Verdict Legal Analysis and Commentary from Justia Wed, 26 Nov 2014 17:33:21 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no Who Gets the Black Gold? Harold Hamm Ordered to Pay $1 Billion in Divorce Settlement Wed, 26 Nov 2014 05:01:46 +0000 Continue reading →]]> Oil RigsDivorces can often be ugly, acrimonious, and hard-fought. The divorce between Sue Ann and Harold Hamm was not special in that regard. She accused him of having an affair—his first marriage ended when he was accused of having an affair with Sue Ann—and filed for divorce. What made this divorce special is that the parties were fighting over billions. And with an 80-page court order ruling that Harold must pay Sue Ann one billion dollars, they have joined the ranks of the biggest divorce settlements in history. The number may be shocking, but, as I will explain in this column, the result is the product of standard principles governing the economic consequences of divorce.

The Hamm Marriage

Sue Ann and Harold married in 1988. She was a decade younger than he and rumored to be the paramour that broke up Harold’s previous marriage. Sue Ann and Harold had two children together, now adults. Already a rich and successful oil tycoon, Harold entered his second marriage without a prenuptial agreement, although such contracts are used in marriages such as this one: second or subsequent marriages where there is a great disparity in wealth or earning capacity between the parties.

Although Harold was a multimillionaire by 1988, when the marriage took place, his wealth grew substantially during the twenty-five years the marriage lasted. Both Hamms worked at Continental Resources, an oil company that was in the process of leasing huge swaths of land in North Dakota, Montana, and Canada. This land turned out to include something called the Bakken formation, a veritable pot of gold for an oil drilling company. As oil bubbled up at a rapid rate, Hamm’s millions became billions. His net worth by the time of the divorce trial was estimated at $18 billion; Forbes Magazine ranks him the 18th richest American. At the same time, however, his marriage to Sue Ann crumbled through her accusations of infidelity, her leaving and moving to another city, and eventually a mutual desire to split.

The Hamm Divorce

There was no dispute about the grounds for divorce in this case. Sue Ann filed on grounds of “mutual irreconcilable incompatibility”—Oklahoma’s version of a no-fault divorce—and Harold heartily agreed with her assessment. What they could not agree on is how much of Harold’s money should be given to Sue Ann upon divorce. Although there was plenty to go around, the parties could not agree on a settlement and thus took their case to trial.

The central issue in the divorce trial was whether Harold’s company was so successful because of his skill, expertise, or hard work—or whether, as his lawyers suggested, he just stumbled into pools of oil and haplessly became a billionaire. Now one might ordinarily expect a lawyer to defend his client’s honor—to argue zealously that his client is personally responsible for his company’s tremendous success. But the divorce context changes all that, forcing spouses with successful business to argue, instead, that their companies have succeeded in spite of them rather than because of them. A brief discussion of marital property law will explain why.

Property Division Upon Divorce

In the age of no-fault divorce, most of the expense and controversy of divorce involves fights over custody or money. For the Hamms, whose children were grown, money was at the heart of their lengthy battle.

At divorce, courts must deal with two basic financial questions: who gets what right now (property division) and whether either spouse should share in the other’s future earnings (alimony or spousal support). The rules used to answer these questions are a function of state law and flow first and foremost from the type of property system in place.

In community property states, spouses are generally entitled to keep separate property—assets they brought to the marriage or acquired during it through gift, inheritance, or other non-earned mechanisms—but must split community property equally. Community property is whatever the couple has earned through work. Community property principles are in place from the moment a marriage begins—and from the moment each dollar is earned. A paycheck of one spouse is owned in equal part by the other spouse, whether or not the non-earning spouse played any role in its acquisition. Couples are presumed to labor on behalf of the marriage and to share its spoils (or losses). Upon divorce, these principles drive the division of property.

