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Below are the 20 most recent journal entries recorded in Adam H. Morse's LiveJournal:

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Sunday, January 29th, 2006
12:33 pm
Victory in Judicial Elections Case!
On Friday, Judge John Gleeson of the Eastern District of New York decided a case that I worked on extensively. He struck down New York State's system for electing Supreme Court Justices, which is to say trial court judges in the court of general jurisdiction. New York used partisan elections but with no primary elections. Instead, the parties nominated candidates through a unique convention system that allowed the party leadership to simply pick the nominees. The Brennan Center brought a suit challenging that system on behalf of a would-be candidate for Supreme Court and a group of voters. We argued that the system violated the First Amendment rights to participate in the election-- NY doesn't have to elect its judges, and doesn't have to give parties a role in nominating candidates, but if it does, it has to give rank-and-file voters a meaningful voice in that system. Judge Gleeson agreed with us on essentially everything, both factually and legally, and has ordered New York to provide primary elections (at least until the legislature implements a new, constitutionally sound procedure).

I spent several months working almost exclusively on this case. It's a terrific feeling to win big. Of course, the other side may appeal. But winning at the trial court level is a huge first step. The opinion is available from the Brennan Center's website at http://www.brennancenter.org/programs/downloads/lopeztorres/lopeztorres-decision.pdf
Saturday, March 27th, 2004
10:39 am
Banks v. Dretke
Banks v. Dretke, No. 02-8286. Justice Ginsburg wrote the majority opinion, which the Chief Justice and Justices Stevens, O'Connor, Kennedy, Souter, and Breyer joined in whole and Justices Scalia and Thomas joined in part. Justice Thomas wrote an opinion concurring in part and dissenting in part, which Justice Scalia joined.

Capital cases produce an uusual amount of litigation, both during the trial and direct appeal and during collateral proceedings. This case addressed a habeas challenge to both the death sentence and conviction of the petitioner in state court. The prosecution promised before trial that it would provide all of the discovery that the defense was entitled to without litigation. In reality, the prosecution failed to turn over several transcripts that would have provided substantial impeachment value to the defense; moreover, the prosecution failed to take action when its witnesses perjured themselves, with the defense unable to demonstrate the perjury because of the insufficient discovery. Unfortunately, none of this came out until many years later on the petitioner's habeas petition in federal court. The district court concluded that the evidence warranted a writ of habeas corpus, but the Fifth Circuit thought that the danger of a wrongful execution was outweighed by the importance of procedural rules and reversed. The Supreme Court granted certiorari, reversed the decision to not invalidate the death sentence, and remanded for further proceedings on the issue of whether the conviction should be invalidated.

The Majority Opinion

Justice Ginsburg began by reciting the facts and procedural history. In 1980, a 16 year old boy was killed by three gunshots. Attention quickly focused on 21 year old Banks, who had been walking with the victim prior to his death. Following a call from a confidential informant, the investigating officers followed Banks to Dallas and stopped him on his return trip. They found a gun in his car and arrested the occupants. Returning to the the residence that Banks had visited, they spoke with another person and recovered a second gun, which forensic evidence showed to be the murder weapon.

During preliminary proceedings, Banks's defense counsel asked for the identity of the informant. The prosecution refused to answer but later stated that it would provide all legitimate discovery without requiring litigation. At Banks's trial, witnesses told of seeing Banks with the victim and then hearing gunshots. Cook, the witness from whom the police recovered the murder weapon, testified that Banks had stayed with him for several days after the murder, arriving with blood on his leg. Cook quoted Banks as saying the blood was from when he "kill[ed] the white boy for the hell of it." Cook also said that Banks confessed to stealing the victim's car. Cook testified that after a few days, Banks left by bus, leaving his gun behind, and that he then returned on the day of his arrest to request the return of the gun.

On cross, Cook denied having received any coaching prior to his testimony. In truth, however, Cook had at least one intensive coaching session where the lead investigator and prosecutors worked with him on developing his testimony. Far from correcting the perjury, the prosecutor argued in summation that Cook had told the jury "absolute truth."

The prosecution's other key witness, Farr, testified that he traveled with Banks to Dallas to retrieve Banks's gun. The defense asked whether Farr had been paid by the police for information, but Farr perjured himself by testifying that he had not and that he hadn't talked to anyone about the case until a few days before trial. The state did not correct this perjury. In reality, Farr was the paid, confidential informant who told the police about Banks's trip to recover the gun. He was afraid that if he didn't cooperate, the investigators would pursue drug charges against him. When the police asked him to help recover the murder weapon, he demanded money, and was paid $200 to, in his own words, "set [Banks] up." He told Banks that he wanted the gun to rob a pharmacy for drugs, and Banks agreed to supply him with a gun.

The defense presented no evidence and the jury convicted Banks of murder in the course of a robbery. Under Texas law, that is a death-eligible crime, so the jury proceeded to consider the penalty, after considering further evidence. The critical question was whether there was proof beyond a reasonable doubt that Banks would commit further crimes of violence. The state presented two witnesses on that question. The first testified to an incident where Banks struck him in the head with a pistol and threatened to kill him. The second witness was Farr, who testified that Banks had said that he would "take care of any trouble" in the armed robberies they were ostensibly planning. Again, the prosecution remained silent when Farr perjured himself on cross, denying that he told the police about the trip to Dallas and denied that he was concerned about possible drug charges against him.

The defense impeached Farr, but only with witnesses who were themselves impeached. In particular, a former police officer testified that he had previously used Farr as a paid informant and had found him unreliable. The prosecution, however, elicited an admission that the officer had a pending application for employment with the defense attorney's private investigator.

Banks's family and friends testified that he was a "respectful, churchgoing young man." He also took the stand, testifying that he had never been convicted of a felony. He admitted having struck the first prosecution witness and travelling with Farr to get a gun, but he denied ever having planned on participating in the robberies, a denial that Farr's admissions long after trial proved to be true.

In summation, the prosecutor argued that Banks had lied, claiming that he wouldn't have travelled 200 miles to supply someone else with a gun for a crime that he wasn't involved with. He relied on Farr's testimony, stating that the "taking care of trouble" comment demonstrated a willingness to commit further murders, and that Farr had been completely open and honest.

The jury sentenced Banks to death. The Texas Court of Criminal Appeals, the state court of last resort for criminal matters, affirmed the conviction and sentence on direct appeal in 1984. After two irrelevant state motions for postconviction relief, Banks brought a claim that the prosecution had withheld evidence that Farr was a police informant and information about the deals that the prosecution cut with Cook to elicit his testimony. The state denied withholding any information and the state court denied postconviction relief. Banks then brought the current claim in federal court. Eventually, Banks was able to procure affidavits from both Farr and Cook in which they admitted their lies. The magistrate judge ordered discovery and an evidentiary hearing. The discovery resulted in the disclosure of a 74 page transcript of a coaching session between Cook and the police. While the transcript did not include evidence of a deal, it did include numerous examples of the police coaching Cook on how to solve "problems" with his testimony. A prosecutor denied that Cook had ever been offered a deal in exchange for his testimony. The police investigator also testified and admitted for the first time that Farr had been a paid informant of his.

The magistrate judge recommended granting habeas relief as to the sentence, but not as to the conviction, based on the government's suppression of Brady materials about Farr and the "dismal" performance of Banks's trial counsel during the penalty phase. The district court agreed and rejected Banks's arguments based on the suppression of the Cook transcript on the procedural ground that Banks's habeas petition had not raised the issue. The petition did not, of course, because the state did not divulge the transcript until 1999, three years after Banks filed his petition. The Fifth Circuit reversed the writ of habeas corpus on the death sentence on procedural grounds, in an unpublished per curiam opinion. The Fifth Circuit held that even on the Farr evidence, relief was barred by Banks's failure to exercise sufficient diligence in developing the evidence for his state court proceeding. The court also concluded that the evidence about Farr was not material, because Banks had already presented evidence impeaching him as a police informant. The Supreme Court stayed the execution and granted certiorari.

Justice Ginsburg began by noting that the Antiterrorism and Effective Death Penalty Act (AEDPA) did not apply to this case because Banks's claims predate its passage. AEDPA substantially raises the procedural barriers to habeas relief. The majority opinion then considered the Farr claim and the Cook claim separately. Beginning with Farr, the Court started with whether Banks had, as required, exhausted his state court options for remedies. Under Brady, the prosecution cannot constitutionally withhold material evidence that tends to reduce a defendant's culpability, regardless of good faith. In order to prevail on a Brady claim, a defendant must show that the evidence is favorable, was suppressed by the prosecution, and that prejudice ensued. In order to bring a habeas claim that was not fully raised in state court, an inmate must show good cause for not having presented the evidence there and prejudice. When the claim is of a Brady violation, the second two prongs of the Brady test parallel the "cause and prejudice" requirements. Because the fact that a witness was a paid informant is favorable to the defense, as it tends to impeach the witness's testimony, the only questions were whether Banks demonstrated sufficient "cause and prejudice."

As to cause, a defendant shows cause for failing to raise a Brady issue when the prosecution encourages the defense to rely on its "open file" policy, fails to disclose evidence, and denies any omissions from disclosure in the state habeas proceeding. Because Banks's case tracks those three requirements precisely, he demonstrated cause. Furthermore, the majority noted, his case was even more extreme than required because of the failure of the prosecution to correct perjurious testimony at trial. The Court rejected any requirement that Banks should have investigated further by locating Farr and eliciting testimony from him, because the defense can reasonably rely on assurances from the prosecution. Justice Ginsburg scorned the notion that the prosecution may lie and the defense must demonstrate those lies in a system based on defendants' due process rights. The state also argued that Banks should have sought investigative assistance in the state court proceedings, but Justice Ginsburg dismissed this as a simple variation of the first issue. Besides, a state court would be unlikely to provide any assistance based solely on the defense's allegations when contradicted by ongoing false denials by the prosecution. The majority also rejected any reliance on precedents that allow the police to conceal an informant's identity, because those precedents do not apply when the informant is called as a witness.

The majority then turned to the question of whether the evidence was "material." The question under the relevant precedent is whether the new evidence puts the whole case in a different light, undermining confidence in the verdict. The question is only whether the defendant showed a reasonable probability of a different result. Farr's evidence was central to the penalty phase. In particular, the prosecution relied in its summation on Farr's testimony that Banks was willing to participate in another crime, not on his admission that he helded supply Farr with a gun. Because Banks had no prior record, Farr's testimony was essential to proving the propensity issue for the death penalty. The Court distinguished prior cases where the evidence had been amply corroborated and was mostly cumulative. Here, the evidence was central to the government's penalty phase case and the concealed evidence showing that the witness was a paid informant, in fear of conviction for his own crimes, and willing to perjure himself in multiple regards, went directly to the strength of the government's case. In light of those suppressions, the Court concluded that it was impossible to be confident that Banks received a fair trial in the penalty phase.

Justice Ginsburg then turned to the Cook evidence, in the section of her opinion for a unanimous Court. The lower courts did not consider this evidence because they considered it insufficiently plead in the habeas petition. In response, Banks argued that Fed. R. Civ P. 15(b), which treats a pleading as amended to incorporate issues tried by implied or actual consent of the parties, entitled him to treate the pleading as having been amended to cover the issues raised by the Cook transcript. The lower courts held that Rule 15(b) does not apply in habeas proceedings, but the Supreme Court disagreed. While AEDPA includes a requirement that the prosecution expressly waive procedural defenses, no such rule existed pre-AEDPA. Because the Fifth Circuit erred in not considering the Cook issue because of procedural grounds, the Court remanded for further consideration. The Court thus granted a writ of habeas corpus on the death sentence and remanded for further proceedings on the conviction.

The Partial Dissent

Justice Thomas wrote a brief dissent from the conclusion that withholding the Farr evidence prejudiced Banks. He argued that, while it was a close call, the jury would not have changed its opinion, because it was faced with evidence of a horrible crime and that the defendant had admitted that he was willing to supply Farr with a gun to facilitate Farr's violent crimes. As a result, Justice Thomas concluded that even if the jury totally disregarded Farr's testimony, it would have sentenced Banks to death, and thus Banks failed to show prejudice. While the dissent did not reach the issue of whether Banks showed sufficient cause, Justice Thomas stated his doubts, relying on the state's claim that it did not "knowingly" fail to turn over any evidence for the proposition that the state may have been unknowing in its failures, and that Banks should not have relied on that statement as much as he did. Justice Thomas also briefly dismissed Banks's ineffective assistance of counsel claim, which the Court did not reach.


This is an easy case. The only thing difficult about this case is figuring out how two justices could have gotten it wrong. Prosecutorial misconduct cuts to the heart of our confidence in the criminal judicial system. Nothing is more damaging to its integrity than a prosecutor permitting perjury by a witness who is in the employ of the police. In the same way that fraud statutes of limitations do not run until the fraud is or should have been discovered, when the prosecution fails in its obligations to disclose exculpatory information, courts should have little patience with procedural arguments that fault the defendant for failing to raise the issue earlier.

Similarly, the question of prejudice is easily resolved by the fact that the prosecution relied on the evidence in its summation. The prosecution clearly believed that the false testimony mattered, because it focused the jury's attention on it. While that could happen where the false evidence was simply the most extreme evidence in a huge pile of evidence, that was not the case here. A jury could reasonably conclude, if it knew all the truth, that the prosecution had been forced to rely on purchased lies because it could not actually demonstrate, with the high degree of confidence of "beyond a reasonable doubt," that Banks remained a danger. In any event, the consequences of granting relief are low: the state remains free to empanel a new jury for a new penalty phase. But the consequence of denying relief are very high. First, a prisoner may be executed under circumstances where a properly informed jury would have sentenced him to a lesser penalty, perhaps life without parole. Second, and at least as important, denying relief sends the signal to prosecutors that these sorts of games are acceptable. If one of your witnesses lies, go ahead and let 'em, because even if it comes out, the courts may let the conviction stand and the worst that happens is a new trial. On the other hand, if you correct the lie and your case is hurt, you're stuck with that result and don't get a second bite at the apple. That sort of incentive is a disaster. Prosecutors need to be the purest white knights, playing hard and zealously representing the state but turning perfectly square corners and living up to the highest ethical standards of the bar. In order to ensure that, prosecutors have to be confronted with heavy deterrence when they fail to live up to their obligations. I'm not even convinced that any test for prejudice provides enough deterrence. But even if some test for prejudice makes sense, to avoid the costs of retrying cases with overwhelming evidence, it should be limited to cases where the evidence is truly overwhelming.

Finally, it's worth noting the racial overtones, which the Court neglected. Cook testified that the defendant killed "the white boy." While the Court presented no evidence that he was coached on that, it's worth considering, especially because of the clear racial bias in the application of the death penalty to state-law murder cases: blacks who murder whites are vastly more likely to be executed than in other victim-offender race combinations. Testimony that brings the race of the victim to the attention of the jury is inherently worrisome, although it may be proper in cases like this where it represents a direct quote. Combining racially oriented testimony with evidence that the state coached the testimony and a failure to provide the defense with the evidence it needed to respond makes those worries far more troubling.
10:36 am
Lamie v. U.S. Trustee
Lamie v. U.S. Trustee, 02-693. Justice Kennedy wrote the majority opinion, which was joined by Chief Justice Rehnquist and all the associate Justices except for Justice Stevens and, as to one section, Justice Scalia. Justice Stevens wrote an opinion concurring in the judgment, which Justices Souter and Breyer joined.

Scrivener's errors are errors introduced inadvertently in the drafting of a statute when a staffer fails to write the law correctly and no one notices in time. Applying statutes with scrivener's errors creates a persistent problem: should the courts follow what the law says, or what Congress meant it to say? In this case, the Supreme Court addressed when attorneys can receive fees from a bankruptcy estate in a chapter 7 proceeding. Applying section 330 of the Bankruptcy Code despite the possible error, the Court affirmed the decisions of the courts below that attorneys are only entitled to fees if they have been appointed under section 327. Because the legislative history indicates that Congress was aware of the error, the Court's decision is correct.

The Majority Opinion

Justice Kennedy began by describing the statutory history. Congress amended the Bankruptcy code in 1994. Congress amended one of the provisions, section 330, and eliminated the phrase "or to the debtor's attorney" from the list of professionals who can receive fees in a bankruptcy proceeding. The new text is grammatically flawed, because it lacks a conjunction, and is not parallel with a subprovision's language, which retains the phrase "or attorney." Section 330 still allows compensation of an attorney who is "a professional person employed under Section 327." The circuit courts have split as to whether it still permits an attorney who is not employed under Section 327 to receive compensation.

Justice Kennedy then described the procedural history. The petitioner represented a firm in its chapter 11 proceeding, while the firm acted as a debtor-in-possession. After three months, the U.S. Trustee moved to convert the proceeding into a chapter 7 liquidation, and the court granted the motion. The petitioner had been acting under section 327, but he continued to represent the firm in the chapter 7 proceedings despite no longer being covered under section 327. He then filed for fees after the conversion to a chapter 7 proceeding, the trustee objected, and the bankruptcy court denied the fees, although he was compensated for his services during the chapter 11 proceedings. The district court and Fourth Circuit Court of Appeals both affirmed, noting that the plain language of the statute only provided for fees for attorneys appointed under section 327. The Supreme Court granted certiorari to resolve the circuit split.

The majority opinion started the analysis by reciting the petitioner's arguments for why the statute is ambiguous. The petitioner argued that the statute contains a clear error, because the lack of parallelism demonstrates that Congress either erred by deleting the first reference to attorneys or by retaining the second reference. He also argued that the missing conjunction demonstrated the existence of a drafting error that rendered the meaning of the provision ambiguous.

The Court rejected the analysis that ambiguity can be created by comparing the current statute's grammatical flaws with the unflawed statute before amendment. Instead, the Court reasoned, if the statute is ungrammatical but clear, its clear meaning should be applied. The missing "or" does not create any ambiguity because the word that should be included was obvious. While the text is not parallel, the second reference to attorneys can be sensibly interpreted as referring to lawyers who are professionals appointed under section 327. While it is surplusage, the preference for reading a statute to avoid interpretations that make some words surplus is weaker than the preference for applying the plain meaning of the words.

The Court also considered and rejected the suggestion that the statute was absurd under the appeals court's interpretation. The petitioner suggested that this would unreasonably eliminate the availability of attorneys for debtors in bankruptcy. However, attorneys for personal bankruptcies can still receive compensation under another provision, and attorneys who are properly appointed under section 327 by the trustee can still receive compensation under this provision. Prior to the Chapter 7 proceeding, the debtor can prepay for a lawyer's services. To avoid expanding on Congress's command, even if that command is harsh, the Court held that the statute should be given its plain interpretation.

Justice Kennedy then wrote another section, for a smaller majority of seven because Justice Scalia refused to join it. He noted that the legislative history adds more confusion, rather than clarifying the meaning of the provision. No legislative history explains the change, suggesting that it may have been a scrivener's error. However, other changes were apparently intended to reduce abuses in fee awards. Furthermore, while Congress took with one hand, it gave with the other, putting in a new section authorizing fee awards in chapter 12 and 13 personal bankruptcies, suggesting that the omission in the chapter 7 and 11 context was deliberate. In any event, the House passed the provision after the omission, and its effect, was drawn to its attention by a professional organization representing the attorneys most likely to be effected, which noted the change but did not object. In light of that history, Justice Kennedy concluded that the Court could not be confident from the legislative history, thus encouraging reliance on the plain text. If Congress did not intend this result, it retains the power to amend the statute.

The Concurrence in the Judgment

Justice Stevens wrote an extremely brief concurrence. He began by stating that when there is a possible scrivener's error, the courts should look to the legislative history to determine whether the error should be corrected through judicial interpretation. He then noted that the error, if any, was brought to the attention of Congress, which declined to correct it. Combined with the fact that the majority's interpretation is much more natural based on the language, he agreed that the petitioner's interpretation should be rejected.


The interesting question in this case is process. The justices followed three different approaches to dealing with a possible scrivener's error. Justice Scalia took the extreme position, although without writing separately: relying on the fact that the language could be sensibly interpreted without looking at the legislative history, he declined to consider it at all. Justice Kennedy took a middle route: while he says that the statute is unambiguous, and thus that examining the legislative history is unnecessary, he examined it anyway, and concluded that it did not provide a clear answer. Justice Stevens takes the most extreme approach in the other direction: because the text, while intelligible, suggests an error on Congress's part, he looked to the legislative history, but concluded that the legislative history supports the more natural interpretation.

Justice Stevens's approach is the strongest. Scrivener's errors raise a special problem of statutory interpretation, because effectuating the will of the legislature can be at odds with giving effect to the text as its actually written. Justice Scalia's approach treats this as a highly formalist game. If Congress makes an error, too bad for them: an error introduced by sloppy editing is the same as a formal policy choice, carefully made. I think this misstates the courts' role in interpreting statutes. Courts should seek to effectuate the will of the legislature. When the text is clear, it should be followed. But where there is evidence that Congress simply screwed up, forcing Congress to take action is pointless. It's true that Congress can fix its errors, but that's true either way. The question is which side of the question should be given the tremendous advantage of inertia. After all, this circuit split persisted for years: one of the sides was wrong, but Congress, because of the demands on its schedule and possible splits of opinion, did not correct either interpretation. Allowing an error by a staffer to shape the law until Congress musters the will to act serves no sensible purpose. However, once Congress was made aware of the possible error before passing the law, that analysis falls apart. If it was a scrivener's error, it's safe to say it would have been fixed before the law was passed; at the drafting and debate stage, fixing an error has relatively low costs. As a result, the statute should be given its straight-forward reading, because Congress ratified any possible error through inaction.
Monday, March 15th, 2004
6:35 pm
The Iraqi Interim Constitution, part one
Iraqi Interim Constitution

As most people who follow the news probably know, the Governing Council of Iraq recently signed the "Law of Administration for the State of Iraq for the Transitional Period," better known as the interim constitution. I believe that it is now a binding document, although it does not go into force until 30 June 2004. Because it's an important issue, and because institutional design is an inherently interesting topic, I'm posting a discussion of the document. I should note that I have no expertise in Iraq; at best, I'm a reasonably informed layperson when I talk about the Middle East in general. I may miss the significance provisions; for example, a few sections repeal laws and decrees from the Hussein period, and I don't know what those laws did. But I do specialize in constitutional law, so I'll provide what analysis I can. For anyone who wants to check it out, the full text of the English translation of the interim constitution is available on the Coalition Provisional Authority's website.

