Kerry Abrams: Cited in the Supreme Court

This is the fifth in a series on scholars cited this term in the U.S. Supreme Court.

Kerry Abrams, a graduate of Stanford Law School, writes about immigration, citizenship, constitutional law and family law.

Congratulations on being cited in the Supreme Court.  What was the work and how was it used?

Justice Sotomayor cited my article, Plenary Power Preemption, 99 Va. L Rev. 601 (2013), in dissent in Mutual Pharmaceutical Co. v. Bartlett. The majority applied “impossibility preemption” to hold that federal law preempted a state design defect law that would have required a stricter warning label. Justice Sotomayor, joined by Justice Ginsburg, dissented, and cited my article for the proposition that impossibility preemption is rare, thereby characterizing the Court’s analysis as an unwarranted broadening of precedent. 

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

I do see the Court as a potential audience, although not the primary one. I write for lawyers, other law professors, litigants, legislators, voters, historians, political scientists, and cultural critics. I also think of students as an important audience, not only because they make publishing decisions but because their ideas about law are shaped by the articles they read and edit. I didn’t really think of the Supreme Court as the audience for the article Justice Sotomayor cited. That article was a response to the Arizona v. United States case the Court decided last year. I argued that even though the Court purported to be applying conflict preemption in striking down portions of Arizona’s immigration enforcement law, it was really applying a more robust form of foreign policy preemption that I dubbed “plenary power preemption.”  I chose that name because I think that the preemption analysis the Court used draws on the plenary power doctrine, the doctrine that gives the executive and legislative branches of the federal government nearly unfettered discretion over immigration law. I was really trying to bring an immigration law perspective to a wider audience of lawyers and legal scholars who might want to better understand the interaction between traditional preemption doctrine and the unusual deference courts give to the political branches in the immigration context.

Do you do anything in particular to share your work with practitioners?

I try to post my articles on SSRN in a timely fashion, because I find that some practitioners use SSRN as a search engine when looking for novel arguments not yet available in case law. I frequently hear from litigants and practitioners with questions about my work, and it’s almost always because they read it on SSRN. I’m also guest-blogging this month on Concurring Opinions, focusing on the effects the Supreme Court’s recent Windsor decision could have on same-sex couples seeking immigration benefits. I’m hoping that short blog entries will create a different sort of conversation with a broader range of people than law review articles generally do.

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

I think that sentiment reflects a very narrow view of what legal scholarship is. It’s true that most courts would rather cite to case law than to an amicus brief or a law review article, but that doesn’t mean that legal scholarship doesn’t help to shape legal discourse. I think of scholarship as engagement with law as a whole, rather than a focus on an individual case. Consequently, it’s less likely to be useful in deciding a nuts-and-bolts case than it is for thinking about cases that test the margins of doctrine. I also think of teaching as a form of scholarship. I use my classroom as a sounding board for new ideas: my students’ reaction to what I say shapes my thinking, and my take on the law shapes their thinking as well. I’ve had many former students contact me wanting to talk through issues they are encountering in practice, and it’s always gratifying to see my vision for the law slowly making its way into the world. 

Are you happy with the way your work was used?

Yes, I thought Justice Sotomayor had the better of the argument in Bartlett and was glad to be cited by her, even if in dissent. But, to tell the truth, the citation was a complete surprise to me. I had co-authored an amicus brief (arguing for a fundamental right to marry) in the Perry marriage equality case, and have written extensively on immigration, citizenship, and family law issues, so it wouldn’t have surprised me to be cited in a case related to my work. I wasn’t expecting to be cited in an FDA preemption case.

What advice do you have for scholars who want their work to be influential in the courts?

Read cases with an eye for what seems to be confusing or frustrating the judges. Law professors often spend so much time writing to each other and rehashing old debates that they miss the nagging problems that keep coming up in litigation or legislation.

 Did your family or colleagues do anything for you when the opinion case out?

My husband and colleague, Brandon Garrett, was excited about it – maybe even more than I was! The law school tweeted about it and put it on the school’s Facebook page, and that generated some comments from former students I hadn’t heard from in a long time.