Most states, including Oklahoma where the Hamms lived, are “separate property” states rather than community property states. In those states, marriage does not give rise to any automatic rights to the other’s property. While married, each spouse owns not only whatever he or she brought to the marriage, but also what he or she earns or otherwise acquires during the marriage. Many couples share money, of course, but the law does not impose any sharing principles on an intact married couple.

However, upon divorce, the separate-property system can mean that the parties, despite having made joint decisions about the allocation of time, labor and money, can end up in drastically different financial positions. A wage-earning spouse, for example, could potentially own almost everything the couple has; a stay-at-home parent could own virtually nothing. To avoid unjust results, separate-property states have adopted “equitable distribution” laws, which empower divorce courts to reallocate property between spouses. It can order that property owned by one be given to the other.

The equitable distribution system is different in every state, but the basic principles are similar. The court first categorizes property by its source and time of acquisition—the “separate property” category includes things owned prior to the marriage or acquired during the marriage without effort; the “marital property” category (like “community property”, in the states that use that system instead) includes property earned during the marriage by either spouse. In some states, only marital property can be divided; in others, both separate and marital property can be divided. Divisible property is then allocated to one spouse or the other based on equitable principles, typically captured in a list of factors.

A prenuptial agreement (or a postnuptial agreement, in some situations) can be used to opt out of these property-sharing principles, as well as those that create mandatory rights of inheritance upon the first spouse’s death. Harold Hamm, despite his millions, did not enter into either such agreement with Sue Ann. He did put most of his assets into a revocable trust primarily for his own benefit, but a trust like that does not shield assets from equitable distribution.

Sue Ann is exactly the type of wife for whom equitable distribution laws were enacted. Although the couple lived lavishly, with multiple homes and every luxury imaginable, the court found that she brought no assets to the marriage and acquired none in her own name during the marriage. If his assets were not redistributed to some extent, she would have left a twenty-five year marriage penniless, while he retained a net worth of several billion dollars.

Dividing Harold’s Oil Money

Oklahoma law allows the division of marital property only; separate property remains with its original owner. However, as the court describes in the ruling, there are several doctrines that push in favor of categorizing property as marital, rather than separate. For example, property that was acquired after the date of marriage is presumed to be marital, which puts the burden on the party claiming ownership to prove that it was acquired in a way that makes it separate. In addition, property that was acquired as separate property is presumed to be marital when it has been placed into joint ownership. Thus, if a husband inherits money, but uses it to buy a jointly titled family home, his wife would be presumed a joint owner of the house.

An additional principle—central to this ruling—is that when separate property is brought to the marriage, any increase in value during the marriage can be wholly or partly marital, depending on why the value increased. In a prior case, Thielenhaus v. Thielenhaus, the Oklahoma Supreme Court set forth this principle as follows:

Where, as here, a spouse brings separate property to the marriage, its increased or enhanced value, produced by investment managed by neither spouse or by appreciation, inflation, changing economic conditions, or circumstances beyond the parties’ control, cannot be treated as a divisible marital asset unless, of course, there be proof that the increase resulted from efforts, skills or funds of either spouse.

The question, then, in Hamm v. Hamm, was whether the increase in the value of Harold’s 122 million shares of Continental stock (the company he headed) was due to some passive factor, or due to his skill or effort. The stock’s increased value was set at almost $1.4 billion, making this a very high stakes question. This is the rule that put Harold’s lawyers in the odd position that his successful career was just the product of dumb luck. He just happened to lease land that happened to be filled with gushes of oil. The court did not buy it. Instead, it ruled that the enhanced value of the stock was marital property and should be apportioned in a just and equitable manner.

In its lengthy ruling, the court described every piece of property Harold owned and announced its new owner. The most valuable asset, by far, was the enhanced value of the Continental Resources stock. It was undisputed that he brought many shares of that stock to the marriage—and was entitled to retain their original value for himself. But because their enhanced was largely due to his skill and effort, Sue Ann was entitled to share in the increased value. All in all, the marital estate was worth a little over two billion dollars, and Sue Ann was entitled to half.