Overall, the interim constitution is very positive. It has at its heart a core commitment to pluralistic democracy. It guarantees expansive rights and liberties, including requiring gender-equality, condemning racism, and guaranteeing rights of free speech and freedom of religion. Equally importantly, it provides remedies for violations of those rights. On religion, it describes Islam as the official religion, as "a source" for legislation, and forbids legislation contrary to the universal interpretation of Islam. At the same time, it provides extensive guarantees for adherents of minority religions and rejects sectarianism among Islamic sects. The constitution shows the influence of American constitutional law clearly. While it deviates in some major ways from American constitutional law, the drafters borrowed liberally from concepts that were viewed as useful. All in all, it would be a good constitution to live under, although I'm concerned about the vagueness of the election provisions. The great question is how much of the liberal democratic values that it embodies will be carried over into the permanent constitution. That question will determine whether the interim constitution is a great step forward.

I will follow the structure of the Law itself in my analysis. The Law is structured into nine chapters, which are subdivided into 60 articles, and a preamble, which "is an integral part of this Law." The first chapter lays out the fundamental principles underlying the Law. The second chapter is a bill of "Fundamental Rights." The third chapter provides an overview of the transitional government and a variety of principles that apply to all of its branches. The fourth through sixth chapters describe the legislative, executive, and judicial branches of the Iraqi government. The seventh chapter provides for the continuance of the Iraqi Special Tribunal, which has jurisdiction over crimes against humanity committed by Iraqis between 1968 and 2003, and some other special commissions. The eighth chapter provides for regional, governorate, and municipal governments. Finally, the ninth chapter governs the transition to a permanent constitution.

Chapter 1- Fundamental Principles

The first chapter contains some definitions, basic principles, and interpretive rules for the rest of the Law. It states that gender-specific language applies equally to men and women. It defines the transitional period, which is to run from 30 June 2004 with the formation of a fully sovereign Iraqi government until the adoption of a permanent constitution, which is supposed to happen by 31 December 2005, although the Law includes provisions for failure. I don't have the expertise to comment on whether the schedule makes sense.

The Law is the "Supreme Law of the land" throughout Iraq, and cannot be amended without a 3/4 majority of the National Assembly and the unanimous consent of the Presidency Council. Furthermore, it cannot be amended to abridge the rights set forth in Chapter Two, to extend the transitional period, delay the holding of elections, reduce the powers of regions or governorates, or "affect Islam, or any other religions or sects or rites."

The system of government is defined to be "republican, federal, democratic, and pluralistic," with the federal units based on "geographic and historical realities … and not upon origin, race, ethnicity, nationality, or confession." The armed forces are placed under civilian control, and the Transitional Government is required to end the vestiges of the Hussein government's oppressive acts.

Article 7 contains the crucial language about the role of Islam. Islam is the official religion of the state and is "a source of legislation." That language is a very moderate statement about the role of Islam; Egypt's constitution, I'm told, states that Islam is the "primary source of legislation," and some people pushed for that language in Iraq. In any event, it's not clear whether this language has any real impact beyond hortatory value; inevitably, the religion of the majority of the populace will be "a source" for legislation. The next provision could easily turn into a major constitutional battleground: "No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in Chapter Tow of this Law may be enacted during the transitional period." There could easily be dispute over what the "universally agreed tenets of Islam" are. Taken literally, this would have little force; I'm sure that people assert a bewildering array of different positions as tenets of Islam, and anytime there's dispute it isn't "universally agreed." In fact, it's hard to imagine a majority Moslem country enacting a law that violates the "universally agreed" tenets of Islam. Of course, courts may conclude that universal agreement doesn't preclude disagreements that are simply beyond the pale. For example, if a similar provision mentioned the "universally agreed tenets of Christianity," would that be limited to Catholic positions? It shouldn't be, based on the text, but some Catholics would argue that Catholicism represents the only true interpretations of Christianity. But that position wouldn't be very tenable in a country with both a significant Roman Catholic population and a significant Eastern Orthodox population. But they might still argue that it excludes Protestants, who, in the views of some, have left Christianity altogether. Even if they were willing to include mainline Protestants, what about Latter-Day Saints? Or Unitarians? I don't mean to single out Catholics here; plenty of Protestants, mostly in the evangelical charismatic movement, argue that Catholics aren't really Christians. My point is just that there are plenty of Christians who would argue that, for example, a prohibition on homosexual conduct is part of the "universally agreed upon tenets" of Christianity. In fact, I believe that argument was made in the heresy trial of an Episcopalian bishop who ordained a sexually-active gay man as a priest. And plenty of other self-described Christians would argue that position can't be right, because we disagree with that tenet. The ecclesiastical court agreed when it acquitted the bishop. So while I mostly think that this language is reasonable hortatory language without much enforceable content, I worry that it may provoke lots of fights over its meanings and that those fights may have sectarian overtones. Many of my concerns are allayed by the fact that the next sentence "respects the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice."

The fundamental principles also recognize that Iraq is a country of many nationalities, but notes that the "Arab people in Iraq are an inseparable part of the Arab nation." This may also be empty verbiage without legal force. If it is enforceable, I have no idea what it means.

The fundamental principles close with a protection of language rights. The Law declares both Arabic and Kurdish to be "official languages," but also guarantees rights to teach other "mother tongues" such as Turcoman, Syriac, or Armenian to children in state schools, and the right to teach in any language in private schools. The official languages status affects both government proceedings and documents and guarantees the use of both languages in "settings enjoined by the principle of equality (such as bank notes, passports, and stamps)." I'm largely indifferent to official languages in general; I worry that they are used as a source of exclusion and discrimination against language minorities. At the same time, I worry about the proliferation of minority languages, because speaking the majority language has tremendous economic benefits by opening up huge opportunities. One of Iraq's most fundamental problems on a forward-going basis will be struggling with pluralism. If they're going to make it work, they need to ensure that major ethnic groups feel part of the nation. In that light, putting Kurdish on an equal footing with Arabic may be the right thing to do, and may be worth elevating both to an official language status. That's particularly true because the section has reasonable protection for smaller minority languages. I'm a little worried that Farsi isn't among the examples of "mother tongues," because that might represent anti-Iranian prejudice, but I haven't been able to confirm the size of the Iraqi Farsi population, except to determine that it's substantial but not huge.

Chapter Two: Fundamental Rights

Chapter Two includes an extensive list of fundamental rights. Many of the rights protected are interesting and worth mentioning. Equally interesting are the rights that are not protected, especially because this section is so obviously influenced by the United States Bill of Rights. The Chapter begins with a statement that both the national and all local and regional governments within Iraq will respect the rights of the Iraqi people. This is probably intended primarily to make it clear that the chapter does not only restrict federal action, in the way that the U.S. Bill of Rights only restricted federal action until the adoption of the Fourteenth Amendment.

The first substantive right is a guarantee of citizenship for any who "carry Iraqi nationality." Iraq has a long history of taking away citizenship from people or groups that the government disliked. Article 11 forbids this prospectively, by stating that no Iraqi may have citizenship withdrawn or be exiled except for lying during a naturalization process. The Article also restores citizenship to all Iraqis who lost citizenship because of "political, religious, racial, or sectarian reasons" or because of acquiring another citizenship. The Article authorizes the National Assembly to pass laws pertaining to citizenship and naturalization. This Article is crucially important because it undoes the various efforts to remove citizenship from disfavored groups. Prior discussions had suggested that the Governing Council might try to restore citizenship to all former citizens except for Jewish Iraqis. Approximately 250,000 Iraqis had their citizenship revoked because of their religious heritage. Including them among the other Iraqis whose citizenship is restored sends an important message about pluralism and inclusiveness. There are some forward-going questions that the Article does not clearly resolve. For example, if someone had his citizenship removed a long time ago, has moved to a different country, and has grandchildren whose only connection to Iraq is their grandfather, are the grandchildren entitled to Iraqi citizenship based on Iraqi nationality? I'm not sure. The fact that they are citizens of another country doesn't bar Iraqi citizenship, but it's a little unclear what "Iraqi nationality" means in cases like this. Also, it's unclear that this would forbid the existence of non-citizen resident groups. I'm not sure whether Iraq has similar groups, but many countries have substantial populations of non-citizens whose families have lived in the country for generation, because citizenship is considered tied to "nationality," where "nationality" is a code-word for ethnic or racial bias. The ethnically Turkish population in Germany and the ethnically Korean population in Japan are obvious examples. I would have ideally wanted a rule like the American rule: anyone born in the United States is automatically a U.S. citizen. A similar rule in the Iraqi case would eliminate concerns about the existence or development of disfavored resident foreign populations. Nonetheless, that's primarily a concern for the permanent constitution, and the blanket reversal of all of the citizenship deprivations is an important step forward.

The next Article is a strengthened version of the Equal Protection and Due Process Clauses. It states that "All Iraqis are equal in their rights without regard to gender, sect, opinion, belief, nationality, religion, or origin, and they are equal before the law." It prohibits discrimination on the basis of gender, nationality, religion, or origin, although curiously "sect" and "belief" are not repeated. It also guarantees a right to life, liberty, and "the security of his person." The Article also forbids deprivations of life or liberty "except in accordance with legal procedures." Many things about this Article are interesting. First, its protected classes are very broad; U.S. law permits some gender-based discrimination, although some states have equal rights amendments and gender-based classifications need to serve "important" government interests. Article 12 appears to offer broader protections. As a strict-egalitarian, I'm very glad to see that protection, especially because one of the grave concerns about Iraq is whether women will be treated with equal respect and rights under the new regime. I'm curious about the use of the term "gender." Although legal usage is not consistent, "gender" is typically used by academics to cover a wider range of issues than physical sex. Discrimination on the basis of self-perceived sex identity or sexual orientation would frequently be described as falling under the general rubric of "gender discrimination," even though some would argue that it isn't strictly speaking sex discrimination. I'm curious whether "gender" is an accurate translation, or whether the protection is limited to prohibiting sex discrimination. It's quite possible that it's ambiguous even without the translation.

Another interesting point is in the "Legal Procedures" clause. By referencing deprivation of life in accordance with legal procedures, it implies that capital punishment is constitutional. Capital punishment is very common in the Middle East, and it's unsurprising that a U.S. influenced Middle Eastern constitution would permit it, but it's still notable. Finally, it's notable that the anti-discrimination clause doesn't have an explicit state-action requirement. In American law, the Equal Protection Clause only protects against discrimination by the government, although a variety of statutes provide protection against private discrimination in employment, housing, and public accommodations. But the American Equal Protection Clause is phrased as "No State shall…" Especially because the Law was written with a clear familiarity with American constitutional law, this raises the question of whether the anti-discrimination clause is intended to sweep more broadly, prohibiting private as well as public discrimination. It could be argued that the first article of Chapter Two limits its effects to public action; also, the right of redress later in the Law is limited to government officials. But it's an interesting question, and I don't think the text of the Law makes the answer clear.

Article 13 protects a variety of "public and private freedoms." In addition to the blanket statement that "public and private freedoms shall be protected," Article 13 protects freedom of expression, peaceable assembly, including unions and political parties "in accordance with the law," freedom of movement throughout Iraq and to travel abroad and return, a right of demonstration and of peaceable strikes, a right to freedom of "thought, conscience, and religious belief and practice," a prohibition on slavery, the slave trade, and related practices, and a right to privacy. This amendment protects many of the key freedoms for a democratic, free society. Democracy cannot flourish without strong protections of assembly, speech, and demonstration, so those rights are basic to a democratic Iraq. The protections for unionization and striking are quite broad; while there is the "in accordance with the law" weasel language, there is also a universal right to strike, which stands in sharp contrast to American practice, where various types of strikes are illegal, including sympathy strikes, striking the suppliers and customers of a firm targeted by a strike, general strikes, and strikes by most public employees.

This is also a good place to note how broad the religious protections are. Religious practice is protected as well as religious belief. The American Free Exercise clause has been interpreted stingily, to protect religious beliefs while still allowing facially neutral laws to be applied even when they prohibit core religious practices. The classic example is the peyote case, where the Supreme Court upheld the application of drug laws even when they prohibited a small religious group from engaging in a core sacrament of its faith. A similar example is the nineteenth century prohibition on polygamy, which was directly targeted at the Church of Jesus Christ of Latter-Day Saints. It's worth noting that some scholars argue that the polygamy laws would have been struck if the issue came up today, because they were passed on the basis of anti-religious animus, in the same way that laws that were passed to ban animal sacrifice because of hostility to Santeria have been struck down. But the point remains that religious groups in the United States can have their core religious practices stamped out, as long as the government is simply applying a neutral law without providing a carve out. I think this approach is wrong, because it invariably leaves small religious groups less protected than large ones. Dry areas of the United States, and for that matter most of the country during Prohibition, routinely created exemptions for sacramental wine. When a majoritarian, or powerful minority, religion has its practices threatened, the legislatures create exceptions. But when it's a small faith, especially if it's a discriminated against or distrusted faith, no exceptions are made. By specifying that the religious protection includes "practice," the Law appears to be providing that important broader protection. This could easily come up in important practical cases: some regions of Iraq may well ban alcohol, in accordance with the Koran's injunctions, and the "practice" clause would presumably protect Christians who use sacramental communion wine. This reinforces my overall attitude towards the choice to establish Islam: while I'm disestablishmentarian, the important goal is protecting those who do not share the majoritarian religion from religious oppression. The strong, repeated language is very reassuring on that front. Of course, like any constitutional provision, whether it's worth anything depends on how well it is enforced.

The right to privacy also raises interesting questions. How far does that extend? What constitutes privacy? Is the Law endorsing the whole line of American privacy cases, including Roe v. Wade? I don't really know what this means. It's a good value to defend against governmental intrusion, but like any vague constitutional provision, it raises serious concerns about interpretation.

Article 14 includes a set of positive rights, in the sense of rights to goods that the people can demand from the government, as opposed to the negative rights embodied in the American Bill of Rights, which are rights that the government may not infringe. These rights include unqualified rights to security, education, health care, and social security, and a mandate that the government "shall strive to provide prosperity and employment opportunities," while taking into account resource issues and "other vital needs." Positive rights are common in many foreign constitutions and some state constitutions include rights to education and so forth. Including these rights provides a laudable set of expectations on the government and may deliver some concrete protections. The lack of educational guarantees in the American constitution has left some poor and disempowered communities with little recourse when politicians refuse to address failing schools. Still, positive guarantees are difficult to enforce, especially because they involve trade-offs. A right to education is important, but it's difficult for courts to judge whether a school is good enough to satisfy that right, especially when increasing teachers' salaries may be key to improving education but may also require reducing the money available for police, or raising taxes to preserve both. Those trade-offs are frequently left to legislatures simply because courts are ill-suited to balance the competing interests. Still, a basic right to security, education, and so forth makes sense and may prevent egregious failings. It's worth noting that egregious failures to provide education, especially for girls, are common in the Middle East, not to mention the frequent governmental violations of any notion of security under the Hussein regime. Trying to break that legacy may be worth risking intractable struggles at the margins.

Article 15 provides a variety of procedural rights, primarily in the criminal procedure context. It begins with a restriction on ex post facto laws: civil laws must expressly provide for retroactive force in order to be applied that way and criminal laws and punishments cannot be retroactive. The next section creates a search warrant requirement for searching private residences. The section describes the basic state of American Fourth Amendment law, including provisions for exigent circumstances. Interestingly, the law explicitly includes an exclusionary rule, making evidence found in the course of an illegal search inadmissible in connection with a criminal charge. The exclusionary rule includes an exception for reasonable, good faith errors, but also extends to excluding "fruits of the poisonous tree," which is evidence gathered as a result of information gained in an illegal search. Interestingly, there's no exception for inevitable discovery doctrines that sometimes allow in fruits of illegal searches in the American system. The Article also includes a prohibition on political or religious detentions and a right to a fair and public hearing followed by a fair, speedy, and open trial. The law includes many of the basic Miranda rights, including the right to be notified of the underlying rights: innocence until proven guilty, right to independent and competent counsel, right to remain silent with no compulsion to testify, and a right to summon and examine witnesses in defense. It also includes a ban on double jeopardy and on the use of military tribunals or exceptional courts to try civilians. The Law also bans torture "under all circumstances," including mental torture as well as physical, and "cruel, inhuman, or degrading treatment." Crucially, there is also a complete exclusionary rule for any confession made under "compulsion, torture, or threat thereof."

Article 15 hits all of the major points needed to have a fair criminal justice system. Including exclusionary rules is a good thing; while there are a variety of potentially valid criticisms about their use in the American system, there needs to be a strong incentive to not violate the underlying rights, and especially in a country without a strong tradition of rule of law, strong deterrence for government misconduct is appropriate. There are several interesting omissions, however. First, while there is a right to "engage" counsel, there's no textual provision for supplying counsel to defendants who cannot afford a private attorney. That raises serious concerns; in any modern criminal justice system, the advice of competent counsel is essential to receiving fair treatment. Without a Gideon right, many poor yet innocent defendants face a serious danger of convictions. Second, the right against self-incrimination lacks much of the elaboration that American courts have given it. For example, there's no textual description of attorney-client privilege. I'm skeptical of the merits of attorney-client privilege, except maybe on the theory that we don't want to disadvantage people whose attorneys play clean when we expect that many attorneys would routinely suppress evidence if there wasn't a privilege. But it's still an interesting omission. Similarly, it's very interesting that there's no prohibition on drawing adverse inferences from a refusal to testify. Under modern American law, judges instruct juries to not draw inferences from a defendant's refusal to testify. I suspect juries draw those inferences anyway, but they're told not to. That contrasts with the British system, which also has a right to remain silent but where judges instruct juries that they may draw conclusions from the defendants' decisions to not testify. Given a document that includes many doctrines, such as the exclusionary rule, that were created in the American system as judicial glosses on general prohibitions, the choice to omit this gloss becomes significant.

It's also notable that there's no right to jury trial. The lack of the jury trial may explain the lack of protection against presumptions based on refusing to testify, but it also raises interesting questions about how the exclusionary rule will work. Will they have one magistrate make the exclusion decisions while another, protected from the illicit information, makes the findings of fact? Or will they simply rely on the judges to "fire-wall" that information within their minds? Jury trials are only common in the Anglo-American common law tradition. Most civil law countries do not use juries for fact-finding, although some have limited roles for lay judges in some cases. I'm not surprised that they're not included as a right in the Law, but it's still worth noting.

The Law also does not include "proof beyond a reasonable doubt." Courts may read that into the principle that defendants are innocent unless proven guilty, and the U.S. Constitution also lacks a textual requirement of the high burden of proof in criminal cases, yet American courts routinely consider it to be a constitutional requirement. However, the lack of any discussion of the government's burden of proof in a criminal trial seems odd, especially in light of the more vague language that the Law does include to protect criminal defendants' rights.

Article 16 protects property rights. It includes a duty of all Iraqis to protect public property; I'm not sure what that's addressed to. It also includes a general right of alienability, by specifying that "no one may be prevented from disposing of his property except within limits of law." Again, there's weasel-language there, but promoting the alienability of property is important to developing a healthy market economy, which in turn will promote Iraqi prosperity. There is also a Takings clause: property may only be taken through eminent domain, according to law, and with a requirement of "just and timely" compensation. That strikes the balance right, in my opinion. Eminent domain is an important government power for preventing inefficiencies and for organizing effective markets by preventing hold-outs and breaking up monopolistic holdings. But a requirement of compensation reduces its danger as a sword to hurt disfavored or politically powerless groups. The Law doesn't address the American doctrine of "regulatory takings" at all. That seems like a poor choice; there are important policy concerns tied up in the doctrine, and I would have preferred to see it addressed. But those concerns are less likely to be significant in the early days of a new regime, so it may make some sense to avoid the question. In any event, the American doctrines are bizarre, complicated, and ill-considered, so I'm just as happy that the drafters did not seek to import the doctrine into Iraqi law. Finally, Article 16 includes a right for Iraqi citizens to own real property in all parts of Iraq without restriction. That's an important right, because it cuts against insular regimes and the notion that certain land inherently belongs to certain people because of historic patterns of ethnic control. At the same time, this is interesting because it implies that restricting foreign land ownership is legal. Land ownership is a touchy issue throughout much of the Islamic world, at least in part because of a history of abusive practices by European powers, but perhaps also related to various intra-Moslem struggles between ethnic groups over who would ultimately control the land. While I would prefer to see even foreign land ownership rights protected, this seems like a reasonable solution to address the fears and concerns of the population while still guaranteeing the ability of individual Iraqis to own property wherever in Iraq they please, regardless of the opinions of other ethnic groups.

Article 17 is the negation of one of the amendments in the United States Bill of Rights: it prohibits possessing, bearing, or trading in arms except on licensure. I'm not a fan of the Second Amendment as it is frequently interpreted by its supporters. The hope of defending against government oppression through armed resistance requires possessing serious military weapons, which inherently cuts against the ability to police safely. I like leaving the policy questions about how to balance self-defense concerns against public safety arguments to the legislature, so I like the way this Article reads. I have my own wacky interpretation of the Second Amendment as guaranteeing a right to participate in military service, and I think that interpretation is both sensible and wise. But I can't really fault the Law for not including some sensible ideas that are outside the mainstream of constitutional theory.

