ’20, was a Kline Law student leader. As an alumnus, he is showing the same kind of drive to make good things happen at his alma mater.

Shortly after he graduated in the early days of the COVID-19 pandemic, Suite, a litigation associate with Fox Rothschild, came up with the idea for the Black Law Alumni Association at Kline (BLAAK). He turned first to Danielle Boardley, the school’s assistant dean for diversity, inclusion and student life, who helped him get the ball rolling.

With additional support from Dean Daniel Filler and Kline’s alumni relations office, Suite and Boardley have signed up seven alumni to serve on BLAAK’s board of directors and drummed up interest from 30 potential mem bers so far. The nascent board focused initially, according to Suite, on organizational tasks but recently began planning a slate of programs that will launch in the second semester of the next academic year.

“I want to make sure that this initiative is successful,” said Boardley, “and that they have the support from the law school that they need to be successful because it will only benefit the law school in abundance short term and long term.”

“The goal,” she continued, “is for alumni to be supported and to have opportunities to network, and also to give back through mentoring.”

To that end, BLAAK hopes to offer scholarships to incoming students, she said, as well as the kinds of supports that Suite and his fellow board members would themselves have appreciated during their student years. She also stressed that BLAAK will serve all Black alumni of Kline, including graduates of the school’s MLS program as well as the JDs.

In addition to a scholarship program, BLAAK is planning mentorship efforts to be implemented in conjunction with Kline’s Student Bar Association. “It will be BLAAK’s own entity,” Suite explained, “but will draw from the resources and connections that the law school and the students there have already developed as a means to foster that relationship between BLAAK and the law school community.”

The third planned initiative will be a spring conference or symposium, possibly with a CLE component, that will bring together alumni, students and faculty.

■

Center for Law and Transformational Technology Looks Back on a Busy First Year

Academic research centers often spend their first year consumed with organizing and planning, crossing t’s and dotting i’s, and deferring major activities. Not so for Kline Law’s Center for Law and Transformational Technology (CLTT ), whose leadership team wasted no time before implementing a student research fellowship program, a student board, guest lectures and four separate research projects.

The center, which launched last fall and is being supported through a startup grant from the Green Family Foundation, seeks to bring together key stakeholders from technol ogy, law and policy to study how the law and regulations respond to new and transforma tional technology—and vice versa. Professor Jordan Fischer, JD ’13, whose scholarship and teaching focus on data privacy and cyber security, is the center’s inaugural director.

For its first in-person public event, in November the CLTT welcomed David Zapolsky, Amazon’s senior vice president, general counsel and secretary. With Fischer moderating, Zapolsky provided insight into the legal challenges currently confronting the technology industry. He identified areas to watch at the intersection of law and technology, including how to operate multinational businesses across borders when laws and cultures conflict; how to ensure security, which he characterized as primarily a technical issue that has legal implications; how to protect customer privacy, which he called an “existential risk” for businesses because they depend so heavily on customer trust; and how to ensure that antitrust laws aren’t breached.

In the spring, the CLTT hosted lunchtime discussions on cybersecurity employment and on blockchain technology, bringing in industry leaders on both topics to discuss some of the practical challenges facing the public and private sectors.

Alumni Lead Programs in Finance

Also launched last fall, the CLTT’s Student Research Fellowship Program gives Kline students opportunities to work closely with affiliated faculty conducting research on emerging issues of law, technol ogy, policy and regulation. Fellows receive grant-funded stipends to support their work. In 2021–2022, the center welcomed two fellows, Suzanne Chang, JD ’22, and Hina Moheyuddin, JD ’22.

The center’s Student Board offers students another opportunity for hands-on involvement. Board members are helping develop and plan events, programs and the CLTT newsletter. For the 2021–2022 year, board members were William Kane, JD ’24, Liam Pagan, JD ’24, Brandon Robilotti, JD ’23, and Kate Stone, JD ’23.

Finally, the center actively supports the multidisciplinary research initiatives of its affiliated Kline Law faculty. The four current projects focus on risk management and design thinking; ethics and legal implica tions of artificial intelligence; genetic data and privacy; and immigration surveillance, technology and privacy.

“This is an incredibly evolutionary time in the law around privacy, data security and technology,” said Fischer. “Supporting thought-leadership on the role of law in the future of technology is critical. The CLTT is doing that by helping to drive collaboration and research development across a wide variety of technical issues and subjects.”

■

Jordan Fischer, JD ’13, is the director of the Center for Law and Transformational Technology.

“This is an incredibly evolutionary time in the law around privacy, data security and technology.”

CLTT Director Jordan Fischer moderated a discussion last November with David Zapolsky, the senior vice president, general counsel and secretary of Amazon. This was the center’s inaugural public event.