Sue Ann received about $25 million in property, including the marital home. That left her $975 million short of her equal share. Harold was thus ordered to give Sue Ann a down payment of $322 million by the end of December 2014. He will then pay off the rest in monthly installments of $7 million until the total payments total $1 billion.

A billion dollar divorce award might strike some as excessive. After all, couldn’t Sue Ann live on less? Of course she could, but that isn’t the operative principle. Most state laws on marital property are designed are a partnership principle, or the idea that spouses work together in the hopes of generating a marital estate, and they should share the riches when the partnership dissolves. As with partnerships generally, equal division is the default. However, although equal division is supposed to govern most equitable distributions, courts are often reluctant to apply it when there is so much money to go around. They explicitly or implicitly compromise on a number that is more than enough to continue a life of luxury, but not necessarily half. The Hamm Court should be applauded for applying the rule as it was intended. And there is one benefit for Harold—since Sue Ann was given $1 billion in marital property, she was deemed not in need of alimony.

Joanna L. Grossman, a Justia columnist, is the Sidney and Walter Siben Distinguished Professor of Family law at Hofstra University. She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
]]> 0
Lessons from Ferguson Wed, 26 Nov 2014 05:00:26 +0000 Continue reading →]]> Riot Police GearWhat lesson emerges from the grand jury’s decision not to indict Darren Wilson for shooting Michael Brown? The result has enraged tens of thousands of Americans, especially those who conceive the criminal law as a midwife to justice. I do not begrudge them their fury, but suggest that they misunderstand the criminal law, and expect it to assume a role it has not played in this country for at least two generations.

To put it plainly, the criminal law in the United States does not exist to deliver justice but to impose order. And for many years, people like Michael Brown have been seen as a threat to order—not because of who he is or what he may have done, but because of what he represents. Until that changes, the criminal law will view him with suspicion and bestow upon people like Darren Wilson a lawful power to treat him with deadly force.

Yet there is some indication that change may be upon us, if we have the will to seize it.

The Divisive Ideology of American Justice

We can imagine the criminal justice system from two very different perspectives. From one, the members of society are presumptively innocent and equal, free to go about their affairs unmolested by the State to the maximum extent possible. From the other, the citizenry is composed of “us” and “them,” and it is imperative that someone be empowered to protect the former from the latter.

If we lived in the first world, we would design a system that, as a rule, restrained the constable so as to liberate the people. We would be parsimonious with the State’s power to search, seize, prosecute, and punish. As importantly, we would condition the officer to view all people as genuinely equal, in fact and law, and admonish him to ignore incidental or irrelevant differences. Mistakes would inevitably happen, but we would tolerate them as the acceptable cost of our particular orientation.

But if we lived in the second world, we would design a system that unleashed the constable so as to empower him to protect some of us from the rest. We would be profligate with the State’s power to control perceived threats. As importantly, we would condition officers to view some people as suspicious in order to incapacitate wrongdoers before mayhem strikes, and encourage the police to devote extra resources to ensnare as many of “them” as possible. Mistakes would once again be inevitable, but we would tolerate them as the price we pay for order.

There was a time in this country when the Supreme Court leaned toward the first orientation. It only lasted a few years. Since at least the late 1960s, Democrats and Republicans in all three branches of the federal government and all fifty states have tacked sharply toward the opposite shore, steadily reshaping the law (and particularly the criminal law) to enlarge the government’s power to monitor, search, stop, arrest, prosecute, imprison, and execute those who fall outside the magic circle that separates us from them. It is this orientation that militarized the police, destroyed so many communities, disenfranchised so many citizens, and built so many prisons, filling them far beyond capacity with a disproportionate number of African American and Latino men (and women, to a lesser extent). The criminal law, in short, is part of the problem, not part of the solution.

Some people may resist this reading. They will point to those halcyon days of the Civil Rights movement, more imagined than real, when states invoked the criminal law to prosecute and punish southern killers in white hoods. But this is no answer. Leave aside the embarrassing infrequency of these prosecutions in American history. The more telling detail is that the criminal law typically played this role only after decades had passed, once time had worked its transformative magic.