The next article sensibly bans taxation and fees that aren't created by laws. This seems like a pretty straightforward ban on a certain type of injustice.

Similarly, Article 19 prohibits surrendering or forcibly returning any political refugee who has been granted asylum according to law. This is a perfectly sensible protection, although the real meat of any asylum protection is the definition of who is entitled to asylum, which the Law does not address. This is a recurrent problem with the Law; it contains lots of good language, but with weasel-words and important questions lurking just below the surface. That's difficult to avoid in drafting a constitution, but it still sets off warning bells.

Article 20 guarantees fundamental voting rights, but again has the weasel-words. "Every Iraqi who fulfills the conditions stipulated in the electoral law has the right to stand for elections and cast his ballot…" But what will the electoral law say? That's a crucial question. For example, can people who have been convicted of serious crimes be deprived of the vote? That's a hot issue around the world; South Africa's constitutional court just struck down a law preventing prisoners from voting in elections. In the U.S., most states prevent prisoners from voting, and some ban people with felony convictions who have finished their sentences from ever voting again. Most of those laws were passed to disfranchise African Americans. Can the electoral laws ban people with convictions for serious crimes from voting? It's hard to tell from the text. Later, when the qualifications for office-holders are listed, it excludes people with convictions for crimes of moral turpitude. That suggests that it doesn't violate this constitutional provision, which after all applies to both standing for elections and casting a ballot. However, the Law also applies a minimum age requirement of 30 and a requirement that candidates must "have a good reputation." Could similar laws be applied to limit the franchise? Presumably some age requirement would be constitutional, because otherwise infants would be able to vote—there's no constitutional age requirement for voting. In any event, the weasel words worry me.

Still, the breadth of the guarantee is encouraging. Elections are required to be secret ballot, free, open, fair, competitive, and periodic, and the Law forbids discrimination in voting rights "on the basis of gender, religion, sect, race, belief, ethnic origin, language, wealth, or literacy." As a lawyer who works on a lot of constitutional cases designed to improve democracy, I'd love to be able to make claims based on the "Competitive Elections" Clause. The sweeping protections here are good and a lot better than anything in the text of the United States Constitution, which says remarkably little about democracy. I'll discuss my more general concerns with the need for more descriptions of how elections will function when I discuss the structural provisions of the Law.

The Law forbids the federal or local governments from interfering with the development of a civil society, "whether in cooperation with international civil society organizations or otherwise." Again, I'm not really sure what this is getting at. I think it's meant to protect Iraqis who want to work with international NGOs and the like, which certainly seems like a good idea. But I'm not sure if it has any consequences beyond that.

Article 22 provides a remedy for violations of rights guaranteed by the Law or by other laws in force. For people familiar with American law, it essentially incorporates 42 U.S.C. Sec. 1983 into the constitution. If a government official at any level of government deprives any individual or group of their rights, they have a right to bring a damage action seeking compensation, vindication of the rights, which I take to mean declaratory relief, and "any other legal measure," which I assume means injunctive relief, meaning a court order against future violations. Article 22 also incorporates what American law calls "qualified immunity": if a government official acts with a "sufficient degree of good faith and in the belief… that his actions were consistent with the law," he cannot be made to pay compensation. I'm troubled that this requirement doesn't have any requirement that his belief be reasonable, which the American qualified immunity doctrine does. While I wouldn't be surprised to see it read in by the courts, I would have preferred to see it included specifically, especially because courts may refuse to read in that requirement by comparing it to the "reasonably and in good faith" exception to the exclusionary rule in Article 15. It is also notable that the Law does not include a provision for fee shifting: one of the reasons Sec. 1983 has been so successful in constraining unconstitutional abuses by American government officials is Sec. 1988, which provides that defendants who lose cases brought under 1983 must pay the reasonable attorneys' fees of the plaintiffs. That produces a reasonable supply of lawyers to represent people with strong claims that their constitutional rights have been violated. The Law does not include a similar provision for plaintiffs who win Article 22 suits. However, some foreign countries allow fee-shifting in all cases. My understanding is that the United States is fairly unusual in forcing prevailing plaintiffs to bear their own legal expenses in most cases. If Iraq has a general fee-shifting rule, not including a specific one for these claims is to be expected.

Including Article 22 is tremendously important, because it makes the rights of the Law truly self-executing. Hortatory statements about rights are all well and good, but the real question is will government officials respect the rights. The threat of putting government officials personally on the hook financially provides a tremendous deterrent. That's particularly important because establishing a true rule of law is an essential part of Iraq's transformation into a democratic, functional nation. By providing a means for individual citizens to use the courts to constrain government abuses, the Law provides an important step forward. Whether the courts will actually give effect to the Law remains to be seen, but this is the right sort of text to include.

Finally, Article 24 parallels the Ninth Amendment, providing that the enumeration of some rights should not be interpreted as exhaustive. It then goes on to state that the Iraqi people enjoy "all the rights that befit a free people… including the rights stipulated in international treaties and agreements… and the law of nations." It also provides non-Iraqis with all "human rights not inconsistent with their status as non-citizens." I'm all for including a clause like this, especially because incorporating positive protections of human rights in international law into the constitution promotes the overall interest of human rights. The question of how to interpret vague language like this is as vexatious as ever, but there are serious risks in attempting to limit rights to those protected by a document: under changed circumstances, new rights may be widely recognized as fundamental yet left with no protection. Some argue that whether and when to recognize those new rights should be left exclusively to the political process. I'm less sure, and I'm reassured to know that the Iraqi government is binding itself to abide by international human rights conventions. The language about non-Iraqis is interesting. It provides most of the protection I would like to see. I have no objection to excluding noncitizens from voting, for example. I do expect that this will be read with the clause on land ownership to reach the conclusion that the Iraqi government can restrict ownership of land by foreigners, but that's not a tremendous loss, and if the government applies such a rule after permitting sales to foreigners, the eminent domain requirement of paying compensation would presumably still protect them.

At this point, it makes sense to mention some of the protections in the United States Bill of Rights that are not included in the Law's list of fundamental rights. As mentioned, the law establishes Islam as the state religion, but provides fairly extensive protections for minority religious groups, both within Islam and without. I suspect that it will have less tolerance for atheists, but even they have a reasonable argument for protection as a "belief." Article 17 essentially reverses the Second Amendment. There is no direct analog to the Third Amendment's prohibition on quartering soldiers in private homes during time of peace, although that might be read into the protections for the "sanctity of the house" and against deprivations of private property except by eminent domain. In any event, the Third Amendment's protection is really addressed to an 18th Century abuse that has little relevance to the modern world; it's not happenstance that the Supreme Court has never construed the Third Amendment's meaning in American law. As I mentioned before, there are no protections for jury trial. There is also no requirement that defendants be tried in the same district where the crime is alleged to have been committed, but that requirement is largely designed to effectuate the goals of jury trial. There's also no right to confront the witnesses against a defendant, although witnesses may be compelled to testify. Civil law countries typically place a much lower premium on live testimony in court, and the Law appears to reflect that attitude. The Law also has no prohibition on "excessive bail." Finally, there is no language similar to the Tenth Amendment, except for some language that I'll discuss later about the Kurdistan Regional Authority. In general, the federalism appears to be much more in the European model, where higher levels of government have the power to displace or compel lower levels of government, than the American system, which frequently checks the authority of the federal government to preserve the power of states. As a supporter of the European model of federalism, I think this is all to the good.

I will consider the structural provisions in Chapters Three through Nine in a separate post.
Sunday, March 14th, 2004
10:58 am
Fellers v. United States
Fellers v. United States, 02-6320. Opinion by Justice O'Connor for a unanimous Court.

The Sixth Amendment provides a right to counsel in criminal cases. This case turns on two questions: whether the police can have a discussion with a suspect about suspected criminal conduct after the right to counsel has attached without providing Miranda warnings and, if not, whether subsequent statements by the suspect tending to prove guilt are "fruits of the poisonous tree," which is one of my favorite colorful legal phrases. The Court of Appeals for the Eighth Circuit concluded that the initial, unwarned conversation was not a violation of the Sixth Amendment, because it was not an "interrogation," and thus did not reach the second question. The Supreme Court reversed the Eighth Circuit, and remanded for consideration of the second question.

The Opinion

Justice O'Connor wrote for a unanimous Court. She began by laying out the facts. A federal grand jury indicted the petitioner for conspiracy to distribute methamphetamine. The police went to his house to arrest him. Before they placed him under arrest, they informed him that they would like to talk with him about his role in the drug trade and that he had been indicted. They apparently did not directly question him, but told him that the indictment involved four others. Petitioner, apparently not the sharpest tool in the shed, proceeded to tell the police that he knew the other four and had used methamphetamine with them. After a brief conversation, the police arrested him and took him to the local jail. They gave him his Miranda warnings, he waived the right to have counsel present during the interrogation, and he repeated his earlier statements, and admitted having loaned money to one of his associates despite knowing that it would likely be used for the drug trade.

At trial, petitioner sought to have the initial statements suppressed as violations of his right to counsel and to have the jailhouse statements suppressed as fruits of the poisonous tree. Under most circumstances, evidence that is only discovered because of illegally obtained evidence is itself suppressed. The idea is that the police should have no incentive to conduct illegal searches and interrogations. Fruits of the poisonous tree is the traditional way courts and lawyers describe such secondary suppressions. The magistrate judge recommended suppressing all of the statements, but the district court concluded that the statements at the jail were made after a knowing waiver of rights and could be admitted. A jury found petitioner guilty and he appealed. The Court of Appeals concluded that the initial statements were admissible, because the police hadn't "interrogated" the suspect. The concurring judge disagreed, but agreed with the district court that the knowing waiver rendered the secondary statements admissible, and thus would have affirmed on other grounds.

Justice O'Connor only fully addressed the initial question of whether the police violated petitioner's right to counsel during the conversation at petitioners' house. She reviewed the standard cases on right to counsel. The right to counsel becomes active when judicial proceedings begin; because this conversation took place post-indictment, petitioner had a right to counsel. She stated the standard test of whether the police deliberately elicited the information. The Sixth Amendment does not bar the use of statements that are volunteered without any effort on the part of the police. But under the facts of this case, she easily concluded that the police had deliberately elicited the information. The statements at the house were thus the result of a Sixth Amendment violation.

Because the lower court concluded that the initial statements were not the result of a constitutional violation, its analysis of whether the later statements were fruits was based on a faulty premise. The Supreme Court has not settled the issue of whether statements made after a waiver of the right to counsel are admissible when those statements merely repeat prior statements made during a Sixth Amendment violation. Because it remains an open question, the case was remanded to the Eighth Circuit to allow that court to make the initial appellate determination.


The Court correctly applied the straight-forward analysis in this case. The point of the cases limiting the ability of the police to interrogate suspects in the absence of counsel is to prevent the police from circumventing the right to counsel by taking a suspect unaware. Turning it into a technical rule that the police can circumvent by simply making statements designed to elicit responses instead of asking questions would serve no purpose and would encourage the police to attempt to weasel out confessions that violate the spirit, if not the letter, of the Sixth Amendment protections. Under the Court's rule, the police have every incentive to provide the Miranda warnings up front. If the suspect waives the right to counsel, they get admissible evidence. And if the suspect does not, the right to counsel is vindicated.

The interesting question is really the fruit of a poisonous tree analysis. On the one hand, the defendant may have made the later statements partially based on the knowledge that he had already in essence confessed. A prior confession that the suspect does not know is inadmissible is a powerful tool to extract a subsequent confession. On the other hand, the suspect may simply have wanted to cooperate. Suppressing a statement made after a knowing waiver of rights is a strong remedy and risks allowing a guilty suspect who has confessed to go free. I'm inclined to think there should be a strong rule in these cases, because a bright-line rule eliminates any incentives for the police to play games. I don't want police deliberately violating the Sixth Amendment hoping to later cure the error; if they just administer the warnings upfront, everything becomes simple and any confessions are based on a truly knowing waiver of rights. But it makes sense to remand this question to the Eighth Circuit for initial consideration, so I agree with the Court's opinion.
Saturday, March 13th, 2004
1:40 pm
Alaska Dept. of Environmental Conservation v. EPA
Alaska Department of Environmental Conservation v. Environmental Protection Agency, No. 02-658. Majority opinion by Justice Ginsburg, in which Justices Stevens, O'Connor, Souter, and Breyer joined. Dissent by Justice Kennedy, in which Chief Justice Rehnquist and Justices Scalia and Thomas joined.

Environmental policy has been a great success story for cooperative federalism. The federal government creates a large number of rules and policies but permits the states to implement those rules if they choose to, in which case the states retain primary enforcement authority. Everyone agrees that this arrangement is constitutional, because the states are voluntarily choosing to participate in the federal programs. This case presents a purely statutory question: does the EPA have the authority to overrule a judgment of a state environmental agency that is not supported by evidence or is it required to seek state court relief? While the question is purely statutory, the various justices' analyses depend heavily on their understandings of the constitutional issues of federalism implicated by Congress's statutory decisions. Their decision also has significant consequences for the effectiveness of the Clean Air Act, which is a tremendously successful act that is largely responsible for the enormous improvement in air quality during the time that it has been in force. The Supreme Court upheld the EPA's authority.

The Majority Opinion

Justice Ginsburg wrote the majority opinion. Justice Ginsburg began by describing the statutory regime at issue. The Clean Air Act includes a program called Prevention of Significant Deterioration ("PSD"). Under PSD, covered major air pollution emitting facilities cannot be built without emplying the Best Available Control Technology ("BACT"). The Clean Air Act defines BACT as "an emission limitation based on the maximum degree of [pollutant] reduction . . . which the permitting authority, on a case by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for [the] facility. . . ." The Act includes both a general statement of EPA authority and a specific statement. The EPA may respond to a state's failure to comply with the Act by issuing an order stopping construction, assessing an administrative penalty, or by seeking an injunction in court. The Act specifically authorizes the EPA to enforce the PSD program by taking measures necessary to stop construction of noncomplying facilities, whether by issuing an order or by seeking injunctive relief. This case deals with whether the EPA has the authority to stop construction of a facillity that the Alaskan environmental agency has deemed to use BACT, where the EPA considers that judgment unreasonable.

After her introduction, Justice Ginsburg described the Clean Air Act's history in more detail. Congress originally passed the Act in 1970. The Act required the EPA to define National Ambient Air Quality Standards, which set the levels of pollution that clean air could contain. Each state must submit a plan to achieve and maintain air that meets the quality standards, with the EPA required to step in if the state does not promulgate an adequate plan. The EPA approved Alaska's plan. One of the required measures is the PSD plan, which is intended to prevent areas with clean air from slipping. As of 2002, every area that once violated the NAAQS for nitrogen oxide, the pollutant at issue in this case, is now in compliance.

No major emitting facility may be modified or built without receiving a permit that may not be issued if the facility does not use the "best available control technology" to reduce emissions of the controlled pollutants. BACT must provide the most reduction in the amount of pollutants emitted, taking into account the specific circumstances of the facility, including economic practicality. Permits also can't be issued if they would increase the amount of the pollutant past the NAAQS, or would cause it to go up by too much. The Clean Air Act authorizes the EPA to issue an order prohibiting construction if a state is not enforcing the requirements of the EPA, and also requires the EPA to prevent the construction of any facility that violates the PSD requirements. Incidentally, in case you think that I'm making this more confusing than necessary with all the acronyms, the Court's opinion is much, much worse. Many sentences are little more than alphabet soup, which is largely a function of trying to write concisely about complicated regulatory structures.

The majority then turned to the facts of this case, which I'll condense a lot. A major zinc producer wanted to expand its mine in an impoverished area of Alaska 100 miles north of the Arctic Circle. The company, which is the economic mainstay of the region, wanted to build additional diesel power plants to run its operation. The Alaska Department of Environmental Conservation decided that BACT was a process that would reduce nitrogen oxide emissions by 90 %. The company proposed instead using a different technology that would reduce emissions by 30 %. The Alaska agency agreed in a draft permit, after applying the top-down method of identifying BACT, which is the straightforward, but not mandatory, process of considering the most effective technology, but if presented with evidence that that technology is infeasible, switching to the next best technology, and so forth until the best technology that can be implemented has been identified. The agency's staff had concluded that the superior technology was technically and economically feasible, relying on the average cost per ton of nitrogen oxide removed. But the agency overruled its staff, agreeing instead to a proposal by the company to retrofit some of its older generators with the second-best technology, for a total increase in polution that would be smaller, assuming that at least one of the generators was offline at all times.

The National Parks Service objected, arguing that the offset was not permissible, and that in any event the company's plan involved lifting use restrictions on the pre-existing generators that made them part of the expansion plan, and hence covered by the BACT requirement in their own right. The EPA agreed with the Parks Service on both points. The Alaska agency responded by abandoning the offset plan, but by concluding that the superior technology was not economically feasible, despite a lack of any evidence on its effects on the mine's ability to compete and relying on the costs of producing energy for typical rural power plants. The EPA objected again and suggested ways to analyze the question. The agency issued a final report and permit without demanding any financial data from the company, and largely basing its decision on the importance of the mine to the region's economic prosperity. The EPA issued a series of orders forbidding construction; while the Court lays out in some detail the sequence of orders, modified orders, and withdrawals of orders, suffice to say that the EPA ordered the company to not modify its facility, unless it uses the 90 % reduction technology as BACT. The company petitioned the Ninth Circuit Court of Appeals for relief from the EPA orders. The courts of appeals have original jurisdiction over certain orders from administrative agencies, including the orders issued by the EPA to the company. After dealing with some procedural matters, the Ninth Circuit upheld the EPA's orders. The Supreme Court granted certiorari to resolve the important question of federal law of the scope of the EPA's authority.

The majority opinion began its analysis by considering the procedural question of whether the EPA's order was final, allowing judicial review. After noting that the EPA did not contest the issue before the Supreme Court, Justice Ginsburg concluded that the order was, indeed, final and thus reached the merits. The central question is whether the EPA's supervisory authority extends to reviewing the decisions of state environmental agencies under the Clean Air Act. The statute expressly gives the EPA the authority to stop construction when a state is not complying with the Act's requirements. All parties agree that the EPA could stop construction if a permit did not include a BACT determination. The question is whether the EPA can issue an order when a state includes a BACT determination that does not comply with the Act's requirements. The Court agreed that that was a rational interpretation of the Act and thus upheld the EPA's interpretation. The EPA has a longstanding interpretation of the Act as allowing it to make determinations of whether a BACT finding was reasonable, and the Court noted that that interpretation was due deference, although not the "Chevron" deference that sometimes applies in administrative law cases and provides almost definitive weight to administrative rulemakings. The state agency argued that BACT determinations are subjective, weighing competing concerns, and are entrusted to the states to make. While the Court acknowledged that there may not be a single correct determination, it reasoned that some determinations could be unreasonable. The EPA did not claim the authority to determine BACT, but only to reject unreasonable determinations. The Court rejected the interpretation that Congress intended the EPA to ensure the formal inclusion of the term "BACT" but not to ensure that the term was used meaningfully. Justice Ginsburg emphasized the limited nature of the EPA's inquiry- not second-guessing the agency, but simply ensuring that the state agencies reasonably comply with the law.

The Court distinguished other requirements that the EPA expressly approve BACT determinations in certain cases, by noting that those were requirements, where this case is about whether the EPA is authorized to examine BACT determinations in other cases. Furthermore, when approval is required, the EPA is not required to defer to a reasonable state agency determination that it disagrees with. Finally, the agency argued that the only remedy was for the EPA to bring an action in state court challenging its determination. The majority noted that it would be very unusual to require a federal agency to seek review in state court. In the absence of clear textual language supporting that conclusion, the Court followed the EPA's more ordinary interpretation. The Court also rejected concerns about whether the record would be sufficiently developed for federal court review and whether the EPA would gain a tactical advantage by choosing the forum or manipulating the burden of proof. To foreclose that argument completely, the Court held that in either defending an order it issued or in bringing a civil action, the EPA bears the burden of persuasion that the state agency's decision was not reasonable. The Court decided that the Ninth Circuit's analysis was consistent with that burden of proof. The Court also rejected concerns about untimely stop-construction orders, noting that this case dealt with a preconstruction order and that the courts have previously rejected orders issued long after construction began.

The Court then analyzed the specific decision of the EPA. It concluded that the EPA acted properly in rejecting the agency's decision. Taking the record as a whole, the Court concluded that the EPA's decision was not "arbitrary or capricious," which is a standard test for administrative law decisions. The Court agreed that the Alaska agency had no evidence to support its conclusion and could not reasonably state that it was unable to analyze the financial consequences of a different conclusion while still using those consequences to adopt a less-stringent BACT. The Court carefully considered the evidence included in the permitting process, and agreed with the EPA's conclusion that the state agency's decision was unreasonable. The majority also noted that the agency could revisit the issue if it assembled more data to support a reasonable analysis.

The Dissent

Justice Kennedy wrote the dissent, in which the Chief Justice and Justices Scalia and Thomas joined. Justice Kennedy argued that the Court should have rejected the EPA's decision based on the language of the Clean Air Act, general principles of administrative law, and the background principles of federalism. He began by analyzing the statute, which orders the EPA to enforce the requirements of the Act. He argued that the state agency is vested with the power to "determine" the BACT for the permitting process. Relying on a dictionary definition, he concluded that "determine" means to authoritatively settle a question. The BACT definition inherently requires discretion and leaves it to the state agency to balance the various policy concerns the Act addresses. Under Justice Kennedy's analysis, the EPA can ensure that the state agency follows the BACT process, but has no authority to review the results of that process, regardless of how much it disagrees with them. Because the state agency followed a process and reached a conclusion about what was BACT, the EPA lacked the authority to block construction that the state agency issued a permit for.