Is Seeing Believing? Conference Explores Visual Information and the Law

The eyewitness testimony that convicts or exonerates the suspect. The photos from the private detective that end the marriage. The video replay that tells us whether the ball was in or out. Seeing is believing and visual proof is the gold standard of evidence, right? Sure, until somebody posts a picture of a woman in a blue (or was it white?) dress and sets off an internet frenzy.

The challenges of interpreting what we see and of using visual information in the legal context were the topics of the “Picturing Truth” virtual conference hosted by Kline Law in March. The conference convened legal scholars and experts in photography and other visual fields to discuss topics ranging from the value of citi zen photojournalism to the ease of faking visual images to the challenges that memes pose to copyright law.

Catherine Zuromskis, an associate professor of photography and visual culture at Rochester Institute of Technology, kicked off the conference by noting the importance of citizen photojournalism, i.e. when ordinary people capture events on their phones and cameras, often as they happen in real time. She cited the catalyzing impact of the footage of George Floyd’s murder, captured by bystander Darnella Frazier.

Zuromskis also explored challenges to the idea of visual truth, telling the very meta story of a 2019 photo essay about the production of fake news that was itself a complete fabrication, a truth revealed only when the author himself created a fake social media account to question the book’s authenticity.

Katherine Biber, a law professor at the University of Technology in Sydney, focused on problems associated with the use of images as evidence in criminal trials. For example, cross-racial identification is notoriously unreli able because witnesses more often misidentify people from races different than their own. In

Charles Joseph Minard’s infographic “Losses from the Russian Campaign” (1869) conveys the human toll of Napoleon’s disastrous invasion of Russia in 1812 by depict ing the devastating loss of French forces. Boston College Law professor Zygmunt Plater called it “the best statistical graphic ever drawn.”

addition, the camera itself can produce distortions, and images can be taken out of context. “Law has never been adequately skeptical about photogra phy and its relationship with the truth,” she said.

Similarly, Christina Spiesel, a senior research scholar at Yale Law School, advised lawyers to be aware of the wide range of human responses to visual information, describing seminal studies that used eye-tracking devices to show how no two people approached an image the same way. “Lawyers need to know,” she said, “what their pic tures might say to others, because others can see them and form their own opinions.”

Two New York University Law School profes sors, Jeanne Fromer and Amy Adler, discussed the challenges that new visual forms are posing to another area of law. Meme culture, they argued, fundamentally upends the idea of copyright law, which was based on individual authorship. Because memes are participatory, evolve over time, and can have many different authors, they rarely elicit copyright claims.

Two presenters considered the ethics of visual images. Ariella Aisha Azoulay, a professor of modern culture and media at Brown University, condemned Harvard University for possessing nude images of an enslaved father and daugh ter from 1850, and failing to return them to their descendants. “These images were taken through violence and without the victim’s consent, thus Harvard should have no moral or legal claim to their ownership,” she said.

Julianne Newton, a professor of visual com munications at the University of Oregon, said that

photographers such as herself confront ethical issues when they photograph people candidly, but their subjects challenge the authenticity of a photo that they believe does not render them as they see themselves.

Newton and several other presenters also focused on visual deception. She noted the importance of visual forensics to determine the credibility of images, especially as conflicts and breaking news unfold. She credited The Washington Post for assembling teams of professionals to verify the veracity of photos by dissecting them pixel by pixel, using geolocation, looking for landmarks, cross referencing with satellite images and comparing other videos from different angles.

Siwei Lyu, a professor of computer science at the University of Buffalo, discussed the threat posed by “deepfakes.” Deepfakes use artificial intelligence programs to synthesize photographs, videos and even voice patterns that appear real. He presented several photos of individuals that were all complete fakes, as wall as a deep-faked video of President Barack Obama.

Deepfakes, he reported, are relatively easy to produce. In addition to the most obvious risk— that deepfakes will make people believe lies— Lyu said the opposite is also a danger: Deepfakes create plausible deniability in the face of truth.

Detection software can identify deepfakes, he said, but only after they’ve been uploaded, shared and have potentially spread their misin formation to thousands of people. Pre-emptive signals on social networks that recognize

Guy Buswell traced the eye move ments of viewers as they looked at pictures in this 1935 study.

The orange lines show their eye movement as they scan the image.

According to Yale researcher Christina Spiesel, Buswell’s studies revealed large differences in how images are interpreted, based on context.

deepfakes as they are uploaded would help, but deepfakers and those who would catch them are caught up in what Lyu called “a per petual cat and mouse game.”

“Fighting fake media and disinformation,” Lyu concluded, “is a community effort involving social platforms, government agencies, media and online users.”

Misinformation was also the topic for J. Scott Babwah Brennen, the senior policy asso ciate at the Center on Science and Technology Policy at Duke University. He described an email that was later debunked that went viral at the start of the COVID-19 pandemic in early 2020. Photos in the message, including a pic ture of its purported author (a bearded, whitehaired man) as well one showing body bags being thrown into a mass grave, were used to contribute to the message’s believability.