Thus, with the fullness of time, people like Medgar Evers come to be seen not as dangerous agitators who threaten the natural order, but as heroic agents of overdue change. Invoking the criminal law to punish aging white supremacists like Bryon De La Beckwith can happen only once we have redefined the order that society hopes to preserve. It is past time we see that law is a meek follower, not a bold leader.

Others may protest my account on different grounds. They will insist that the criminal law is nobler in design, more majestic in purpose than I have described. Now we get to the nub of the matter. People want to believe in the law. For many in this country, the idea of the law is worshipped with the same unquestioned devotion that others reserve for religion. The “rule of law” is one of those magic and malleable symbols of national identity, impossible to pin down but nonetheless imagined as a source of unmitigated good. To lose faith in the law is somehow un-American. Worse, if we cannot cling to the security of the law, what is our fate? We may as well ask a man hurtled into the sea to let driftwood pass him by.

That’s how civic myths work. They not only convince us of their benevolence, they frighten us into believing we would be lost without them. Things should be this way; anything else would lead to chaos. And so we conflate this particular conception of the criminal law with the way things ought to be. It becomes an ideology, our unquestioned and reflexive bias. And one thing is certain: law cannot dislodge an embedded ideology. It never has, and never will.

Can Ideology Unite Rather Than Divide?

But ideologies can nonetheless change, and there is gathering evidence from the last decade or so that this one may be ripe for reconsideration. Since the start of the new century, nearly every state in the country has taken steps to improve its criminal justice system in a way that mitigates the excesses of the last two generations. Little by little, states are converting felonies to misdemeanors, and misdemeanors to non-criminal offenses. They’re repealing mandatory minimum sentences, rethinking habitual offender statutes, reducing or eliminating sentencing disparities between crack and powder cocaine, legalizing small amounts of marijuana, limiting the number of juveniles sent to adult court, and substituting treatment for prison. The prison populations in New York, California, and New Jersey, for instance, have declined by roughly 25 percent from their peaks of a few years back. For the first time in decades, unused prisons are being shuttered.

At the same time, some of the iconic symbols of the punitive era are gone. In 2009, New York dismantled most of the Rockefeller drug laws, the model for many of the retributive drug sentencing schemes adopted nationwide during the War on Drugs. In 2012, a California ballot initiative overturned that state’s infamous “three-strikes-you’re-out” law. Just a few weeks ago, at the midterm elections, California passed another ballot initiative that converted an entire class of non-violent drug and property offenses from felonies to misdemeanors. And in one of the most heartening developments, a number of states have taken steps to limit the use of solitary confinement, one of the most psychologically destructive penal practices ever devised.

Nor are these changes confined to blue states. Important legislative reforms have taken place across the country, including much ballyhooed legislation in Texas, South Carolina, Kentucky, Mississippi, and other southern states. In fact, the bipartisan character of these developments has given rise to an entirely new genre of journalism. In “man-bites-dog” style, these articles express amazement at the Right’s newfound interest in criminal justice reform, and marvel at the strange bedfellows this attachment has created. Just a few days ago, Tina Brown, formerly of Vanity Fair, authored a piece for The Daily Beast that opened by asking what these people and organizations have in common:

  1. Koch Brothers
  2. National Association of Criminal Defense Lawyers
  3. Sen. Cory Booker (D-NJ)
  4. Sen. Rand Paul (R-KY)
  5. George Soros
  6. Sen. Mike Lee (R-UT)
  7. Sen. Dick Durbin (D-IL)
  8. Newt Gingrich
  9. American Civil Liberties Union
  10. Grover Norquist

Answering her own question, she wrote, “They all agree that America’s practice of mass incarceration—unique in the world—is at worst a moral and practical failure or at best an outdated policy badly in need of adjustment.”