Justice Kennedy argued that when Congress intended EPA oversight, it said so in clear language, such as the BACT approval requirements in other cases that do not apply here. He rejected any concerns about a "race to the bottom" by stating that the Act placed responsibility in the hands of the states. In his analysis, both the Congressional policy and the factual record demonstrate that the states overwhelmingly carry out their duties in good faith.

The dissent also argued that EPA oversight is not necessary, because the statute requires that a state plan include the option of judicial review. The EPA can participate in the state administrative proceeding and can seek review through the state courts if it disagrees with the results. In Justice Kennedy's analysis, the remedy of allowing a federal agency to set aside a state administrative decision is even more unusual than requiring the agency to sue in state court. The statute clearly envisions the EPA participating in the comment process in the state administrative proceeding. The dissent reasoned that it follows that the EPA could also participate in the judicial review of the state agency's decision. The state courts, not the EPA, have the responsibility for ensuring that state agency's respect due process requirements and do not make arbitrary and capricious decisions. Justice Kennedy also noted that the majority approves a scheme that separates the burden of persuasion, which is on the EPA, from the burden of pleading the claim, which is on the state agency, an unusual and burdensome arrangement.

The dissent also argued that it would be unseemly and contrary to the federal structure to allow the EPA to enjoin a permit that has already been approved by the state courts, as could happen under the majority's system. In his analysis, judicial decisions cannot be reopened by administrative agencies. Reopening a federal courts decision would violate Article III and a similar respect should be accorded to state courts. He would thus apply, at a minimum, a clear statement rule before "insulting" the state courts by subjecting their decisions to federal agency review. Aditionally, Justice Kennedy raised the concern of a late decision by the EPA, sweeping away prior practices and unsettling the expectations of both the states and private parties. Justice Kennedy also noted the potential "Zeno's Paradox" of requiring the state agency to layer on further procedure in order to satisfy the EPA that its conclusion is reasonable, arguing that this could lead to cycles of worthless procedural process. The dissent also worried that this outcome was bad policy, leading to a long and expensive permitting process while undercutting the federal balance at the discretion of a single agency official. Finally, Justice Kennedy complained that the majority provided Chevron like deference, even though it acknowledged that the EPA was only entitled to less deference, while failing to appreciate the deference that the states are owed as coequal sovereigns entitled to equal dignity and respect.


The majority has the better of this argument. The argument is really about statutory interpretation, and the interpretation that complying with the requirements of the Clean Air Act means going through the motions but permits unreasonable decisions is inherently silly. Of course, laws sometimes are silly, but there's no reason to think that Congress intended that perverse result. Fears of a race to the bottom are real, and this case presents precisely the worst danger, where a state makes a judgment that enforcing the law as it reads threatens its economic welfare, without even making a showing that the economic worries are justified. The Clean Air Act is not primarily a procedural act requiring certain dance steps from state agencies. It is an important act of substantive regulation, carried out through cooperative federalism. Forbidding Congress from setting up systems like this one, or even requiring Congress to use magic words to do so, encourages laws that simply rely on federal power directly. That result is far more harmful to the legitimate concerns of federalism such as the principle of subsidiarity, which is the idea that government typically governs best by addressing problems at the lowest level that is competent to deal with them.

While this decision is fundamentally about a statute, the justices are all wrapped up in the broader struggle over our federal system. As I've said before, I reject Justice Kennedy's expansive, non-textually based notions of sovereign immunity and overblown deference to states. I think the core statement about federalism in the Constitution is contained in Article VI: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The Thirteenth to Seventeenth Amendments were all also intended to shift the balance towards the federal government. Where Congress has decided to act in a field of law, within its enumerated powers, giving its acts full force even though they constrain the action of states is fully consistent with our federal system, properly understood. So even sliding into the underlying constitutional fight, the majority gets it right.
Saturday, January 31st, 2004
5:36 pm
Digest version available
All future posts will be available in a digest form at www.livejournal.com/~ahm_digest

The digest posts will consist of the first paragraph, and then a link to the full post on ~adamhmorse. That way, people can include me on their friends page or similar aggregators without having my posts last for pages and pages. Also, it eases the lives of people who want to skip some of the more, shall we say, technical decisions.
5:28 pm
Kontrick v. Ryan
Kontrick v. Ryan, 02-819. Unanimous opinion by Justice Ginsburg.

The parties in this case are two plastic surgeons who were formerly partners in a practice together. Unfortunately, their skills at beautification were insufficient to prevent a bankruptcy dispute from getting very ugly. Their dispute ultimately went to the Supreme Court, although only on a limited question about the procedural requirements of the Federal Rules of Bankruptcy Procedure. Rule 4004 states that a creditor has 60 days after the first date set for a meeting of creditors to object to a debtor's discharge. This case deals with the question of whether a debtor can invoke that time limit after a court has ruled against him on the merits. Justice Ginsburg wrote for a unanimous court holding that a debtor must raise the issue of the time bar when the objections are filed or forfeit the issue.

The Court's Opinion

Justice Ginsburg began by describing the basic principles of bankruptcy law. Bankruptcy law permits an individual debtor to discharge almost all debts through a Chapter 7 liquidation. In order to receive the discharge, the debtor must satisfy a set of requirements, most of which are designed to prevent fraud. The relevant requirement for this case is that the debtor must not have transferred assets with the intent to defraud a creditor in the year preceding the bankruptcy case. The discharge may, however, be opposed by the trustee, the United States trustee, or any creditors of the debtor. The bankruptcy courts resolve such objections. The time limits to file objections are defined by the Rules of Bankruptcy Procedure, which provide the creditors with 60 days within which to file objections, although the Rules also permit the court to extend that time limit for good cause if a motion to extend time is filed before time runs out.

Justice Ginsburg then described the facts of this case. Kontrick is a plastic surgeon who filed for bankruptcy in 1997. Ryan, a fellow plastic surgeon and a former business associate of Kontrick's, was one of his major creditors and opposed a bankruptcy discharge. After three successive time extensions, Ryan filed a timely set of objections to Kontrick's discharge. He alleged that Kontrick had transferred property within one year of the bankruptcy petition with the intent to defraud creditors and therefore could not be granted a discharge.

Some months later, Ryan filed an amended complaint. The amended complaint listed for the first time the particulars of Kontrick's alleged fraudulent transfers: some years before, Kontrick had taken his name off of the joint bank account he had with his wife, but by continuing to deposit his paychecks into the account, thus transferring money to his wife. Kontrick filed an answer, in which he did not raise the issue of whether the amendments were timely, admitted the transfers to the family account, and denied that the transfers violated the bankruptcy laws. After "acrimonious" discovery, Ryan moved for summary judgment and submitted a statement of undisputed facts with his motion. Kontrick moved to strike some of the facts on the grounds that the summary judgment papers included new, untimely allegations. Kontrick noted that the family account claims were first raised in the amended complaint, but did not ask the court to strike those claims as untimely.

The bankruptcy court granted Kontrick's motion to strike in part, but granted Ryan summary judgment on the family account claim and denied Kontrick a discharge of his debts. Kontrick moved for reconsideration, arguing that the bankruptcy court lacked jurisdiction over Ryan's claim because it was not timely and the time limit was jurisdictional. The court denied reconsideration and held that Kontrick had waived the timeliness argument by not raising it before the court reached the merits.

Kontrick appealed sequentially to the district court and to the Court of Appeals for the Seventh Circuit, each of which affirmed the bankruptcy court's decision. The Seventh Circuit joined some other circuits that had ruled that timeliness of objections is not jurisdictional, but a circuit split existed, with at least the Eleventh Circuit disagreeing. The Supreme Court granted cert to resolve the split and affirmed the Seventh Circuit. In a footnote, the Court noted that it limited its consideration to the question presented, whether the time limit in Rule 4004 is jurisdictional, without considering either whether Kontrick's mentioning the addition of new claims was sufficient to raise the untimeliness defense or the question of whether the amended complaint related back to the original complaint. When a filing "relates back" to a prior filing, it is treated for purposes of timeliness as if it had been filed when the prior filing was. Thus, if Ryan's amended complaint related back to his original complaint, it would be timely, but the Court did not reach the issue.

Justice Ginsburg then turned to the legal issue of the scope of a bankruptcy court's jurisdiction. Under the Constitution, Congress determines the scope of the jurisdiction of the inferior federal courts. Some of the provisions related to bankruptcy law contain time limits, such as the requirement that a party must timely object to a bankruptcy court's ruling to receive de novo review by the district court. However, the time limits for filing objections to a discharge are not statutory. The statutes only state that objections to discharges are core bankruptcy matters and thus within the jurisdiction of the bankruptcy courts.

The time limits are within the bankruptcy Rules. As a matter of black-letter law, the Rules do not extend or diminish the jurisdiction of the federal courts, simply constraining the procedures by which that jurisdiction is exercised. The Rules themselves state in Rule 9030 that they do not affect the jurisdiction of the courts. Justice Ginsburg thus concluded that Rule 4004 is a claim-processing rule, not a jurisdictional limitation.

Kontrick agreed with that much, conceding that the question was not about the subject matter jurisdiction of the bankruptcy courts. Instead, he argued that "jurisdictional" is a short-hand that is used to refer to a time limit that the courts do not have the power to extend. Justice Ginsburg, in turn, acknowledged that courts, including the Supreme Court, sometimes use the term jurisdictional to refer to a mandatory, emphatic time limit. She then stated that courts ought to be more careful in using the term "jurisdiction," limiting it to the actual issues of subject-matter jurisdiction and personal jurisdiction.

Kontrick argued that even though the claim-processing rules were not truly about the subject-matter jurisdiction of the courts, they have the same effect. Claims that courts lack subject-matter jurisdiction are highly unusual in that they cannot be waived and can be raised at any time, even after an adverse ruling or for the first time on appeal. The only limit to when subject-matter jurisdiction may be raised is that it must be resolved within the same case, not as a collateral attack.

Justice Ginsburg rejected this argument. Claims related to subject-matter jurisdiction cannot be affected by the behavior of the parties. They cannot be waived or forfeited. A claim-processing rule, however inflexible, must still be asserted.

The Court's opinion then returned to the specific claim-processing rules at issue. Rule 4004 serves several important purposes: it informs creditors of the time in which to bring their claims, cabins the discretion of the bankruptcy courts on whether claims are timely, and gives debtors an affirmative defense against untimely filings. Kontrick asserted that nothing that happened after the time limit to file objections ran matters, because courts lack the equitable authority to extend the time limit. The problem with this argument is that the court did not apply any doctrines such as equitable tolling, and the Court refused to reach the question of whether the time limits could be altered for equitable reasons, or whether parties may collusively waive time limits in some case where that would benefit them, perhaps by aiding one creditor at the expense of others. The only question presented in this case is whether Kontrick forfeited his affirmative defense by not raising it promptly.

Justice Ginsburg held that time bars, like most affirmative defenses, must be raised in the answer, although an answer may be amended to include an affirmative defense that was inadvertently omitted. Even if a time bar could be asserted later than that, the absolute last time to raise it would be during the resolution of the merits of the case. Only subject-matter jurisdiction can be raised post trial, and time limits such as this are not in that category. Thus, Kontrick had lost his defense and the lower courts reached the correct result.


The Court reached the correct conclusion here, but some of the reasoning could have been tighter. In particular, the description of the purposes that a time bar serves was mushy and did not further the overall analysis. The purpose of a time bar is not to create an affirmative defense for a debtor. Rather, the purpose is to conserve judicial resources by avoiding litigation over when late becomes too late, to promote the prompt and final resolution of bankruptcy cases, and to protect against claims over whether to permit a discharge being raised only when a creditor concludes that the allocation of assets is not favorable. Similarly, Justice Ginsburg's conclusion that claim processing rules must be asserted, and are thus unlike subject-matter jurisdiction rules is simply conclusory. It amounts to "you say that A is like B and therefor if B' then A'; however, A is not like B ." The important question is why is A not like B. The answer, of course, is that subject-matter rules are special because they are designed to prevent the courts from taking actions which they have no power to take. Claim-processing rules, on the other hand, are simply like any number of other rules that are designed to produce equitable results and manageable procedures. No underlying interest is vindicated by allowing a time bar to be asserted late in the proceeding. It does not advance the interests that the time bar itself serves, unlike allowing subject-matter jurisdiction objections to be addressed late, which ensures that courts do not issue orders on subjects that they are not competent to judge. The opinion would have been stronger if it had relied on a slightly more solid foundation for distinguishing the two types of claims. However, the conclusion is right and the language of the opinion does no harm, so it's not a huge concern.
Wednesday, January 28th, 2004
10:51 pm
Frew v. Hawkins
Frew v. Hawkins, 02-628. Opinion by Justice Kennedy for a unanimous Court.

The profoundly antidemocratic principle of sovereign immunity generally prevents individuals from suing states in federal court. The Rehnquist Court has expanded the scope of the principle, which is often discussed in terms of the Eleventh Amendment, even though the "textualist" justices admit that the text of the Eleventh Amendment does not even come close to supporting some of the more extreme sovereign immunity decisions they have nonetheless issued. This case addressed whether sovereign immunity would be extended even further, prohibiting courts from enforcing consent decrees issued in valid court proceedings. The district court in Texas concluded that it did not, but the Fifth Circuit disagreed and through out the lawsuit in an interlocutory appeal. The Supreme Court granted cert to resolve a circuit split and reversed the court of appeals.

The Opinion

Justice Kennedy wrote for a unanimous Court. He began by describing the procedural history, including a description of the structure of the Medicaid program. Medicaid is a cooperative state-federal program to provide medical care for the poor. States are not required to participate, but if they agree to participate and accept the concomitant federal funding, they must obey a variety of laws. Among other requirements, participating states must have an Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program, which is a program designed to provide children with treatment that will prevent long-term health issues. This case was brought by the mothers of children eligible for EPSDT benefits. The case began in 1993 with a civil suit against various Texas state officials in their official capacities and against several state agencies. The lawsuit alleged a variety of failings of Texas's EPSDT program, including failure to provide proper screenings to eligible children and failure to provide notice of their rights. The district court dismissed the state agencies from the lawsuit on Eleventh Amendment grounds, but the case proceeded against the officials. The district court certified a class of plaintiffs, the million children in Texas entitled to EPSDT benefits. In 1996, the case settled when the parties agreed to a consent decree, which the district court approved.

The current case is about enforcement of the consent decree, which is a detailed 80 page document setting out many specific duties of the state. Justice Kennedy gave an example of how the requirements of the consent decree are more specific and extensive than the general language of the federal Medicaid law it enforces.

In 1998, the petitioners filed a motion asking the district court to enforce the consent decree, alleging that the state was not carrying out its terms. The state officials argued that they had been complying and that in any event the Eleventh Amendment barred enforcement of the consent decree. The district court disagreed and issued an opinion finding that the officials had violated the decree and requesting the parties to submit possible remedy plans. At this point, the state officials took an interlocutory appeal and the Fifth Circuit reversed, concluding that only violations of the underlying statute were actionable because of the Eleventh Amendment.

Justice Kennedy then laid out the arguments by the petitioners to structure the rest of his discussion. The petitioners argued that the state waived the Eleventh Amendment arguments when it consented to the settlement. They also argued that even without waiver, the decree would be enforceable under the principles of Ex Parte Young. The Supreme Court only considered the latter argument, because it held that the petitioners were correct and there was thus no need to consider the waiver argument.

Justice Kennedy reiterated that the Eleventh Amendment confirms the sovereign immunity of the states, giving the states themselves immunity against lawsuits from individuals. At the same time, Ex Parte Young held that federal law can be enforced against the states by bringing injunctive actions, although not actions for money damages or other retrospective relief, against state officials.

The Court's opinion then discussed the basic principles of consent decrees, which have aspects that are like each of court orders and contracts. Federal consent decrees must effectuate federal interests. In order to be enforceable, a federal consent decree must resolve a dispute within the subject-matter jurisdiction of the court, come within the general scope of the complaint, and serve the purposes of the underlying federal law.

Justice Kennedy then considered the intersection between the Eleventh Amendment and the rules governing consent decrees. He noted that the state, or technically its officials, did not argue that the consent decree violated either Ex Parte Young or the principles governing consent decrees. Essentially, the state officials argued that although the decree was valid, federal courts cannot enforce it because of the Eleventh Amendment.

The officials argued that Ex Parte Young is a narrow exception, and that permitting the enforcement of consent decrees would expand it to cover everything that state officials agree to in a settlement. To avoid enforcing decrees that go beyond federal law, the state officials argued, the Eleventh Amendment should bar suits to enforce consent decrees.

Justice Kennedy rejected the state officials' arguments. The petitioners sought enforcement of a valid consent decree that was entered to enforce a claim under federal law. While the Supreme Court previously ruled in Pennhurst that federal courts cannot enforce state law against state governments, Justice Kennedy distinguished Pennhurst because that case did not implicate the supremacy of federal law. While the state could have adopted a variety of different plans consistent with the Medicaid law, the consent decree required the state to comply with a specific, valid plan to enforce the statute's more general requirements. This case was more analogous to a prior case where a court awarded attorneys' fees to the plaintiffs in enforcing a prior judgment against state officials that were not making a good faith effort to comply. While plaintiffs ordinarily can not get money damages against states under the Eleventh Amendment, a fine to enforce an already issued injunction is permissible, partially because it's less intrusive on state sovereignty than sending state officials to jail to compel compliance. Similarly, once a consent decree has been validly issued, courts can enforce it.

Justice Kennedy turned in the last part of his opinion to the argument that this rule could undermine sovereignty and accountability. While acknowledging that this argument has some force, he rejected the Eleventh Amendment as the mechanism to safeguard those interests in the context of consent decrees. Instead, courts should be ready to exercise their equitable authority to modify decrees in light of changed circumstances. Under appropriate circumstances, courts should be ready to terminate consent decrees, when a state shows that a decree is no longer necessary. However, when the consent decree has not been dissolved, the courts should enforce it according to its terms.


The Court's conclusion was completely correct. However, if the Supreme Court interpreted the Eleventh Amendment correctly, the question would not have ever arisen. The Eleventh Amendment and notions of sovereign immunity are profoundly antidemocratic, based on antiquated notions that "the king can do no wrong." The Eleventh Amendment was a mistake that should have never been passed. However, the text of the Eleventh Amendment is very limited. The real problems come from expanding it to provide immunity against suits brought under the federal courts federal question jurisdiction, as opposed to suits brought under diversity jurisdiction. The text of the Eleventh Amendment does not reach that far, and the Supreme Court should not have expanded it to do so. As it is, the Eleventh Amendment gives license to states to flout validly enacted, constitutional federal laws under a variety of circumstances, despite the Constitution's decree that acts of Congress are supreme over state law. So the Supreme Court ought to repudiate the whole sorry line of cases extending notions of sovereign immunity to federal question cases. But at least the Supreme Court did not extend the line of cases to the silly extreme that the Fifth Circuit did.
Thursday, January 22nd, 2004
9:06 am
Illinois v. Lidster
Illinois v. Lidster, 02-1060. Justice Breyer wrote the majority opinion, which Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas joined. Justice Stevens wrote an opinion concurring in part and dissenting in part, which Justices Souter and Ginsburg joined.

This case addresses the propriety under the Fourth Amendment of police roadblocks intended to gather information about a crime instead of intended to catch the criminal. The police sought to gather information about a hit-and-run accident through the roadblock. Instead, they caught a drunk driver, respondent Lidster. The Illinois trial court convicted Lidster, but the Illinois appellate court reversed the conviction on the ground that the stop violated the Fourth Amendment, as incorporated into the Fourteenth. The Illinois Supreme Court affirmed the appellate court. The Supreme Court granted cert and reversed.

Majority Opinion
Justice Breyer wrote the majority opinion. He began by laying out the facts and the procedural history. A hit-and-run driver killed a 70-year old bicyclist. About a week later, the police set up a roadblock seeking information. They partially blocked the eastbound lanes, pulling over each car as it drove through to hand the driver a flyer and to ask the occupants to see if they had seen anything. The stops took only 15-20 seconds each.

The respondent swerved as he approached the checkpoint, nearly hitting a police officer. The officer smelled alcohol and signalled for Lidster to pull over so a breathalyzer test could be administered. It tested positive, leading to Lidster's conviction. The appeals court reversed and the state supreme court agreed, by a vote of 4 to 3, that Indianapolis v. Edmond controlled the case.

The Supreme Court addressed drug investigation roadblocks in Edmond. The police set up a roadblock to check cars for drugs. The police would stop cars, with no individualized suspicion, and look into the cars while walking around drug-sniffing dogs. If the dogs alerted or they saw evidence, they would arrest the car's occupants. The Court concluded that a stop without reasonable suspicion for general crime control purposes violated the Fourth Amendment.

Justice Breyer distinguished Edmond. In this case, the primary purpose of the checkpoint was not to determine if the occupants of the cars were involved in crime. Rather, the police sought the assistance of the public in solving a crime. Edmond addressed the context where the police sought to catch random motorists who were involved in crime. The language about criminal enforcement in Edmond addressed.similar contexts and shouldn't be extended to the different context of seeking the assistance of the public in investigating a crime.

Justice Breyer held that the Fourth Amendment does not prohibit brief informational stops. A driver's car is not their castle. Special law enforcement concerns justify brief stops without individualized suspicion. The opinion compared informational stops to crowd control or public safety work, where the concept of individualized suspicion does not really apply. Furthermore, these sorts of stops are not very intrusive. They do not create anxiety in the way that an investigative stop does, and the public may be eager to help. The stops are brief.