The most common types of misinforma tion involve public authorities, he said. He cited a fake document posted to Facebook announc ing a lockdown in Florida that included an official Florida state seal. Anyone with graphic design skills could have easily fabricated the seal, he said.

Amanda Cox, a former data editor at The New York Times, discussed the power of visual data to represent uncertainty. Visual data like graphs and charts help give meaning to complex numbers, but must also account for unknowns. She cited the Times’ use of a needle and dial during election night 2016 to represent how the likely winner of the presidential

race shifted over the course of the night as an effort to represent shifting probabilities.

For the symposium’s final event, a panel of three scholars, moderated by Amy Landers, a Kline Law professor, engaged in free-flowing discussion and fielded questions from the virtual audience.

Zygmunt Plater, a professor at Boston College Law School, described some notewor thy historical uses of visual data, including a crowdsourced map used by plaintiffs in one of the Massachusetts toxic tort cases depicted in the film A Civil Action

Joseph Miller, a professor at the University of Georgia School of Law, described his work on visualization data applied to citational law. He uses open-source mapping algorithms to visu ally represent linkages between cited cases as networks with hubs of large circles color-coded to illustrate how they relate to each other.

Finally, Alyse Berenthal, a professor at Wake Forest Law, discussed visual data as it relates to the environment and race. She argued that many photos of the environment have racialized elements. For example, images showing the vastness of nature are often portrayed without people of color. “Photography,” she said, “is espe cially influential in shaping the ways in which we see both landscape and race.” ■

“Fighting fake media and disinformation is a community effort involving social platforms, government agencies, media and online users.”

Alumni Lead Compliance Programs in Finance and Health Care

Lewia has served as senior compliance officer at JPMorgan Chase since 2019. In that capacity, he leads the bank’s Know Your Customer (KYC ) processes, which seek to protect financial institutions against fraud, corruption and money laundering. Previously, he worked for the bank in anti-money laun dering (AML ) compliance and before that in global trademarks operations at GlaxoSmithKline.

Lewia Frett, JD ’12 Chase & Co. Philadelphia,

U City maze  ( far left) by Tamara Shopsin and Jason Fulford.

Note: It’s a real maze! Jason has made mazes since elementary school. Have fun finding your way around Philly to Drexel.

Icons clockwise from the starting point at the top: Rocky Balboa’s steps at the Philadelphia Art Museum; falling woman from Henri Matisse’s The Dance at the Barnes Foundation; skull from the Hyrtl Skull Collection at the Mütter Museum; Rittenhouse Square with its centerpiece fountain; the manuscript of James Joyce’s Ulysses at The Rosenbach; the granite Sphinx of Ramses II at the Penn Museum; the Drexel dragon, of course; and finally a railroad sign for the 30th Street Station.

Kyree became director of privacy and regulatory compliance at Progyny, a leading fertility benefits management company, in 2019. In this capacity, he oversees the company’s regulatory framework and data privacy prac tices. He was previously a compliance and privacy officer at the O Insurance Group in Philadelphia.

Kendra has served as vice president of compliance for the Healthplan Services division of Wipro Limited, an international technology services and consulting company, since 2019. In this role, she is responsible for the company’s strategic approach to governance, risk and compliance, and processes and technology, among other areas. She previously served as a compliance officer for several health care plans and a hospital in the Tampa region.

For more than 10 years, Meryl has served in a variety of health care compliance functions. Since 2017, she has worked for Kaiser Permanente, one of the largest nonprofit health care plans in the United States, and is currently the executive director for Medicaid compliance. Previously, she worked for Independence Blue Cross and AmeriHealth Caritas, both located in Philadelphia.

Kyree Glenn-Odums, MLS ’17 Progyny Inc. New York,

Kendra Graham-Paulk, MLS ’17 Wipro Ltd., Healthplan Services

Tampa, FL Katz, JD ’09 Kaiser Permanente Oakland,

Cynthia became VP, director of asset management compliance and chief compliance officer of the registered investment advisers (RIA ) at Cincinnatibased Fifth Third Bank in 2021. She manages the compliance program across the bank’s several RIA affiliates. In her 12 years of industry experience, she has covered a variety of products, including a retail wrap program, model delivery, mutual funds and exchange traded funds. Previously she worked for Wilmington Trust in Philadelphia and WBI Investments in Red Bank, NJ.

Read more about Kline Law School alumni at drexel.edu/law/classnotes.

Cynthia Stroik, JD ’09 Fifth Third Bank Jersey City, NJ

Celebrating five years of LEX, the magazine of the Drexel University Thomas R. Kline School of Law.

Scan to read every issue of LEX in full at our online archive.