A number of factors help explain these changes, including much lower crime rates, the constraining effect of state budget crises, and a greater receptivity among policymakers to data-driven solutions. Yet most observers agree that these reforms, as important and as salutary as they are, cannot go far enough to produce meaningful reductions in the bloated American prison population. For one thing, the changes focus overwhelmingly on sentencing reform rather than on reform of police and prosecution practices. They concentrate on what happens to an offender once he enters the prison system, and not on the laws and enforcement strategies that brought him there in the first place.

Why have reforms been limited in this way? The answer is exceedingly important but has received almost no attention. Policymakers who profess an interest in criminal justice reform have thus far declined to re-examine the ideological foundation on which the current system was built. They have not questioned, in other words, the essential disposition to view the great majority of offenders as “them”—marauders who must be separated from “us” by any means necessary and for as long as possible. They show no awareness that the entire system was built on a foundation that unleashed the police and directed them to divide, rather than restrained the police and enjoined them to unite. Like any dominant ideology, this foundation operates unseen and unquestioned.

Now that reform is finally in the air, we must acknowledge that the American criminal justice system is flawed at its ideological core, a flaw that no amount of tinkering will fix. The shooting of Michael Brown, like the shooting of so many unarmed African-American men, was the predictable product of the same punitive turn in American life that produced the misguided War on Drugs, the dangerous militarization of local police, and the shame of mass incarceration. Until policymakers are willing to revisit the destructive and divisive ideology of “us” and “them,” and all that it implies, from police practice to sentencing to prison conditions, meaningful reform is impossible.

And the next grand jury will come to the same conclusion as this one.

Joseph Margulies is a Visiting Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.
]]> 0
The Supreme Court Considers Warger v. Shauers: How Insulated Are Jurors From Having to Testify About Deliberations? Tue, 25 Nov 2014 05:01:50 +0000 Continue reading →]]> Jury BoxIn October of this year, the U.S. Supreme Court heard argument in Warger v. Shauers, a case that centers on the scope of Federal Rule of Evidence 606(b). Rule 606(b) provides in relevant part that as a general matter, parties may not, during an inquiry into the validity of a verdict, introduce juror testimony about statements made during jury deliberations. The rule contains a few exceptions, but the petitioner in Warger argues that the rule itself does not apply to his facts. He contends that the juror testimony he wishes to utilize calls into question the composition of the jury rather than inquiring directly into the deliberations themselves. I will consider in this column whether the distinction is a tenable one and, if so, whether the Supreme Court is likely to embrace it in interpreting Rule 606(b).

The Facts of Warger

Warger involves a civil tort action in which the defendant prevailed at a jury trial. After the verdict came in, the plaintiff in the case, Gregory P. Warger, learned from a juror that another juror had revealed something troubling about herself during deliberations. The latter juror said that if her daughter had been sued for the accident for which she was responsible, it would have ruined the daughter’s life.

Were the petitioner/plaintiff complaining about the juror’s statement in and of itself—and the potential injustice brought about by its utterance during jury deliberations—then it seems clear to all concerned that the situation would be covered by Rule 606(b). The rule prohibits the use of jurors as witnesses in attempts to challenge the validity of a verdict, and such use would be precisely what was involved in arguing that a finding for the defendant ought to be reversed because of something that one juror said to the others during deliberations. Even inappropriate comments by a juror—which the comment in this case arguably was—cannot be paraded before a judge as a means of undoing the work of a jury.

The plaintiff here, however, says that he is making a very different claim. He contends that the juror’s statement about her daughter exposed a fact about the juror that, if honestly conveyed during voire dire, would have led to the juror’s disqualification before the trial even began. Rather than itself constituting misconduct in deliberations, in other words, the petitioner says that the juror’s statement about her daughter (as conveyed by a fellow juror) revealed the fact that she had lied about herself during voire dire when she claimed to be unbiased and willing to find for the plaintiff if he met his burden of proof. Had she been truthful, she would have disqualified herself and would never have been on the jury in the first place.