In addition, the police ordinarily can ask the public for help with an investigation. Voluntary requests are an important investigatory technique. While stopping a car is significant, because a stop qualifies as a "seizure" under the Constitution. However, in the same way that stopping pedestrians to ask them brief questions can be useful, stopping motorists for informational stops can help.

Extending the Edmond rule is also not necessary to control an unreasonable proliferation of roadblocks because they are self-limiting. They use a great deal of law enforcement resources and can generate community hostility. These concerns limit the use of sobriety checkpoints, which are already constitutionally permitted.

Because informational checkpoints are not inherently unreasonable, the test becomes whether it was reasonable under the circumstances. Following Brown v. Texas, the Court considers "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty."

The Court held that the stop was reasonable, considering those factors. The public concern was very grave, because it involved an investigation into a crime involving a fatality. Next, Justice Breyer stated that the stop advanced the public interest to a significant degree because it was likely to catch drivers who were driving the same time a week before, perhaps because of when their work shifts ended. Some of those drivers may have seen something. However, the most important portion of the analysis was the extremely minor degree of interference with individual liberty. The stops were very brief and posed little reason for anxiety or alarm. No allegations have been made of any form of discrimination in operating the checkpoint. The Court concluded that, balancing the Brown factors, the stop was constitutional.

The Concurring and Dissenting Opinion

Justice Stevens wrote an opinion concurring in part and dissenting in part, which Justices Souter and Ginsburg joined. Justice Stevens agreed with the analysis of the majority up to the point where the Court applied the Brown factors. However, the dissenters would have remanded to the Illinois courts to consider how to apply those factors rather than deciding them directly.

Justice Stevens began by noting that some drivers would find an unannounced roadblock alarming, while others might be irritated by the delay and traffic congestion roadblocks produce. In contrast, the possibility that the checkpoint would produce useful information was merely speculative. The victim had finished work at the Post Office shortly before the accident, and the police hoped that other Post Office employees might have left their shifts at the same time and seen something. But Justice Stevens noted that while that theory is plausible, there was no evidence that the police had done anything to verify when shifts ended or that it would produce more information that putting flyers on the windshields of postal employees' cars.

Because the Supreme Court ordinarily does not resolve factual issues not decided by the courts below, particularly when the local courts may be more aware of specific local conditions, Justice Stevens would have remanded for further proceedings below.

The rejection of Edmonds's per se rule was correct. An informational stop simply does not implicate the concerns of the Fourth Amendment in the same way that a stop intended to catch criminals does. But a stop does involve some degree of a seizure.

Justice Stevens was correct in stating that the likelihood of the stop producing some information was speculative. But on the other hand, the intrusiveness was extremely low. Because of how minor the intrusion is, the majority's argument is more persuasive.

The only thing I find troubling about the outcome of the case is the possibility that the police were hoping to catch the driver in the hit-and-run accident. If the police were hoping that they would get lucky, presumably through the driver panicking, the stop would take on a rather different feel. Still, because the effort to find witnesses is reasonable, although perhaps a stretch, and the intrusion is so minor, the Court's conclusion was correct.
9:05 am
Verizon Communications, Inc., v. Law Offices of Curtis V. Trinko, LLP
Verizon Communications, Inc., v. Law Offices of Curtis V. Trinko, LLP, 02-682. Majority opinion by Justice Scalia, in which Chief Justice Rehnquist and Justices O'Connor, Kennedy, Ginsburg, and Breyer joined. Justice Stevens wrote an opinion concurring in the judgment, in which Justices Souter and Thomas joined.

The Telecommunications Act of 1996 ended the pattern of monopolistic control of local phone service. This case deals with whether a telephone customer can bring an antitrust action against the incumbent service provider for failing to allow other phone companies to compete on a fair basis. The District Court for the Southern District of New York dismissed the claim, but the Second Circuit reinstated the claim and remanded for trial. The Supreme Court granted cert and reversed the Second Circuit.

The Majority Opinion
Justice Scalia wrote the majority opinion. He began by laying out the factual background to the case. Prior to 1996, Verizon and its predecessors had the exclusive franchise to provide local phone service within New York State. The 1996 Telecommunications Act sought to end the local phone service monopolies and to encourage competition. To achieve this goal, the Act required local phone companies to provide their competitors with access to network facilities, including access to individual elements "unbundled" from the rest of the network.

Verizon entered into an interconnection agreement with AT&T subsequent to binding arbitration. New York's state regulatory agency approved the agreement in 1997. Verizon also took advantage of the 1996 act's permission for local phone companies to compete in the long-distance market. The act requires local phone services to meet a checklist of requirements to engage in long-distance services, including meeting certain obligations to provide competitive access to network facilities. The Federal Communications Commission approved Verizon's efforts to expand into long-distance services in 1999.

Part of Verizon's obligations under its agreements was to provide competitors with access to its electronic service system for maintenance and quality control. The competitors were supposed to be able to order service support through the electronic system, with Verizon sending notifications when the services had been provided. Unfortunately, Verizon's competitors complained to the state and federal regulators that their orders were not being filled, impairing their ability to compete.

The FCC entered a consent decree resolving the complaints, while New York's state regulatory agency issued a series of orders resolving its side of the complaints. The consent decree required Verizon to make a $3 million "voluntary contribution" to the U.S. Treasury. The scare quotes come from Justice Scalia's opinion; after all, it's really quite obviously a fine that Verizon consented to pay. The state, in turn, required Verizon to pay $10 million in damages to its competitors. Both regulatory agencies also applied heightened requirements to ensure future compliance. About six months later, both agencies terminated their consent decrees and orders, concluding that the problem had been solved.

The respondent in this case, a law firm in New York, filed an action shortly after the regulatory judgments that alleged antitrust violations by Verizon and sought compensation for itself and a class of similarly situated plaintiffs. The complaint claimed that the anticompetitive conduct of Verizon hurt potential and actual customers of its rivals by deterring the customers from switching to the rival phone companies. The complaint also alleged violations of the Communications Act of 1934 and of state law. The district court dismissed all of respondent's claims. The court of appeals reinstated the antitrust claims and the Supreme Court granted cert.

Justice Scalia began his analysis of the legal issues by laying out the requirements imposed by the Telecommunications Act in more detail. Incumbent phone companies are required to offer access to unbundled elements of the network on fair terms, which the FCC has interpreted to mean at a price equivalent to the long-term incremental cost. The start-up phone company can either interconnect its own network or simply lease components of the network at wholesale prices and use those components to offer retail service. The incumbents are also required to allow rivals to instal equipment on the incumbents property, to make network interconnection feasible.

Justice Scalia then discussed preemption of antitrust laws by other regulatory systems. Ordinarily, a detailed regulatory system supersedes the more general duties under the antitrust law. However, the 1996 Act specifically states that antitrust claims and remedies remain available, so there can be no claim of an implied exemption to the antitrust laws. The majority opinion thus went on to consider whether respondent stated a claim under the ordinary standards of antitrust law.

Justice Scalia stated that any claim of antitrust violations in this case would depend on Sec. 2 of the Sherman Act, which prohibits "monopolizing." He noted that simply having monopoly power is not a violation of the Sherman Act; the ability to charge monopoly prices because of a monopoly generated by superior business ability, such as offering a better product, is part of the free-market system because it incentivizes diligent work and innovative developments. Monopolizing requires anticompetitive conduct designed to improperly maintain or create a monopoly in order to be actionable.

Justice Scalia then discussed the tension between the ordinary competitive system and requiring firms to offer rivals use of their facilities. The ability to use a rival's network reduces the incentives to develop a separate, economically beneficial system, and Justice Scalia raises the specter that mandatory negotiations between rivals could lead to collusion and price-fixing. As a result, antitrust law generally permits firms to refuse to deal with their rivals.

However, under certain exceptional circumstances, antitrust law does require firms to deal with their competitors. Justice Scalia noted the general hesitancy to impose such duties and then discussed the leading case.

Aspen Skiing Co. v. Aspen Highlands Skiing Co. addressed whether ski resorts violated the Sherman Act by discontinuing a multiple resort ticket plan, apparently to pressure the smallest resort out of business. The defendant owned three of the four ski resorts in Aspen; unsurprisingly, the plaintiff owned the fourth. For many years, they had issued multiple day passes that allowed skiers to ski whichever mountain they wanted to. The defendant demanded an increased share of the revenues of the all-area passes and then canceled the arrangement. The plaintiff offered a series of increasingly desperate possibilities to recreate the all-area ticket, up to and including an offer to purchase tickets to the defendant's resorts at retail price. The defendant declined even that offer. The Supreme Court upheld a jury verdict against the defendant, noting that the defendant appeared to be foregoing even large short-term gains in the hopes that it would reap monopoly prices in the long run by reducing competition.

Justice Scalia stated that Aspen is "at or near" the outer boundary for such claims. The Court relied on the defendant's decision to terminate a voluntary, presumably profitable joint venture as evidence that there was anti-competitive intent. Furthermore, the fact that the defendant was offered retail price shows that it was seeking to harm its competition.

In contrast, Verizon had no voluntary dealings with its rivals. Consequently, Justice Scalia found it difficult to determine whether Verizon's "regulatory lapses were prompted not by competitive zeal but by anticompetitive malice." Furthermore, the Telecommunications Act requires cost-based pricing, not the retail price that was offered in Aspen. Justice Scalia also observed that in Aspen and similar cases, the defendant refused to sell a service to the plaintiff that it already sold to other customers. In this case, Verizon only sells phone service to retail customers as a complete package; the piecemeal sales to rivals required by the Telecommunications Act are a whole new offering and cost meaningful money.

Justice Scalia went on to state that this conclusion would be true even if the Supreme Court adopted the "essential facilities" doctrine that the court of appeals relied on in reversing. He noted that the Supreme Court has never adopted that doctrine, but stated that the doctrine requires the unavailability of access to the essential facilities, and that Verizon's competitors had access because the regulatory agencies could compel access. He concluded that the 1996 Act eliminated any need for a judicially created remedy of compelled access.

Finally, Justice Scalia justified his conclusions on antitrust policy grounds. Antitrust doctrines need to be sensitive to the economic realities of the industry in question, which includes the regulatory background of the industry. Where there is a regulatory structure designed to prevent anticompetitive behavior, the courts should be hesitant to expand antitrust doctrine, because it will likely do little good and may do some harm. In other words, "[j]ust as regulatory context may in other cases serve as a basis for implied immunity,,it may also be a consideration in deciding whether to recognize an expansion of the contours of §2." (citation omitted). In this case, Verizon had to provide access in order to gain the ability to offer competitive long-distance services and the FCC and New York's agency can enforce those requirements. The regulatory response in this case actually solved the lack of access that had existed.

Furthermore, false positives in the antitrust context have large costs, because they deter the very sorts of competitive behavior that antitrust law is designed to protect. In essence, Justice Scalia threw up his hands at the possibility of determining whether an incumbent phone service was denying access, especially because of the numerous different ways in which challenger phone services can be harmed. Furthermore, the injunctive relief that respondent requested would be difficult for a court to enforce, and courts ought not to issue injunctions that they cannot adequately enforce.

Justice Scalia concluded by noting that the Telecommunications Act is more ambitious, in some ways, than the antitrust acts, because it broke up monopolies instead of merely trying to prevent monopolization prospectively. While the Sherman Act is the "Magna Carta" of free trade, it does not authorize unlimited judicial decisions to facilitate competition.

Justice Scalia did not reach the issue of whether the respondent had standing, on the grounds that it was unnecessary to decide in light of the decision against the respondent on a substantive ground.

The Concurrence in the Judgment
Justice Stevens wrote a short opinion concurring in the judgment, in which Justices Souter and Thomas joined. Justice Stevens's opinion did not reach any of the same issues as the majority opinion, because he would have decided the case purely on the basis of standing.

Standing goes to the question of whether the plaintiff in a case is entitled to relief under the law, as distinct from the question of whether the defendant has, in fact, violated the law. Standing issues have two components. First, the Supreme Court has recognized a set of constitutional standing requirements. Second, even if a plaintiff has constitutional standing, the statute they seek to use in their lawsuit must provide them with statutory standing. In this case, the only question is whether the respondent had statutory standing.

Justice Stevens began with the standing analysis on the grounds that complicated legal claims should deal with standing first. Respondent seeks treble damages, a traditional antitrust remedy made available under the Clayton Act to "any person who has been injured in his business or property." Although a literal reading would treat the law firm as a person in the meaning of the statute, the Supreme Court has not adopted that literal reading. The Supreme Court has instead limited standing in antitrust cases to avoid either double recovery for the same offense or complex litigation over how to apportion damages among various claimants. Antitrust law follows the general rule of not going beyond the first step in analyzing damages.

Justice Stevens reasoned that any harm that respondent suffered flowed purely from the harm that AT&T suffered at Verizon's hands. While the question of whether AT&T suffered an antitrust harm, and if so what its damages are, is daunting, AT&T is far better positioned to enforce the public interest underlying the antitrust law. Denying AT&T's customers an antitrust remedy greatly simplifies the litigation, while not leaving the antitrust law unenforced.

Because the standing question would resolve the case, Justice Stevens would not have reached the issue decided by the majority.

In general, I'm not a fan of overemphasis on standing issues. Constitutional standing issues are often used to allow violations of federal law go unremedied. Where Congress framed the right to a cause of action in sweeping terms, the Court should not limit standing without a compelling reason. Furthermore, the Supreme Court, in particular, generally grants cert to resolve an important legal issue. Resolving a standing issue first sometimes results in unnecessarily dodging an underlying legal issue that ought to be resolved quickly. However, in this case, Justice Stevens was right to resolve the standing issue first, because the standing issue is relatively easy and the complicated substantive issue would be best litigated by a party with a clear claim to recovery.

The plaintiff is particularly unsympathetic. While most New Yorkers are familiar with the incompetence and malfeasance of Verizon's phone service, the real anticompetitive harm alleged hurt AT&T. While AT&T may have unintentionally passed on some of the harm to its customers, by being unable to handle their service requests promptly or providing poor service, this is fundamentally different from a wrong like price fixing that really hurts the ultimate consumers directly. The plaintiff looks to be deriving a quick buck, not so much by recovering from a real harm, but by bringing to bear the heavy artillery of a class action and treble damages to create substantial legal fees. Perhaps there is some real harm that the plaintiff suffered. But even then, that harm looks more like a contractual failing on AT&T's part. It makes sense to not let respondent press this claim, while leaving open the antitrust question for when a phone company that has actually been denied the ability to compete brings a case.

If the antitrust question were easy, the majority might be right to resolve it directly. But Justice Scalia's analysis hardly reassures me. First, by stressing the regulatory background, Justice Scalia lets in through the backdoor the sort of implied immunity that the Telecommunications Act specifically disclaims. The Telecommunications Act explicitly leaves open the possibility of antitrust remedies; to turn around and say that antitrust remedies are not necessary because of the procompetitive regulation of the FCC is in effect to allow the Telecommunications Act to supersede the Sherman and Clayton Antitrust Acts, despite the 1996 Act's explicit statement that it is not intended to do so. Justice Scalia's explicit invocation by analogy of the doctrine of implied immunity to justify the majority's conclusion, after acknowledging that a direct claim of implied immunity could not stand, demonstrates the error of the analysis. Where Congress has rejected implied immunity, the Court has no business using the same style of analysis that produces implied immunity to deny a claim under the different name of determining the contours of the antitrust laws.

Furthermore, the Court never considers the unique economic circumstances related to a natural monopoly. Local phone services is a natural monopoly; it generally only makes economic sense for a single network of phone lines to serve an area. That means that any competition will require either building a redundant network of phone cables, with little societal benefit, or for different firms to share the same phone network. That raises serious questions for how to apply the antitrust law. I'm not at all expert in antitrust law, but the analysis here was much more difficult than the majority gave it credit for. That's particularly true because the efforts to create competitive local phone services have faced serious problems from all of the barriers that the incumbent phone services, and in some cases local municipalities and states, have erected. Antitrust law, with its heavy deterrence of treble damages, may be precisely what is needed to enforce the policies of the Telecommunications Act. By reaching this case without the benefit of an appropriate plaintiff that is well-situated to present the strongest arguments, the Court may have made an important mistake. Justice Stevens's approach would have been better.
9:04 am
SEC v. Edwards
Securities and Exchange Commission v. Edwards, 02-1196. Justice O'Connor wrote the opinion for a unanimous Court.

Ten thousand people invested a total of $300 million in a payphone sale-and-leaseback deal run by companies owned wholly by the respondent, but the company went bankrupt and most of the investors lost large amounts of money. The SEC brought a civil enforcement action against the respondent, alleging that he violated federal securities regulations. The Court of Appeals for the Eleventh Circuit reversed the district court's determination that the sale-and-leaseback program constituted an "investment contract" covered by federal securities law. The Supreme Court reversed.

The Opinion

Justice O'Connor wrote the opinion for a unanimous Court. She began by laying out the facts and the procedural history. Edwards owned and operated several companies that marketed an opportunity to make money on payphones. The primary deal that he offered was one where investors would purchase a payphone for about $7,000 and then lease it back to Edwards's management company for 5 years. During the 5 years of the lease, the management company would pay the owner $82 per month, a 14 % annual return. At the end of the lease, or within 180 days of the request of the purchaser, the company would buyback the phone at the original purchase price. The investors played no role in the actual management of the payphone. In theory, the returns from the payphones would cover the monthly payments. In practice, they never produced enough revenue and new purchasers' money was used to make the monthly payments to prior purchasers. Inevitably, Edwards company went bankrupt. The same month the company filed for bankruptcy protection, the SEC began a civil enforcement action against Edwards, alleging that he violated registration and antifraud provisions of the securities laws. The district court concluded that the sale-and-leaseback arrangement was an investment contract covered by the securities law, but the court of appeals reversed on two alternate grounds. First, the court concluded that "investment contracts" did not cover arrangements that offered a fixed rate of return, without either participation in the profits or the appreciation of the underlying investment. Second, the appeals court held that the requirement that an investment depend solely on the efforts of others was not satisfied when the deal offered a contractual right to payments. Justice O'Connor rejected each conclusion in turn.

Justice O'Connor began her analysis by noting that the securities acts were written broadly to cover any form of investment that might be made. A security includes "any note, stock, treasury stock, security future, bond, debenture, . . . investment contract, . . . [or any] instrument commonly known as a 'security'." The term "investment contract" is not defined by the act, but the Court has previously defined the test as whether it involves "the investment of money in a common enterprise profits to come solely from the efforts of others." The Court based its interpretation on the interpretation given to the phrase by state courts applying "blue-sky laws."

Justice O'Connor held that there is no reason to distinguish for these purposes between contracts with a fixed rate of return and those with a variable rate. In both cases, the firm attracts investors with the promise of profits. Furthermore, purportedly low risk investments with a fixed high rate of return may be particularly appealing to vulnerable, unsophisticated or elderly investors who are among the primary intended beneficiaries of the securities laws.

Justice O'Connor then rejected the arguments that the respondent made that prior precedent precluded this interpretation. She noted that some of the blue sky cases that the Court relied on in formulating its test involved a fixed rate of return. The respondent relied on a case holding that a share in a housing co-op was not covered, because it was primarily purchased for the use of the housing and the investment opportunity was secondary. Although the Court in that case drew a contrast with contracts where the investors had a claim on profits, Justice O'Connor concluded that it was not intended to create an additional test that investment contracts need to meet.

Justice O'Connor also noted that the SEC has consistently maintained that fixed rate contracts can still be investment contracts. The SEC's consistent interpretation of the statutes it enforces receives deference from the federal courts.

Justice O'Connor quickly dismissed the alternative holding that the contractual right to receive payments prevented the arrangement from being treated as a security. After all, she reasoned, the Court had to construe the phrase "investment contract," which inherently implies contractual rights to payments. Furthermore, the Eleventh Circuit's interpretation conflicts with prior precedents dealing with other investment contracts.

The Supreme Court reversed the Eleventh Circuit's decision and remanded for further proceedings.


This case is very straightforward. The Eleventh Circuit's decision would seriously undermine the purposes of the securities laws. Neither the text of the securities laws nor the prior precedents of the court require the interpretation the Eleventh Circuit reached. I agree completely with the Court's decision and reasoning.

Some of the issues discussed could have been discussed in other terms, however. Edwards's "investment opportunity" looks dismayingly like a Ponzi scheme. Ponzi schemes are a classic financial fraud. The crook entices investors to buy into a supposedly fool-proof plan with promised profits that are too good to be true. Later investors' money pays returns to the early investors, who frequently reinvest because they appear to be doing so well. Eventually, of course, the money runs out, and the swindler is either long gone after skimming off some money or heads off to prison.

Of course, perfectly legitimate plans can degenerate into Ponzi schemes. A company that believes that it is going to succeed once it makes it through a difficult starting period may spend money on its old investors to stay solvent. As the money runs out, the company may try to keep it going by becoming a Ponzi scheme. The real question is what the intent was, and whether the firm is misleading potential investors. I'm curious whether Edwards's companies were actually trying to make money with their business plan. If not, he ought to face criminal charges, not just a civil enforcement action.

The other issue is that the whole deal looks a lot like a bond to me. Investors give money in, with no claim on the net profits but guaranteed a steady pay-off and then their money back at the end. That's basically the same as a bond, although it may not meet the definition of a bond in the securities laws and the caselaw. I haven't checked whether "bond" is a defined term. But even if it's not technically a bond, the fact that it's styled as a sale-and-leaseback ought not to make too much difference, although it may determine what assets secure the bond. Since the Court correctly concluded that this was an investment contract that the securities law regulates, it doesn't matter much whether they should have analyzed whether this security was functionally a bond. But it shows why the Eleventh Circuit had to be wrong: whether you're covered by the securities laws can't depend on whether you call an instrument which is functionally equivalent to a covered security by an arbitrary different name.
9:02 am
Castro v. United States
Castro v. United States, 02-6683. Justice Breyer wrote the majority opinion, which the Chief Justice and Justices Stevens, O'Connor, Kennedy, Souter, and Ginsburg joined. Justice Scalia wrote a separate opinion concurring in part and concurring in the judgment, which Justice Thomas joined.

