Regulating Marginalized Labor, 73 HASTINGS L.J. 1041 (2022)

Farmworkers are one of many vulnerable groups who exist largely in the shadows of the law. While there is a relatively robust regulatory framework that ostensibly governs the conditions under which they work, it is highly fragmented and seldom enforced. One agency, the Equal Employment Opportunity Commission (EEOC), has emerged as an important exception, adopting innovative strategies to secure substantial settlements and a wide range of injunctive relief. Decades before contemporary movements on behalf of low-wage workers of color began, the EEOC was mounting an initiative to bring farmworkers into the core of Title VII’s protections and jurisprudence. Drawing upon an original database of EEOC farmworker litigation and interviews with both EEOC employees and farmworker advocates, this Article provides the first empirical analysis of the agency’s groundbreaking initiative over the past two decades, which has escaped the attention of legal scholars.

Conventional accounts of the EEOC portray an agency hampered by managerialist,
bureaucratic approaches that do little to combat systemic discrimination. By contrast, I
argue, the Commission’s farmworker initiative evinces a carefully tailored, creative approach that has enabled it to surmount many of the bureaucratic obstacles that have hindered other agencies in this context. At least two features were critical to its success. First, the EEOC’s de-centralized, entrepreneurial structure permitted this initiative to diffuse from the bottom up within the agency and helped to insulate it from oscillation across administrations. Second, its unique and sustained partnerships with advocacy organizations enabled the Commission to respond effectively to the needs of this isolated, vulnerable population. These findings contribute to a growing literature on how to entrench the enforcement of civil rights within administrative agencies. This Article further echoes the call to reinvigorate the enforcement apparatus of the federal government. As it suggests, the EEOC’s trajectory provides insight into how to develop a more robust vision of public enforcement in the context of marginalized communities like farmworkers.

Learning to Detain Asylum Seekers and the Growth of Mass Immigration Detention in the United States (with Smita Ghosh)46 LAW & SOCIAL INQUIRY 993 (2021)

Drawing upon an analysis of congressional records and media coverage from 1981 to 1996, this Article examines the growth of mass immigration detention. It traces an important shift during this period: while detention began as an ad hoc executive initiative that was received with skepticism by the legislature, Congress was ultimately responsible for entrenching the system over objections from the agency. As we reveal, a critical component of this evolution was a transformation in Congress’s perception of asylum seekers. While lawmakers initially decried their detention, they later branded them as dangerous. Lawmakers began discussing asylum seekers as criminals or agents of infectious diseases in order to justify their detention, which then cleared the way for the mass detention of arriving migrants more broadly. Our analysis suggests that they may have emphasized the dangerousness of asylum seekers to resolve the dissonance between their theoretical commitments to asylum and their hesitance to welcome newcomers. In addition to this distinctive form of cognitive dissonance, we discuss a number of other implications of our research, including the ways in which the new penology framework figured into the changing discourse about detaining asylum seekers.

Judicial Deference and Agency Competence38 BERKELEY J. INT’L L. 161 (2021)

While there is consensus among practitioners and scholars alike that immigration adjudication is in a state of crisis, very few studies have examined the role that federal courts play in reviewing this system. This Article focuses on asylum appeals at the federal appellate level and constructs an original database of cases across five circuits over seven years. It reveals that the federal Courts of Appeal have created a wide variety of court-fashioned rules that serve to either expand or constrict the scope of judicial review, with important implications for the likelihood of remand. As this analysis demonstrates, the elasticity of the appellate review model permits this wide variation, as courts applying a nearly identical standard of review reach starkly different results. This Article argues that the more expansive approach to review is normatively beneficial, as we ought to have an appellate review model that permits courts to be responsive to evidence of an agency in crisis. This is particularly compelling in the context of asylum seekers, as their lack of political power has enabled both a long history of politicization of the adjudication process and a disregard for quality assurance initiatives within the immigration agency. Since larger changes aimed at addressing the underlying flaws at the agency level are unlikely to be forthcoming soon, federal courts may be the only institutions equipped to meaningfully address problems within asylum adjudication.

Works in Progress

Law Clerk Diversity in the Federal Courts (with Justice Goodwin Liu and Judge Jeremy Fogel)

The lack of diversity among federal law clerks has been the subject of much scrutiny in recent years, taking center stage in congressional hearings, the legal academy, and the judiciary itself. However, other than Tony Mauro’s work on clerk diversity at the Supreme Court, no scholarship has empirically examined this issue. This study provides a first look at diversity in law clerk hiring at the Courts of Appeal, drawing from data collected through interviews with fifty federal appellate judges. These interviews explored judges’ approaches to hiring, their views of diversity along a broad range of dimensions, and the means by which they sought to achieve their goals. In this Article, we illuminate the process by which some judges have achieved greater diversity in their chambers.

Judicial Decision-Making and Implicit Bias (with Judge Jeremy Fogel and Jason Cantone), chapter in Handbook of the Psychology of Legal Decision-Making, Cambridge University Press (invited contribution, forthcoming 2022)

This chapter forms part of a reference book that presents readers with the foundational topics in the area of legal decision-making. Focusing on the psychology of judicial decision-making, our chapter highlights the ways in which implicit and explicit bias, heuristics, and other cognitive processes can affect decision-making.

Practice-Oriented Works

Chapter, Elevating Your Game, American Bar Association Section of Litigation, 2010 (a book addressing the lack of diversity among lawyers in senior leadership positions)

Attorney-Client Privilege and Work Product Doctrine-Protecting the Privilege: What Is It, Who Has It, and What Happens If You Waive It Good-Bye? (with Christina M. Tchen), Practicing Law Institute, Federal Civil Practice 2006 (updated version published in 2007)

Attorney-Client Privilege and Work Product Doctrine-Protecting the Privilege: What Is It, Who Has It, and What Happens If You Waive It Good-Bye? (with Christina M. Tchen), Practicing Law Institute, Federal Civil Practice 2006 (updated version published in 2007)