Castro is an interesting case at the meeting point of several different procedural issues. By long tradition, courts construe the filings of pro se litigants liberally, treating them as raising any issues even vaguely raised. This policy protects the rights of litigants who cannot afford lawyers, ensuring that the poor are not disadvantaged. But this case deals with the situation where a prior court's decision to construe a pro se litigant's filing as something other than he intended would result in his being procedurally barred from filing a later motion.

The petitioner, a federal prisoner, moved for a writ of habeas corpus. The district court denied his motion, but the Eleventh Circuit remanded for reconsideration on his claim that he received ineffective assistance of counsel at his trial. The district court appointed counsel and then concluded that he was procedurally barred from filing for a writ of habeas corpus because he had filed a prior habeas petition and had not received permission from the court of appeals to file a second petition. The Eleventh Circuit affirmed. The Supreme Court granted cert to resolve a circuit split over whether a prior motion which was construed by the court as a habeas petition barred consideration of a latter habeas motion. The Court reversed and remanded the case to address the substantive claim.

The Majority Opinion

Justice Breyer wrote the majority opinion. He began by explaining the rather convoluted procedural history of the case. In 1994, Castro filed a motion that he styled as a Rule 33 motion for a new trial, seeking to overturn his federal drug conviction. The Government responded that his claims were best considered as a federal habeas petition, and the district court rejected his claim in an opinion usually referring to the motion as a Rule 33 motion but twice referring to it as a habeas petition. Castro appealed, still unrepresented, and the court of appeals affirmed the denial of the motion as both a Rule 33 and a habeas motion. Castro did not appeal the recharacterization of his motion.

In 1997, Castro filed a pro se habeas petition. The petition included claims that were not raised by his first motion, including the claim that he should receive a new trial because of ineffective assistance of counsel at his original trial. The district court denied his motion and Castro appealed. The court of appeals remanded for reconsideration of the ineffective assistance component but also stated that the district court should determine whether this was a second habeas petition. Under federal law, prisoners who seek to file a second or subsequent habeas petition must apply to the court of appeals for permission first. The district court appointed counsel and concluded that the 1994 motion was Castro's first motion, and thus that the 1997 motion was procedurally barred. The appeals court urged district courts to inform pro se litigants of the consequences of recharacterizing a motion as a habeas motion, but affirmed the district court's decision even though Castro was not warned. The Supreme Court granted cert to resolve a circuit split.

Breyer's legal analysis began with a jurisdictional matter. The statute that requires prisoners to seek the permission of the court of appeals prior to filing a second habeas petition states that the Supreme Court cannot grant a writ of certiorari in response to the denial of permission. The Supreme Court thus had to determine whether it had jurisdiction to consider this case. Justice Breyer concluded that the Supreme Court did have jurisdiction, because the issue in this case was not whether the court of appeals properly denied permission to file a second habeas petition, but whether the petition was a second habeas petition at all. The Court also noted that the government can petition for writs of certiorari when a court of appeals concludes that a habeas petition is a first petition, and that it would be unfair to treat petitioners differently. The Court also noted that it was not clear that Congress intended to bar consideration of applications like this one, and that the Supreme Court construes restrictions on its jurisdiction narrowly. Consequently, he concluded that the Court had jurisdiction and moved on to the substantive question.

The federal courts have traditionally recharacterized pro se motions that would more accurately have been stated in different terms. Those decisions can avoid dismissals, prevent artificial pleading requirements from being a barrier to substantive justice, and conform a motion's label to its substance. Most circuit courts require district courts that recharacterize motions as petitions for habeas relief warn the petitioner of the consequences of the recharacterization, so that the petitioner can either withdraw the petition or amend it to include any other claims to avoid the restrictions on raising those claims in a later motion. The Supreme Court exercised its supervisory power over the federal courts to make those requirements mandatory. If a trial court does not give the petitioner a warning about the effects of recharacterization, the motion cannot be counted against the petitioner for determining whether a habeas petition is a second petition.

Justice Breyer then considered whether there was any special reason such that Castro should not benefit from the new rule. The ordinary rule is that the litigant whose case announces a new rule always benefits from that rule retroactively. But the Government argued that the recharacterization of Castro's first motion as a habeas petition was "law of the case" because he did not appeal that recharacterization. The Court rejected this argument. The point of the warning necessary for the recharacterization to be effective is to allow the petitioner to make an informed choice about whether to accept the recharacterization. That means that the lack of warning makes the decision on whether to appeal equally unknowing. Furthermore, law of the case is merely a standard practice of courts and does not limit the power of the courts. Consequently, Castro's motion should be treated as his first habeas petition and the district court should reach the issue of whether he was given effective assistance of counsel.

The Concurring Opinion

Justice Scalia wrote an opinion concurring in the judgment, joined by Justice Thomas. He joined the majority opinion's statement of the procedural history and analysis of the jurisdictional question. However, Justice Scalia argued that the Court did not adequately consider when recharacterization is permissible in the first place.

Justice Scalia reasoned that recharacterization is highly unusual, because it departs from the general principle that litigants are the masters of their own case and may characterize their motions as they please. Justice Scalia criticized as paternalistic any departure from the general principle that parties can control their own case. He argued that motions ought not to be recharacterized if there is any risk that the movant will suffer from the recharacterization, because the harm of a court recharacterizing a motion to the detriment of the movant is so much greater than the harm of allowing the occasional movant to fail because they mischaracterized their motion. Justice Scalia suggested, without clearly stating, that courts should never recharacterize motions as first habeas petitions, because even when recharacterization is necessary for relief, it could result in a harm to the movant if the court of appeals disagrees on the merits. But Justice Scalia did state unambiguously that where the first motion is proper without recharacterization, courts should rule on it as it is, without recharacterizing it. He concluded that the 1994 motion was perfectly proper as a Rule 33 motion and thus should not have been recharacterized.


The judgment of the Court is clearly correct. The liberal treatment of the pleadings of pro se applicants protects their interests; for that to be twisted into a rule that causes their motions to fail procedurally would be unconscionable. The only real question is whether the concurring opinion is correct in asserting that the main problem is an unwillingness to respond to motions on the terms they are drafted on.

Justice Scalia is wrong to suggest that courts should never recharacterize motions as motions for habeas relief. Rejecting a motion that ought to be granted because a pro se litigant did not frame it in the right terms exalts form over function and would be horribly unfair to the litigant whose lack of a lawyer deprives them of their ability to escape an unjust prison sentence, which after all is what habeas relief is about. The extreme example would be a petitioner who is wrongly executed for failure to properly frame a motion, but the logic applies to the movant who wrongly remains in prison despite innocence or a fundamentally unfair trial. Perhaps Justice Scalia did not actually advocate the strict standard because of this unfairness. But at the same time, as Justice Scalia pointed out, the standard cannot be recharacterize only when relief would be granted. Among other things, that would advantage litigants who mischaracterize their habeas applications. If the court would grant it as a habeas application, it would be recharacterized. If it would not, the prisoner escapes the restrictions designed to prevent prisoners from repeatedly filing habeas applications. The only solution that adequately avoids both of those problems is to treat applications as what they really mean, not as how they are framed, but to provide pro se litigants with the information to understand the consequences of any recharacterization. That, of course, is the majority's rule. As a result, I think the majority correctly decided this case.
Sunday, January 11th, 2004
4:09 pm
Maryland v. Pringle
Maryland v. Pringle, No. 02-809. Opinion by Chief Justice Rehnquist for a unanimous court.

Maryland police stopped a car that contained three people. After receiving consent from the driver, they searched the car and found drugs. They arrested all three occupants of the car, and one of the passengers confessed to owning the drugs. At trial, he argued that his confession should be suppressed because the police lacked probable cause for the warrantless arrest. The state trial court disagreed, and he was convicted. The intermediate court of appeals affirmed his conviction, but the court of last resort for Maryland reversed. The Supreme Court granted certiorari and reversed, reinstating the conviction.

The Opinion

The Chief Justice wrote the short opinion for a unanimous court. He began by laying out the facts. The Baltimore County police stopped a car for speeding at 3 A.M. Besides the driver, the car contained Joseph Pringle in the front passenger seat and another passenger in the rear seat. The police officer asked the driver for his license and registration, which he retrieved from the glove compartment. When he opened the glove compartment, the officer noticed a large wad of cash. The officer asked the driver to get out of the car and requested permission to search the car, which was granted. He found five baggies containing cocaine hidden behind the rear passenger seat armrest, in addition to the $763 in the glove compartment. None of the occupants of the car admitted owning the drugs at the time, so the police arrested all three men. At the station house, Pringle confessed that he owned the drugs and had planned to sell them at a party or to trade them for sex. Pringle said that neither of the other occupants of the car knew about the drugs, and they were released. A jury convicted him of possession of cocaine and possession of cocaine with intent to distribute, and he was sentenced to ten years imprisonment without parole.

After laying out the procedural history, the Chief Justice began his legal analysis. He started with some basics about the Fourth Amendment, which amount to the proposition that police may make warrantless arrests when they have probable cause to believe that a felony has been committed and that the person arrested committed the crime. No one disputed that the presence of the cocaine produced probable cause to believe that someone had committed the crime of possession of cocaine. The question is whether the officer had probable cause to believe that Pringle committed the crime.

The Chief Justice Rehnquist spent some time stating that probable cause is not a technical term, being based on the totality of the circumstances and the judgments of reasonable people. He stated that it cannot be reduced to a matter of percentages or probabilities, but requires a reasonable, particularized belief of guilt. The Chief Justice quoted many prior opinions to support his statements. He also quoted an opinion that stated that probable cause is not akin to standards like preponderance of the evidence or proof beyond a reasonable doubt, which measure how much evidence must be presented to prevail at a trial.

The Chief Justice then reviewed the evidence, noting in a footnote that the Maryland Court of Appeals was wrong to view the money as irrelevant because it provided additional evidence when considered together with the drugs. He stated that it would be a reasonable inference that one or all of the occupants of the car had control over the drugs sufficient to constitute possession. He then distinguished two cases that Pringle had relied on for his argument that this was a guilt by association case.

The first case threw out evidence found in a search of a patron of a bar when police executed a search warrant on the bar. The Court held in that case that the probable cause to believe that the bartender was involved in criminal activities did not give the police sufficient reason to suspect the bar's patrons. The Chief Justice noted that a car is much smaller than a bar and that the police could reasonably have inferred that the occupants of this car were involved in drug dealing together.

The Chief Justice also distinguished a case where federal officers arrested two individuals who were in a car together with a government informant, who told the police that only one of the other occupants of the car was involved with the crime. Under those circumstances, the police lacked probable cause to arrest the other passenger. In contrast, none of the people in the car in this case gave the police any information about who owned the drugs until Pringle confessed. Because the police had probable cause to arrest Pringle, the Supreme Court reinstated his conviction.


I agree with the Supreme Court's conclusion in this case. Probable cause requires reasonable belief that someone may have been involved in a crime. My criminal procedure professor used to argue vigorously that if the police know that someone out of a set of 3 or 4 people committed a crime, they could arrest all of the suspects. He convinced me that he was right, even though that makes the "probable" in probable cause more than a little misleading: probable cause really means "significant possibility cause." This case comes awfully close to a law-school hypothetical, and quickly provokes other hypotheticals. What if there had been 4 people in the car? 5? 8 people in a minivan?

While I agree with the Court's conclusion, I'm not entirely satisfied with its analysis. Partially, this amounts to a general criticism of the Court's approach to probable cause analyses. Like in Banks, the Court insists on a totality of the circumstances, reasonable-person test. While it makes some sense to rely on the expertise that police and courts build up in considering tons of probable cause determinations, it still makes me uncomfortable.

Most cases don't break down to easy percentage analyses. But this case comes awfully close. There are roughly two possibilities: one person had the drugs or several of the occupants of the car were involved. If one person had the drugs, then Pringle has an approximately 1 in 3 chance of being guilty, although perhaps a little less because he was neither the driver nor the nearest passenger. But if more than one person had the drugs, then Pringle is either definitely involved (if all three were involved) or very likely to be involved (if only one of the passengers was not involved). So there is a strong possibility of Pringle being guilty, well more than 1 in 3 and possibly even more than 1 in 2. While this isn't susceptible to precise measurements, it's also not purely speculative. Rather than simply relying on "reasonable" conclusions, I would prefer the Court to show some more willingness to say that a 1 in 3 chance is sufficient to justify probable cause, and this case provides well more than 1 in 3 chances.

Of course, given the practical realities of most cases, even setting a hard standard, such as more than 25 % chance is enough and less is not, would not resolve all doubt. So perhaps the more mushy analysis advanced by the Court is good enough. But I would prefer more rules that provide clear guidance, even if the application to specific fact patterns is difficult, to an approach that relies on vague judgments of what is and is not reasonable in light of the experience of police and judges.
Sunday, January 4th, 2004
9:14 pm
Virginia v. Maryland
Virginia v. Maryland, No. 129, Orig., Majority opinion by Chief Justice Rehnquist, in which Justices O'Sconnor, Scalia, Souter, Thomas, Ginsburg, and Breyer joined. Justice Kennedy wrote the principal dissent, in which Justice Stevens joined. Justice Stevens also wrote a dissent, which Justice Kennedy joined.

The Supreme Court has original jurisdiction over a small category of cases. Original jurisdiction is in contrast to appellate jurisdiction, which means that these are cases where the Supreme Court serves as a trial court. The most important category of cases where the Supreme Court has original jurisdiction is cases where one of the fifty states has sued another state. In this case, Virginia and Maryland were continuing a centuries old dispute over who controls the waters of the Potomac River. Virginia maintains that it has a right to draw water from the Potomac for its communities' use, while Maryland argues that Virginia needs to seek permission so that the environmental impact can be considered. Virginia filed a complaint and the Supreme Court assigned the case to a special master who heard evidence and filed a report and recommended that the Supreme Court grant judgment in favor of Virginia. The Supreme Court overruled Maryland's exceptions to the special master's report and granted Virginia the relief sought.

The Majority Opinion

Chief Justice Rehnquist wrote the majority opinion. After briefly describing the topography of the Potomac River, he described the historical background of the dispute. Both Maryland and Virginia asserted authority over the Potomac based on royal charters issued in the 17th century. Virginia traditionally claimed ownership of the Potomac under both the 1609 charter issued by James I of England and under the 1688 patent for Virginia's Northern Neck issued by James II. Maryland, in turn, asserted ownership of the whole river under the 1632 charter Charles I issued to Lord Baltimore. In its 1776 constitution, Virginia ceded the Potomac River to Maryland, to the extent that the river was granted to Maryland in the 1632 charter, except "the free navigation and use of the rivers Potowmack and Pocomoke, with the property of the Virginia shores or strands bordering on either of the said rivers, and all improvements which have been or shall be made thereon." Maryland, however, asserted that it had sole authority over the river and rejected Virginia's reservations.

The states sought to resolve the resulting conflicts by sending commissioners to negotiate a solution at Mount Vernon in 1785. The commissioners' resolution was binding, and the legislatures of the two states subsequently ratified it. The Seventh Article of the 1785 Compact stated: "The citizens of each state respectively shall have full property in the shores of Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river." But the Compact did not resolve all disputes, because the boundary line between the states was still unsettled, and so the states appointed arbiters in 1874, who set the boundary line in Maryland's favor. The Black-Jenkins Award, as it was called, set the boundary line as the low-water mark on the Virginia side of the river. However, the Award also stated "Virginia is entitled not only to full dominion over the soil to low water mark on the south shore of the Potomac, but has a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership, without impeding the navigation or otherwise interfering with
the proper use of it by Maryland, agreeably to the compact of seventeen hundred and eighty-five." The two legislatures ratified the Black-Jenkins Award, and Congress approved it, as required by the Compacts Clause of the Constitution, which forbids the states from entering into compacts with each other without Congressional Consent. The 1785 Compact, of course, predated the Constitution, and so did not need Congressional assent at the time; the Court later ruled that the Congressional ratification of the Black-Jenkins Award also ratified the 1785 Compact.

Having laid out the history of these disputes, the Chief Justice then described the history of Maryland's regulations of Potomac water-use. Maryland adopted a licensing regime in 1933, requiring persons who wish to use water from the Potomac to seek a license. Starting in 1957, Maryland issued many water-use permits to Virginian entities such as Fairfax County. In 1996, the Fairfax County Water Authority sought permission to run an intake pipe 725 feet into the Potomac's tidal reach, to draw fresh water to improve the water quality for residents of the County. The Maryland Department of the Environment denied the permit. All previous permit requests by Virginian entities had been granted. Fairfax County pursued a series of appeals, arguing at each stage that it had a right to the project under the 1785 Compact and the Black-Jenkins Award, and sought relief from the Supreme Court. Maryland ultimately issued the license, but subject to the condition that the intake pipe have a restrictor that would limit the maximum amount of water that could be drawn.

The matters argued to the Court were whether Maryland had a right to restrict the use of Potomac water by Virginia under the 1785 Compact and the Black-Jenkins Award and whether, if it did not, Virginia had acquiesced to Maryland's exercising control over the river by not previously challenging Maryland's authority. The core concern is interpretation of the Compacts, which the Court treats as a matter of statutory interpretation.

The Chief Justice focused on the language from the 1785 Compact, set forth above, recognizing the property rights in the shores of the Potomac. He noted that no mention is made of the authority of any sovereign to regulate those decisions, unlike the provision on fishing, which grants the people of each state the right to fish the Potomac subject to regulations agreed upon by both states. From this the Court concluded that neither state could exercise sovereign authority over people of the other state that interfered with those property rights. The Chief Justice rejects Maryland's assertion that its sovereignty over the river was well-settled before the Compact, arguing that the historical evidence shows that the question of sovereignty was hotly disputed and was not resolved until the late 19th century, and that Maryland is thus not entitled to the presumption that a state does not yield sovereignty unless it acts explicitly. He further notes that Virginia sought to reserve its authority over the Virginia shores of the Potomac in its 1776 Constitution.

The Chief Justice then moved on to construe the section of the Black-Jenkins Award that guaranteed Virginia's riparian rights to the river. Riparian rights are the rights which a land-holder traditionally has to use a watercourse which runs through or by the land, typically for uses such as hunting, fishing, boating, and irrigating. Chief Justice Rehnquist noted that Virginia urged before the Black-Jenkins arbiters the position that the river ought to be divided down the middle. He concluded for the Court that the provision of the Black-Jenkins Award addressing riparian rights granted Virginia sovereign authority to reach out into the river, but only for riparian uses, and that this included the right to build structures beyond the low-water mark that were necessary for the enjoyment of those riparian rights. He argued that those were true sovereign rights, not a mere recognition that the citizens of Virginia have riparian rights as land owners. He concluded that Virginia has a sovereign right to build structures for riparian purposes, only limited by Maryland's coequal right to do likewise and by an obligation to not interfere with navigation or with Maryland's use of the river.

Having concluded that Virginia at one time had a right to use the water unregulated by Maryland, the Court next considered whether that right had been lost by acquiescence. A long and continuous assertion of sovereignty by one state over territory, unchallenged by another state, will terminate the second state's sovereignty over the territory under the doctrine of acquiescence and prescription. This is essentially similar to the private property law doctrine of adverse possession, which allows open and notorious use of land to be converted to ownership. Maryland presented evidence of 125 years of regulation of other conduct beyond the low-water point. As to the issues of regulation in this case, the Chief Justice concluded that Maryland had only asserted its rights for 43 or 32 years, depending on how things are counted and that that might not be long enough, although the Supreme Court had previously concluded that 41 years was long enough in a different dispute. The Chief Justice rested his conclusion, however, on Virginia's failure to acquiesce, not in the duration of the prescription. Virginia protested that Maryland did not control the use of the Potomac's waters during the negotiations leading up to a 1976 act of Congress regulating use of the Potomac. That act ultimately stated that it had no effect on Virginia's riparian rights. The Court concluded that the protests in 1976 were sufficient to prevent prescription, although it alluded to other protests by Virginia. Rejecting Maryland's last argument, the Court granted Virginia the right to draw water from the Potomac without submitting to Maryland's regulations.

The Dissents

Justice Stevens wrote a brief dissent, which Justice Kennedy joined. He started by noting that Maryland owns the entirety of the river and thus has sovereign authority over the river. He thus framed the issue as whether riparian owners have the authority to withdraw water from a river unlimited by regulation by a sovereign. Furthermore, he pointed out that under Virginia law, supplying water to the inhabitants of an area is not a riparian use. Justice Stevens thus concluded that riparian landowners, including the counties of Virginia, may be denied permission to draw water for domestic uses and that Maryland, as the sovereign of the river, is entitled to do so.

Justice Kennedy wrote a much more extensive dissent, which Justice Stevens joined. Justice Kennedy began by noting that when one party has clear title to property, the fact that another party contested that title for a long time prior to an adjudication has no significance. As a result, and particularly when sovereignty is involved because every piece of property must be under some state's jurisdiction, determinations of boundaries must have retrospective effect. As a result, he argued, prior to the 1785 Compact Maryland had complete sovereignty over the water and riverbed of the Potomac, and any claims that Virginia has must derive from the Compact or the Black Jenkins Award. The question is thus whether Maryland ceded any sovereignty over the river to Virginia.

Justice Kennedy analyzed Article 7 of the 1785 Compact as a "hedging agreement," where each state agreed to not exclude the other's citizens from the river if it lost the dispute over sovereignty. It reduces the scale of a win, but it crucially ensures that a loss is not disastrous. After Maryland won the dispute, the article became relevant, because it creates some rights for Virginia that would otherwise have been extinguished by its loss. It thus creates a right to build improvements on the Virginia shore to take advantage of riparian rights.

However, the dissent continued, Article 7 does not abrogate Maryland's police power. Under this reading, Virginia's riparian rights are the rights of a landholder, not the rights of a sovereign. Other articles of the 1785 Compact allocated the police power, such as the shared authority for fish regulations; because Article 7 did not expressly allocate the police power, it should be interpreted as only allocating ordinary landholder rights. As a result, Article 7 requires the Court to wrestle with the issue of whether a landowner's right of access is being infringed by a state's exercise of the power to regulate access. However, Justice Kennedy concluded, the Court cannot avoid that question by construing the Compact to say something other than what it says.

Justice Kennedy then moved on to consider whether the Black-Jenkins Award changed the situation from what existed in 1785. He argued that the right of access that it acknowledges for Virginia is the same as the right of access for citizens of Virginia created by the 1785 Compact. Furthermore, the "full dominion" of Virginia only extends up to the low-water mark, and is distinct from the further, merely riparian, right to build appurtenances. And the Black-Jenkins Award was limited to merely including, but neither defining nor expanding, the riparian rights created by the 1785 Compact. In essence, Justice Kennedy concluded that the Black-Jenkins Award did not affect Virginia's riparian rights at all. He also briefly rejects any analysis based on the federal common law of interstate bodies of water, on the ground that the Potomac is not an interstate body of water but is defined to lie wholly within Maryland.

Justice Kennedy then discussed the awkwardness of determining whether Maryland is overregulating access, but still insisted that the correct question for Virginia to submit to the Court was whether Maryland violated its right of access or whether the structure somehow violated Virginia's status within the federal system. But he concluded that this case should have been decided against Virginia, and that those questions should be reserved for a case that actually presents them.


This case is fairly arcane. I had to look up "riparian rights" to make sure that I understood what the Court was talking about. It's certainly not something I've spent much time thinking about, so I'm not very confident about my judgment. All that said, I think that the dissents have the better of this argument. I'll discuss the reasoning that was most persuasive and then briefly note a few minor interesting issues.

Justice Stevens's dissent succinctly covers the core issue. The Black-Jenkins Award establishes that Maryland is sovereign over the Potomac, while both the 1785 Compact and the Award acknowledge the riparian rights of Virginia and Virginians. Without strong reasons to think otherwise, Maryland should not be viewed as having waived its authority to exercise that sovereignty. Virginia does have a meaningful right under the Compact; it can insist on reasonable access, and if Maryland sought to deny its riparian use of the river, it would have a case. Requiring Fairfax County to follow a reasonable set of regulations, ultimately leading up to the County being permitted to withdraw water but only up to a certain flowrate, is hardly a denial of those rights.

The conclusion that the Court reached has the particularly worrisome aspect of essentially leaving nobody with the police power over riparian uses of the Potomac. Maryland does not have it, because this decision denies it. Virginia does not have it, because Maryland controls the Potomac. And the federal government does not have it, because the river is not an interstate water. That's problematic. And, as Justice Kennedy described, the fact that other Articles of the 1785 Compact allocated the police power between the states strongly implies that the police power over riparian rights was not divided, and lies with whichever state has jurisdiction over the river. To read a fairly opaque text as defining an area (even to a limited extent) as beyond the sovereignty of everyone is fairly bizarre, although Maryland could presumably have explicitly waived its ability to regulate riparian uses. In general, the Court seems more willing to state that neither state has the power to regulate the use of the Potomac than I think makes sense, without clear evidence to support its conclusion. Justice Kennedy's textual analysis seems stronger to me.

Justice Kennedy's analysis of the retroactive effect of ownership determinations raises some interesting questions. The whole analysis feels a little too formalist to make me comfortable. At the same time, it does makes some logical sense: someone had to have owned the river. But ultimately, I think that Justice Kennedy is wrong to put much reliance on it. The point is that the 1785 Compact was made against a background of doubt. It should thus be interpreted as a binding effort to eliminate that doubt, and should not be interpreted as having a particularly strong presumption against waiving sovereignty, except for the general presumption that sovereignty should exist in some state. But once he gets into the specifics, he fixes any error that an overly formalistic set of presumptions might have created by using perfectly sound textual evidence to analyze Article 7. Ultimately, the fact that Article 7 does not waive any sovereign powers, where other articles specifically pool, transfer, or eliminate the police power ought to be determinative, as Justice Kennedy concluded.

Even if the Court was correct in its analysis of the effects of the Compact and Award, there are two other issues that ought to be considered. First, I'm skeptical about its prescription analysis. 30 or 40 years is a substantial amount of time, and it would be reasonable to conclude that that's long enough for prescription to run. The precedent that the Chief Justice gestures at to suggest that it isn't does not really carry that weight. So the real question is whether Virginia protested enough and fought the issue when it could. The failure to simply refuse to seek a license to litigate the issue seems meaningful to me, although it could be argued that the issue isn't really ripe until the license was denied. And the concerns around the 1976 act seem overblown, because the bill proposed by Maryland would have had a broader sweep. That said, neither dissent looked at this issue, because on their analysis it was unnecessary, and it's not clear that Virginia did not act sufficiently to preserve the issue. In general, maintaining a low threshold for objecting to prevent prescription makes sense, so the Court may have been right here, even if its treatment was too cursory.

Second, the Court never addresses whether drawing water for a municipal water supply is really a riparian use. It's not clear to me that Justice Stevens looked to the right source by examining Virginia law; after all, since the Potomac is Maryland, shouldn't the Court use Maryland law to determine whether this is a riparian use, or at least look to general common law principles at the time of the Compact? But leaving aside the choice of law issue, it seems that where the Compact and the Award both provide that Virginia has riparian rights, the question of whether this use was in fact riparian should have been addressed. Even if Virginia would ultimately win that determination, the majority should have addressed it.
Tuesday, December 9th, 2003
6:20 pm
Raytheon Co. v. Hernandez, No. 02-749. Unanimous (7-0) opinion by Justice Thomas, with Justice Souter taking no part in the decision of the case and Justice Breyer taking no part in the consideration or decision of the case. (I don't know why the notation is different for Justice Souter and Justice Breyer. As far as I can tell, Justice Souter participated in the decision on whether to grant cert, but Justice Breyer did not. I do not know if Justice Souter participated in oral argument.)

The Supreme Court granted cert in this case to consider the question of whether policies that discriminate against applicants for jobs on the basis of their prior history of illegal drug use while previously employed by the company violate the Americans with Disabilities Act. For largely procedural reasons, the Supreme Court did not reach that interesting question, but reversed and remanded on other grounds.

The Opinion

Respondent Hernandez worked for a company now owned by Raytheon for 25 years. In 1991, the company required him to take a drug test because his appearance and conduct at work suggested a drug or alcohol problem. He tested positive for cocaine and resigned under the threat of being fired. While the Americans with Disabilities Act (ADA) treats some addictions as disabilities, it permits employers to dismiss employees for illegal drug use. After entering recovery from his addiction, he applied for a new job with the same company in 1994. Along with the customary application materials, he submitted letters from his pastor and his A.A. counselor testifying about his rehabilitation. The company rejected his application. The human resources employee who handled his application testified that she was unaware of his addiction and that she applied a company policy that barred re-employment for employees who had previously been terminated for misconduct. However, the company's Manager of Diversity Development stated in a letter to the Equal Employment Opportunity Commission after Hernandez filed a complaint that "Complainant’s application was re jected based on his demonstrated drug use while pre-viously employed and the complete lack of evidence indicating successful drug rehabilitation." The EEOC issued a right-to-sue letter to Hernandez, and he filed a federal law suit under the ADA.

After discovery, the company moved for summary judgment. Hernandez argued that summary judgment should be denied because the company had violated the ADA, arguing both that he was the victim of disparate treatment because of his disability and, in the alternative, that if the company applied neutral policies to his application those policies have a disparate impact on people with disabilities. The district court refused to consider the disparate impact claim on the grounds that Hernandez had failed to plead it sufficiently. The district court granted summary judgment on the disparate treatment claim. The Ninth Circuit court of appeals affirmed the district court's decision on the disparate impact claim, and Hernandez did not seek Supreme Court review. The court of appeals reversed and remanded on the disparate treatment claim, and the company filed a petition for certiorari, which was granted.

Justice Thomas concluded for the Court that the court of appeals had incorrectly conflated standards associated with disparate impact and standards associated with disparate treatment. The Court did not consider the disparate impact claim, although that's where the really interesting legal question would be. The Court was correct to do so, because that issue was not before the Court after both lower courts refused to hear it for procedural reasons and Hernandez did not seek review. The Court then applied the standard McDonnell Douglas test to determine whether summary judgment should be granted on the disparate treatment claim.

The McDonnell Douglas test is used to resolve many claims of discrimination and has three parts. First, the plaintiff must make a prima facie case of discrimination. Because the petitioner did not challenge the Ninth Circuit's conclusion that a prima facie case had been made, the Supreme Court did not consider that issue. Second, the defendant must provide a lawful, neutral and nondiscriminatory reason for the action challenged. The Ninth Circuit concluded that, as a matter of law, the company failed to provide a satisfactory nondiscriminatory reason for its policy. The third stage, which was not reached by the court of appeals because the defendant had failed to justify summary judgment by proving that it was entitled to summary judgment on either of the first two claims, is the issue of whether the purported reason was simply pretextual. A defendant's summary judgment motion can be granted if either the plaintiff failed to make out a prima facie case sufficient to justify trial, or the defendant responded with a neutral reason sufficient to justify summary judgment and the plaintiff failed to make a sufficient showing of pretext to force a trial on that issue.

The crux of the issue before the Supreme Court was whether a policy of not rehiring any employees who have been dismissed for misconduct is neutral and nondiscriminatory. The Ninth Circuit held that it was not, because that policy has an adverse impact on people with disabilities related to addiction to illegal drugs. But the Supreme Court held that that analysis was wrong, improperly considering a disparate impact matter when the question was whether the plaintiff was intentionally discriminated against because of his disability or apparent disability. Whether the rule itself is invalid because it has a discriminatory impact has to wait for another case that properly presents the discriminatory impact claim.


The Court's analysis is correct. If a general rule that is neutrally applied isn't a sufficient nondiscriminatory reason, then it's hard to figure out what would be. The rule may result in disparate impacts that allow harmed employees or prospective employees to win under the ADA, but that's the claim that was procedurally barred. And while there are good reasons to be suspicious of procedural bars, because they often result in courts never resolving the question of whether there was illegal conduct, the rule that the Supreme Court only reviews the issues presented to it in petitions for certiorari is a good one. Otherwise, poorly argued issues that one party didn't realize were under consideration could result in the Supreme Court making inadvisable holdings and hurting everyone who is affected by the area of the law under consideration. And while it's too bad for Hernandez personally, the nature of procedural bars is that they prevent determinations of all of the issues fully, to serve other interests that we care about, like allowing efficient and fair litigation. On the note of litigation efficiency, it's been nearly a decade since Hernandez was allegedly discriminated against; that's a long time for a case to go without resolution, and, depending on what happens next, this case could easily last a while longer. If Hernandez's lawyer made a sufficiently bad decision on the question of whether to plead the disparate impact or the disparate treatment theory, where it seems obvious from hind-sight that they should have pled both, Hernandez may have a malpractice action, although legal malpractice actions are notoriously difficult to win.

Hernandez may still be able to go to trial. On remand, the question will be whether he showed enough evidence that the neutral rule was pretextual to go to trial. The fact that a representative of the company, speaking on its behalf, stated that he was not hired because of his addiction and the lack of evidence of rehabilitation strongly suggests that he was not, in fact, rejected because of a neutral rule. Additionally, the human resources employee's claim that she did not even know about his addiction seems curious in light of the letters that Hernandez submitted with his application that addressed the issue, although it is possible that she never made it that far through the application. But those are all questions for the lower courts to work through. The really important question, whether the company is allowed to have the rule that it claims it has in light of the impact that has on people in recovery from drug addiction, has to wait for a different case.
Monday, December 8th, 2003
10:39 pm
United States v. Banks, No. 02-473, unanimous opinion by Justice Souter.

The Supreme Court considered how long police must wait after announcing that they are serving a search warrant but before knocking the door down. The Ninth Circuit held that a 15-20 second wait was insufficient, but the Supreme Court reversed.

The Opinion

Banks pled guilty to several drug and firearm charges after crack, firearms, and other evidence of drug dealing were found in his apartment. Banks conditioned his plea on a right to appeal the district court's ruling that the drugs and other evidence were admissible evidence. He argued on appeal that the evidence should have been suppressed because the police did not wait long enough after knocking and announcing that they were serving a search warrant. The Ninth Circuit agreed, by a 2-1 vote, and suppressed the evidence after considering eight non-exhaustive factors. The Supreme Court granted the Government's petition for a writ of certiorari and reversed.

Justice Souter's opinion emphasized the "totality of circumstances" in determinations of whether the conduct of the police while serving a warrant is reasonable. After describing the procedural history, Justice Souter noted that there was no issue of whether the police were required to knock while serving this warrant and discussed the requirements for "no-knock" warrants. He stressed that there are no bright-line rules on when the service of a warrant is reasonable, but only considerations of different facts that have different weights under different circumstances. When a warrant application shows reasons to think that knocking and announcing would be futile or would cause harm to the officers or destruction of evidence, a magistrate may constitutionally issue a no-knock warrant. Justice Souter also noted that forced entry by the police, whether pursuant to a no-knock warrant or when exigent circumstances require forced entry during the service of a warrant, is likely to cause property damage because most people lock their doors, and thus the breaking of a door does not particularly raise the standards.

Justice Souter then analyzed the facts of this case. The police served the warrant at 2 PM on a Wednesday by knocking loudly on the front door (so that the officers assigned to watch the rear exit could hear the knocking), waiting 15-20 seconds, and then knocking down the door with a battering ram. When the police knocked down the door, Banks emerged from a shower, dripping wet. He claimed that he did not hear the knocking, but the police had no reason to believe he was taking a shower or would be unable to hear the knocking. The Government argued that waiting longer would have created a serious risk that the evidence would be destroyed because crack cocaine can easily be flushed down a toilet. Justice Souter noted that a reasonableness evaluation could not depend on the fact that Banks was in the shower, where the police did not know that he was in the shower. He also rejected the argument that the time was insufficient to allow Banks to open the door even if he had heard the sound, both pointing out that a small apartment can be crossed in that amount of time and that the question was whether waiting longer would allow the evidence to be destroyed.

After concluding that the police had acted reasonably, Justice Souter spent an extended additional discussion stressing again how important it was to apply a case-specific, totality of the circumstances analysis. Some of his discussion in this section has the feeling of suggesting, as Eugene Volokh noted at volokh.com, that the Ninth Circuit has been insufficiently attentive to the Supreme Court's precedents, because Justice Souter points out the cases as examples where the Ninth Circuit had improperly overlayed an analytical framework over what should be a totality of the circumstances test.


The Supreme Court's conclusion that the police acted reasonably is probably correct. After all, suppressing evidence collected pursuant to a valid warrant because the police were unreasonable in their execution of the warrant is an extreme remedy, and 15-20 seconds is plenty of time to either answer the door or to begin destroying evidence. I checked, and I can cross my "small apartment" end to end at a slow walk in well under 15 seconds. And if the police banged on my door and said they had a warrant, I would certainly yell out to let them know I was coming before I got to the door (although it's unclear whether the police could then reasonably knock down the door because they thought I was trying to delay them).

The trouble is really all in the general approach. The Supreme Court insists on a "totality of the circumstances" determination that excludes even the listing of a non exhaustive list of factors to consider. Justice Souter's analysis pooh-poohs the Ninth Circuit's concern about "troubling uncertainties" and says that standards like a "significant amount of time" provide very little information. But by rejecting any sort of articulation of what factors matter beyond "considering everything, we think this is reasonable" the Court eliminates the possibility of any reasoned decision-making. They require police officers in the field to make a guess about what a court would view as reasonable, without being able to rely on any sort of structured process to figure out what is constitutional. And the Court hardly constrains the ability of lower courts to second-guess this decision; the same conclusion could have been reached by the lower court simply saying that the time was insufficient to be reasonable and that the police needed to wait a little longer. After all, the Court agreed with the dissenter on the court of appeals panel that it was a close call.

In making this into an unmanageable, ad hoc decision, the Court appears to be following a standard set of precedents. But when playing with constitutional rights, frameworks that allow courts and police to make consistent decisions that they know to be correct are crucial. I'm not terribly worried about the police breaking in too quickly when they have a valid warrant, although it does have some costs; the warrant itself preserves the core values of the Fourth Amendment. But insisting on a "totality of the circumstances" test that allows both officers to make unreasonable decisions because they have no checklist to show them that they're erring and guilty defendants to get evidence suppressed because officers were on the wrong side of a fuzzy line is a real cost. The value of Miranda rights and similar bright line rules is that they make determinations in the field easy and thus reduce the costs inflicted by errors. A similar sense of clarity would be valuable in judging whether a warrant has been executed reasonably, instead of just looking at everything and deciding whether it offends 5 justices (or 2 appeals court judges, in the run of the cases).
Wednesday, November 19th, 2003
11:32 pm
Boston Marriages Now Legal Marriages in Boston
Goodridge v. Dept. of Public Health, Supreme Judicial Court of Massachusetts, SJC 08860, Majority opinion (4-3) by Chief Justice Marshall joined by Justices Greaney, Ireland, and Cowin; Justice Greaney wrote a concurrence (it is a little unclear whether Greaney joined the majority opinion or just the decision); dissents by Spina, Sosman, and Cordy, each of whom joins the other two dissents.

Goodridge is a decision by the Supreme Judicial Court of Massachusetts, which is Massachusetts's court of last resort. I'm blogging about it because it's an important case on a topic that interests me, even though it's not within the main topic of this blog.

Goodridge was a challenge by seven same-sex couples of the refusal of Massachusetts city and town clerks to issue them marriage licenses. The plaintiffs range widely in age and include both men and women. Each couple has been together for years, in some cases decades, and four of the couples have children. The plaintiffs sued in state court, claiming that the marriage license statute did not prohibit same-sex marriages and that, even if it did, that would violate the state constitution. The trial court rejected both claims. The plaintiffs appealed, and the Supreme Judicial Court accepted a direct appeal on the request of both the plaintiffs and the defendants.

The Opinions

The majority opinion begins its substantive analysis by analyzing the statutory background. While Massachusetts statutes do not expressly forbid same-sex marriages, the court concluded, largely on the basis of the common law and historical practice, that as a matter of statutory interpretation marriage refers to a marriage between a man and a woman. The court bolstered this conclusion by pointing to the gender-specific rules about consanguinity, restricting the relationship between a man and the women he may marry and between a woman and the men she may marry. Having dispensed with the sideshow, the court then moved on to consider the real issue: does Massachusetts's prohibition on same-sex civil marriages violate the state constitution?

The majority starts the constitutional analysis by noting that this can be considered either as an equal protection claim or as a claim that the state is restricting a fundamental right. The court noted that those claims are frequently related. The court also noted that under Massachusetts law, civil marriage is a purely secular matter: no religious ceremony has ever been required, and civil marriage is a matter of the relationship of the two parties to the marriage and the state. Although the court does not mention this, that differs from the English tradition, where marriage law was historically a species of religious law, governed by the ecclesiastical courts. The court noted the substantial public benefits created by the institution of civil marriage, as well as the very substantial benefits that the parties derive from marriage, both tangible and emotional. In addition to the benefits that a married couple receives, the court discussed the benefits that children receive from having married parents, despite Massachusetts's abolition of legal benefits for legitimacy.

The court then briefly mentioned some precedent discussing marriage as a civil right, including Loving v. Virginia and other cases striking down miscegenation statutes and decisions in other states about same-sex marriage such as Baker v. Vermont. The court discussed at length the ignominious history of laws prohibiting interracial marriage, and the court decisions striking those laws down. The court also noted the authority of state constitutions to set higher levels of protections of liberty than the federal constitution. After all that build up, the court proceeded to analyze the law under rational basis scrutiny. The court reasoned that because the law failed rational basis review, it did not need to determine whether a higher level of scrutiny ought to be applied.

Levels of scrutiny are a standard legal analytic tool. Innocuous classifications that are not based on any suspect criteria are reviewed for a rational basis: if the legislature acted rationally, its actions will be upheld. In practice, rational basis review almost always results in the policy being upheld. Suspect classifications, such as race based distinctions, are subjected to strict scrutiny, which has famously been described as "strict in name and fatal in fact." Strict scrutiny requires that the policy be "narrowly tailored" to serve a "compelling state interest." There is also intermediate scrutiny, which is used under the federal constitution to test sex-based classifications, but none of the justices argued that intermediate scrutiny was appropriate in this case.

The majority opinion considered three rationales that the government had advanced to defend the policy: (1) the policy provided a "favorable setting for procreation;" (2) the policy encouraged the optimal setting for child-rearing; and (3) the policy effectively allocated scarce public and private resources. The court rejected each rationale in turn.

The majority noted that fertility is neither a requirement for marriage, nor grounds for divorce. Massachusetts does not require consummation for a marriage to be valid; indeed, a marriage where the couple states that they do not intend to ever have sex would still be legal. The court noted that impotency is a reason for divorce, but does not render the marriage void, and that where a wife knew that her husband was impotent prior to the marriage, divorce had been denied.

Furthermore, the court observed that Massachusetts law facillitates procreation and adoption regardless of marital status. The majority then likened this distinction to Colorado's Amendment 2, which was a constitutional amendment overturning local anti-discrimination laws and was invalidated by the Supreme Court under rational basis review, essentially on the ground that animus was not a rational basis. See Romer v. Evans.

The court then moved on to the related second justification, providing the optimal child-rearing environment. While promoting the welfare of children is clearly an important state interest, the majority concluded that banning same-sex marriages was not rationally related to that goal, because the state has recognized and afforded protection to families of many different structures. The court concluded that, with no evidence that banning same-sex marriages will increase the number of opposite-sex families, depriving children of the benefits of married parents because their parents' are the same sex is irrational.

The court then rejected the resource allocation argument. While the state argued that same-sex couples were less likely to need the financial benefits of marriage, the court rejected that rationale because some same-sex couples have dependants and the state does not condition receipt of marriage benefits on financial state in general.

Having rejected the three arguments that it viewed as most significant, the court then cursorily rejected arguments based on such notions as undermining the institution of marriage and the state's purported interest in making a value judgment about relationships. In doing so, the court again cited such precedents as the miscegenation cases to argue for an evolving, improving conception of marriage that is reaching out to include groups that were once excluded and discriminated against. The court also cursorily rejected any argument that permitting same-sex marriages will engender interstate conflict.

Turning to the question of remedy, the majority ruled that the marriage license rule as written was invalid, but that striking the marriage laws altogether would not satisfy anyone or effectuate the will of the people through the legislature. Thus, it ordered that henceforth marriage meant "the voluntary union of two persons as spouses, to the exclusion of others." It remanded to the trial court for entry of judgment, but ordered its decision stayed for 180 days to allow the legislature to react in whatever ways it viewed as appropriate.

Justice Greaney's concurrence relied on an analysis of equal protection doctrine. Massachusetts adopted a state Equal Rights Amendment as part of the nation-wide ERA movement. Even prior to the ERA, the Massachusetts Declaration of Rights included sweeping language requiring equal treatment. While the concurrence implies that the law might be invalid as an infringement of a fundamental right even without the ERA, it states that under the ERA, the law discriminates on the basis of sex: "Hillary Goodridge cannot marry Julie Goodridge because she (Hillary) is a woman." The disability is thus the same as the race based marriage disability struck down in Loving v. Virginia, where white and black people alike were prohibited from entering into interracial marriages. Under Massachusetts law, sex based classifications receive strict scrutiny. Justice Greaney concludes that, for the reasons stated by the majority, the asserted state interests are not "compelling" and the state did not demonstrate that those interests could not be satisfied by any other reasonable approach. The concurrence also rejected any reliance on the definition of marriage as tautological and circular: because marriage is defined as between a man and a woman, the state can define marriage to only apply to the relationship between a man and a woman.

Justice Spina wrote the first dissent. Justice Spina argued that restricting marriage to opposite sex couples does not constitute gender discrimination because a woman and a man are treated equally: neither is allowed to marry someone of the same sex. The justice then distinguished Loving by arguing that miscegenation laws were intended to maintain white supremacy and were part of a pattern of discrimination against African-Americans, even though they applied to both white and black Americans. Justice Spina went on to argue that no-one is deprived of a right to marry by the current law, and that unlimited choice in marital partners is not part of the right to marry. Furthermore, the justice concluded, same-sex marriage is simply beyond the scope of the right of marriage because of the essential nature of marriage. Justice Spina also criticized the remedy crafted by the court, arguing that the court lacks the authority to rewrite the statute by making it gender-neutral; it is unclear from the justice's opinion what remedy would have been appropriate, assuming the correctness of the court's substantive analysis. Justice Spina concluded by arguing that the due process clause has generally protected people from state intrusion, but that by allowing same-sex marriage, the court injected the state into the plaintiffs' lives.

Justice Sosman wrote the second dissent. Justice Sosman focused on the deference inherent in the rational basis test and whether the state could rationally choose to support opposite-sex marriages as the preferred family structure. The justice acknowledged that many other family structures are common, but questioned the court's conclusion that it would be irrational to provide special encouragement for one structure while tolerating and removing the disabilities of other structures. Justice Sosman emphasized that the majority built up a lot of momentum by discussing cases like Loving where higher standards were applied than rational basis review, but then purported to conclude that the legislature was irrational in choosing to credit some of the conflicting evidence on whether same-sex couples are as good parents as opposite-sex couples. The Justice also stressed the role of marriage as the cornerstone of our society, arguing that the legislature could rationally resist making changes to marriage until it was positive those changes would be for the better, even if it would be preferable, as a matter of policy, to permit same-sex marriages. In doing so, the justice noted "there is much to be said for the argument that excluding gay and lesbian couples from the benefits of civil marriage is cruelly unfair and hopelessly outdated; the inability to marry has a profound impact on the personal lives of committed gay and lesbian couples (and their children) to whom we are personally close (our friends, neighbors, family members, classmates, and co-workers); and our resolution of this issue takes place under the intense glare of national and international publicity." As a result of this "perfect storm" of factors, the justice concluded, the court distorted the meaning of rational basis review.

The final dissent was written by Justice Cordy; like each of the other two dissents, all three dissenters joined this opinion. Justice Cordy also focused on rational basis review; unlike Justice Sosman, the third dissent spent substantial energy on arguing why a higher standard of review is inappropriate. Justice Cordy first argued that there is no fundamental right to same-sex marriages. Justice Cordy reasoned that the majority's conclusion was conclusory, relying on the assumption that same-sex marriage is within the meaning of marriage in order to conclude that denying same-sex marriage limits the right of marriage. Justice Cordy argued that the court should instead have looked at the reasoning underlying prior cases about the right to marry, suggesting that those cases were outgrowths of courts' recognition of rights to procreate. Justice Cordy proceeded to analyze all of the intimate association cases as focused on sexual intercourse, going so far as to say that when Justice Goldberg discussed the intimacy of the marital relationship, he "was obviously referring to sexual relations." Justice Cordy went on to say that the plaintiffs' claims do not implicate privacy rights, because they ask for the involvement of the state in their relationship, not for the right to prevent the state's intrusion. Justice Cordy then made a more general argument for defining fundamental rights narrowly and cautiously, essentially to preserve as many areas as possible for political resolution rather than legal resolution.

Justice Cordy then proceeded to analyze the sex-discrimination claim. The justice argued that the point of the ERA is to prevent laws that favor men over women, or vice versa, and does not reach "separate but equal" treatment. Justice Cordy distinguished Loving by noting that the miscegenation laws were designed to stigmatize one race and that laws which support white supremacy are inherently different from this law, which the justice argued was not motivated by sexism. Justice Cordy also discussed the legislative history of the ERA, arguing that statements in legislative commissions and the popular press denying allegations that the ERA would lead to same-sex marriage show that the people of Massachusetts did not intend the ERA to reach that far. Justice Greaney responded to this argument in a footnote, noting a lack of support for originalist interpretations as a general philosophy and the pre-existing requirements of equal protection that existed before the ERA was enacted. Justice Cordy then articulated an extended argument for how a marriage law excluding same sex marriages could serve a rational interest, focusing on promoting a preferred family structure.


While the Massachusetts's court's decision is an important step forward for equality, the majority opinion is not very convincing. Rational basis review is traditionally an extremely deferential standard. In fact, the major cases where the Supreme Court has struck down laws under rational basis review are cases where the Court has concluded that the legislature could only be motivated by animus against a group. While rational basis review is sometimes interpreted as essentially meaningless and I support rational basis review with teeth, even rational basis review with teeth is highly deferential to the legislature. If we take rational basis review seriously, we need to credit decisions by the legislature resolving ambiguous factual questions, such whether same-sex couples are as fit parents as married heterosexual couples. Contrary to Chief Justice Marshall's opinion, the state could reasonably decide that permitting same-sex couples to adopt is in childrens' best interest, while still concluding that encouraging traditional families is superior policy. I certainly agree that permitting same-sex marriages is a superior decision, but if the question is whether a different conclusion is irrational, I think that Justice Sosman would be correct.

Fortunately for people who sympathize with the conclusion the court reached, rational basis isn't the correct standard. Justice Greaney's analysis handles the case much more accurately. Contrary to the arguments that the dissents made, this case is precisely analogous to Loving. To be fair, the purpose of miscegenation laws was maintaining a racist structure, whereas the limitation of civil marriage to opposite-sex couples is only highly heteronormative. If classifications based on sexual orientation are only subjected to rational basis review, heteronormativity may not be forbidden. But nonetheless, treating a woman as having different rights than a man would in the same circumstances is, indeed, discrimination on the basis of sex. And applying strict scrutiny, forbidding same-sex marriages fails, as Justice Greaney concluded. There may be a better analysis, based on fundamental rights of intimate association, but Justice Greaney's analysis is correct, and I'm not going to quibble too much about which correct analysis is applied. (That's doubly true because the circularity problems of the scope of a right of intimate association are real, even though Justice Cordy seriously underestimates the meaning of "intimacy" by interpreting it as only referring to sex.)

Separate but equal is still sex discrimination. There may be times when it passes strict scrutiny; there may be room for a state-run women's college, for example. But treating individuals differently based on their gender is sex discrimination, and unsurprisingly often is associated with invidious discrimination.

Justice Cordy's point about the legislative history is interesting, but I think that Justice Greaney still gets it right. When the people make a decision to prohibit the government from discriminating on the basis of sex, they intend to bind themselves to that principle, even if in some specific cases they would blink at the principle that they have embraced. The point is to place that principle above their ordinary preferences. It's true, as Eugene Volokh points out on volokh.com, that validates the slippery slope arguments that conservatives made in opposing the ERA, but that's okay. People took those arguments into account when they decided to enact the ERA. Whether the state would proceed further down that slope depends partially on public opinion, partially on the reasoned development of law, and partially on the deliberately political process by which judges and justices are appointed. (For what it's worth, three out of the four justices in the majority were appointed by Republicans- Massachusetts Republicans, but Republicans nonetheless.) Slippery slope is just a perjorative term for the process of analogic reasoning. There are analogies that shouldn't be drawn- slopes that shouldn't be gone down- but slippery slope arguments are legitimate. That doesn't mean they're always correct, but they are valid. That's why people make the same sorts of slippery slope arguments about things like the Supreme Court's federalism jurisprudence.

What's Next

So, the first big question is whether the Massachusetts legislature could adopt a civil union statute, similar to the response of the Vermont legislature to Baker. It's not clear that it could; Baker was a much less sweeping decision that clearly left that door open. Here, the Supreme Judicial Court expressly stated that civil marriage applies to same-sex couples, while still staying its decision.

The legislature could almost surely pass a law eliminating all marriages in Massachusetts, while presumably adopting a civil union law for all couples. But I don't think that the legislature is likely to do that. So the interesting question is whether the legislature could pass a civil union law that only applies to same-sex couples, with civil marriage still reserved for opposite-sex couples.

One of the concerns the court discussed is discrimination against non-marital children, even by actors besides the state. How would civil unions resolve that concern? Surely, there would still be people who considered "civil unions" to be second-class marriages- which is reminiscent of the court's language denouncing regimes that create second class citizens. Furthermore, if the plaintiffs have a right to avoid that discrimination, can the state close the door to their efforts to obtain the federal benefits of marriage? In its discussion of the benefits children derive from their parents' marriage, the court noted that marriage can facillitate "access to family-based State and Federal benefits." But that then raises the question of whether the Defense of Marriage Act changes the law.

So while there's some possible wiggle room, it looks very likely that the courts would invalidate a civil union, "separate but equal" regime. I think that analysis would be correct.

The other question is whether Massachusetts same-sex marriages would be recognized by other states or by the federal government. The first thing to note is that same-sex couples will not be able to come to Massachusetts just for a marriage. As Justice Greaney noted, Massachusetts law specifies that marriages contracted between residents of other jurisdictions who intend to continue living in that jurisdiction are invalid if the marriage would be illegal in the home jurisdiction. See A.M.L. G.L. 207, Section 11. But that only postpones the issue. Given the mobility of modern Americans, it won't be long before a same-sex married couple moves out of Massachusetts. That will present the issue of whether their marriage is entitled to recognition.

There's a big question there about whether the Defense of Marriage Act, or state versions, are valid. Those questions have to do with important issues of federalism, the Full Faith and Credit Clause of the Constitution, which requires states to recognize other state's judicial decisions, and whether DOMA is the sort of animus based law that is unconstitutional under decisions such as Romer v. Evans. I'm not sure yet on what conclusion I think is correct, because I haven't looked at the Full Faith and Credit Clause jurisprudence. I suspect that the Romer argument would hold together, at least as to the federal benefits, but assuming, for the sake of argument, that bans on same-sex marriage are constitutional in other states with less protective constitution, I don't think the Romer argument would go that far. That would make the portability question really come down to the Full Faith and Credit Clause.

There is a serious danger that this will trigger constitutional amendments. The political situation isn't as clear as the law, which is plenty murky. I don't think a constitutional amendment is likely in Massachusetts. The most recent polls indicate that a majority of Massachusetts voters support same-sex marriages (50 % to 44 % according to a Boston Globe poll in April). It could still go either way, but a Massachusetts constitutional amendment requires a majority vote of the state legislators in two consecutive terms, followed by a majority vote of the electorate. That means that the popular vote could take place no earlier than November 2006. Because the opponents of same-sex marriage skew old, and the supporters skew young, those three years are likely to move popular opinion further in support of same-sex marriages.

The Federal Marriage Amendment is a bigger worry. If DOMA is struck down, there will be a big fight over the Federal Marriage Amendment. It would be close and could be very ugly. When that fight takes place matters a huge amount. In ten or twenty years, it wouldn't be close. There's thus a real danger of this leading to a backlash that does more harm than good. (Eugene Volokh has a good discussion of this. This is also part of the arguments used by people like Nathan Newman (www.nathannewman.com), who is a liberal (and a co-worker of mine) who argues that judicial review as a whole is bad for the left, because of backlash when we win cases and conservative decisions when we lose). But at the same time, as a progressive who believes in my legal analysis, I'm not sure there's room to distort constitutional analysis for strategic purposes. If DOMA is unconstitutional, as it well may be, courts should strike it down when the cases come. And then we should fight like hell to stop an amendment.

Oh, about the title: in the 1800s, people referred to pairs of women who lived together in long-term, committed relationships as being in "Boston marriages." There's no good way of knowing how many Boston marriages were lesbian relationships, but some of them surely were. In any event, even Boston marriages that are not sexual relationships could receive legal recognition as civil marriages in Massachusetts once the stay expires.
Wednesday, November 12th, 2003
11:13 pm
Barnhart v. Thomas, No. 02-763, Unanimous opinion by Justice Scalia

The Commissioner of Social Security appealed a decision by the Third Circuit holding that an applicant for Social Security disability payments could qualify as disabled even though she could do her prior job, because that position no longer existed in substantial numbers in the national economy. The Supreme Court reversed.

Respondent Thomas was an elevator operator. When her job was eliminated, she applied for Social Security disability payments. She requested disability payments from Social Security. The Social Security Act allows disability insurance payments to an applicant "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Thomas argued that, although she remains able to do her previous job, she is entitled to disability payments because that job no longer exists in substantial quantities in the national economy and her disability prevents her from doing any job that does exist in substantial quantities.

The case is an issue of statutory interpretation. Under Chevron, courts defer to statutory interpretations of administrative agencies. However, the agency's interpretation is not given unlimited deference. Ultimately, the case comes down to whether the Social Security Administration's interpretation is sufficiently consistent with the statutory language.

The Court concluded that the SSA's interpretation was reasonable. The phrase "which exists in the national committee" most naturally modifies only the later provision. Furthermore, there are serious pragmatic difficulties in resolving disability claims: the number of cases that need to be resolved is huge and proving whether someone is actually disabled is difficult. To resolve that problem, the SSA follows a five step process. After determining that the applicant is not gainfully employed, does not have a disability on a list of impairments presumed to be severe enough to qualify, and does have a severe ailment, the SSA checks whether the applicant could perform their previous job. Only if the applicant can't do their previous job does the SSA look at whether there are other jobs that the SSA could do.

The Court's decision is pretty straight-forward. The language of the statute isn't very ambiguous, and as Justice Scalia points out, the SSA's interpretation does not produce absurd results. After all, if someone could do their old job, it seems reasonable to infer that there are other jobs they could do, even if that assumption could be wrong in some circumstances. The statute may not have been drafted equitably, but where the SSA has consistently interpreted it in the way that the language most naturally reads, the Chevron question makes it an easy case. It's not even clear that it is bad policy; after all, disability insurance is supposed to protect people who can't do their jobs. People who lose their job because it is no longer common in the economy don't really map onto the group that disability insurance is designed to protect. There are good reasons to think that they should be treated differently from people who are injured or suffer from a disease and lose their job as a result. Maybe the combination of the job loss and the inability to get a new job requires better treatment than people who lose their job but can relatively easily move on to a new job. But that's still mostly a matter of figuring out how to handle the transition costs in a shift in the economy, not the same issue as providing a safety net for people who suffer disabilities that prevent them from working any job.
Sunday, November 9th, 2003
10:11 pm
Mitchell v. Esparza, No. 02-1369, per curiam

Mitchell reversed a decision by the Sixth Circuit issuing a writ of habeas corpus in an Ohio capital case.

The respondent, Esparza, was convicted by the Ohio state courts of felony murder and sentenced to death for shooting a cashier during a store robbery in 1983. After appealing his conviction within the Ohio courts, he asked the federal district court for a writ of habeas corpus. The district court granted the writ and the Sixth Circuit affirmed, arguing that the jury needed to be separately charged on the issue of whether he was the "principal offender" in the murder.

Under Ohio state law, only the principal offender can generally be sentenced to death for a murder committed in the course of another felony. That rule protects accomplices in felony murder cases from facing the death penalty (unless there are other aggravating factors). No evidence was presented at trial indicating any other participants in the robbery or the murder, by either the prosecution or the defense. The jury was not required to reach a separate finding that Esparza was the principal offender in order to sentence him to death. During the habeas proceedings, Esparza's lawyers presented evidence that there was another participant in the robbery and murder.

The Sixth Circuit concluded that Apprendi required the state to obtain a separate judgment from the jury on the issue permitting capital punishment and that harmless error analysis was inappropriate because it was a capital case. Apprendi requires jury findings for factors that increase the maximum sentence that can be applied for an offense. However, ordinarily violations of Apprendi can be overlooked if the error was harmless, because the jury would clearly have reached that finding if the question was put to them.

The Supreme Court concluded that habeas relief was unavailable because the Ohio court's conclusion was not unreasonable. It expressly did not reach the question of whether the Sixth Circuit would have been correct if it were simply deciding the issue on direct review, but relied on the fact that the question before the Sixth Circuit was whether the state court's conclusions were objectively unreasonable.

The Supreme Court decided this case properly. Failures to require the jury to find all of the elements of a capital crime, even when the evidence is uncontroverted, are potentially troubling. After all, we require the jury to find each element beyond a reasonable doubt. But the state court's conclusion that this was harmless error where there were no indications at all (presented at trial) of other participants was hardly unreasonable. There may be an ineffective assistance claim, but that's a separate issue that was not before the Supreme Court.

The big question here, as with Yarborough, is why the Court took the case. As is often stated, the Court is a court of law, not of error. That means that it doesn't exist to fix wrong decisions below; it exists to settle important points of law. Yet in neither of these cases did the Court resolve an important legal issue. To be sure, the scope of Apprendi is an important issue. But because of the limitations of habeas review, the Court did not, in fact, reach the question of what that case requires, but only stated that the Ohio courts weren't unreasonable in their interpretation.

At the beginning of each of its recent terms, the Court overturns several habeas writs. The point may be to police the lower federal courts, to tell them that the statutes limiting when habeas corpus can be granted should be taken seriously. But why does that rise to the level of requiring Supreme Court review? A substantial body of cases dealing with important questions supports that proposition already. And it's not like the Court was resolving a circuit split or some other weighty reason. In some senses, these cases all involve a split between the state court and the federal circuit court that covers the same area, which the Court historically treats as a serious matter. But even so, the error correcting focus seems odd, particularly because the Court does not take a sufficient number of appeals from state courts to adequately police the fairly common circumstance where the state courts do not comply with the Supreme Court's interpretations of the Constitution.

The best defense is that the Supreme Court is concerned about the "riot state." The system of precedent and a discretionary court up top requires that lower courts comply with Supreme Court authority. As long as lower courts make a good faith effort to comply, the system works well. But if the lower courts decided to frequently disobey a decision of the Supreme Court, it would be hardpressed to correct the problem. Perhaps the Justices fear that if they don't police the line closely the lower courts will start granting writs of habeas corpus willy-nilly until the Supreme Court loses control. By policing a couple cases each year, the Court sends a signal to not get out of line.

But that explanation breaks down. Does anyone seriously believe that the Supreme Court couldn't bring the situation under control if the lower courts did start granting far too many habeas writs? Surely, if the Supreme Court issued a few major decisions, reiterating the rules, that would bring the state back to the current situation. So why look so actively for habeas cases to reverse?

One possible answer is that the current Supreme Court is excessively concerned about issues of comity with state courts. Even when state courts are wrong, the Supreme Court is hesitant to send the message that they need to conform to its decisions. So when a lower federal court sends that message, the Supreme Court is quick to send the message to the state court that it is taken seriously and treated with respect.

The other possible answer is that the current Court just likes to make sure that people stay in prison (or, as in this case, get executed). Even where constitutional rights may have been violated, the Court seems eager to ensure that the federal courts not look any closer than they are statutorily supposed to at the convictions. To be sure, the statute expressed Congress's will on the subject. But the decision to act as a court of error to preserve criminal convictions, instead of acting as a court of law to preserve coherent criminal law, is the Supreme Court's own decision.
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