Utilizing a juror’s testimony to reveal that another juror should never have been seated, argues the plaintiff, is different from utilizing a juror’s testimony to condemn the deliberation process and thereby attack the verdict. In the latter case, a party is arguing that something about the jury’s process yielded an improper verdict, whereas in the former case, a party is saying that no matter what happened during deliberations, the process was inherently flawed because one or more of the jurors should never have been part of it. According to the plaintiff, this first kind of complaint is not really an attack on the verdict at all. And it would be as much of a reason to retry the case if nothing untoward had happened during deliberations and the truth about a juror had instead emerged through the testimony of a third party, as discussed in McDonagh v. Greenwood (in which the U.S. Supreme Court said that a juror’s material dishonesty at voire dire entitles a party to a new trial if an honest response would have provided a valid basis for challenging the juror for cause).

The Reason for Rule 606(b)

To determine whether Rule 606(b) ought to be construed to apply to the plaintiff/petitioner complaint in this case, it might be useful to consider why we have Rule 606(b) at all. One reason for the rule is to guard jurors from the sort of intensive interrogation by attorneys that might occur if the content of deliberations could become grounds for overturning a verdict. Since cases that go to trial virtually always yield at least one party that is unhappy with the result (and thus interested in revisiting the verdict), the protection afforded by Rule 606(b) would be available in most cases to block jurors from testifying about deliberations.

The need to protect jurors from inquisitive attorneys has several facets. First, and perhaps most importantly, people are already resistant to serving on juries and routinely concoct excuses to avoid having to serve. Most people have other obligations, including work and family, with which jury service inevitably conflicts. It may therefore be important to avoid further deterring people from jury service through extensive post-trial questioning by disappointed attorneys who hope to find a flaw in the process that might allow them to reopen the case.

Secondly, if jurors are aware during deliberations that their statements might be carefully examined by the parties after the verdict, then they might refrain from speaking openly and freely with one another. Knowing that one’s statements will be pored over can have a chilling effect on conversation, and that could be an undesirable state of affairs for jurors, whom we expect and hope will be throwing around ideas and fully reviewing the evidence to reach an informed decision about the right result. By leaving the jurors (and their deliberations) alone after trial, we help ensure that they will have a robust and open discussion of the evidence during the case, without fear of reprisal. It is for this reason as well that we do not keep a transcript of what the jurors say to one another during deliberations. The ephemeral nature of conversation can help to avoid self-censorship and incomplete discussion.

Finally, the jurors are performing an important civic function by serving on a jury and taking their jobs as jurors seriously. We do not want to subject them to what they might consider litigant harassment, because they do not deserve such treatment as a reward for their thankless task.

Rule 606(b), in short, serves, among other things, to “exclude” the jurors’ testimony about deliberations from evidence in any subsequent reconsideration of the verdict and thereby to make it unprofitable for litigants to behave in ways that could (1) deter jurors from serving at all, (2) chill serving jurors’ willingness to speak openly and fully during deliberations, and (3) effectively punish people for doing a job that few want and that must be done to keep our trial-by-jury system operating.

How Does the Lying Juror Fit Into the Reasons for Rule 606(b)?

Recall that according to Warger—the petitioner in this case—Rule 606(b) does not apply to his attempt to have a juror provide testimony about a fellow juror’s saying that her daughter’s life would have been destroyed had she been a defendant, offered as a means of challenging the composition of the jury (and thus the outcome of the trial). It does not, in other words, qualify as “an inquiry into the validity of a verdict.” Why not?

The petitioner says that one inquires into the validity of a verdict for purposes of Rule 606(b) if one contends that something improper happened during jury deliberations. According to the petitioner, then, he is inquiring into the composition of the jury and not into the validity of the verdict. It seems more plausible, however, on the text alone, to conclude that if one is claiming that there is something wrong with what led up to the verdict—whether because of what happened during the trial or because of the composition of the jury or because of improper conduct during deliberations—then one is, by definition, challenging the validity of the verdict. One is saying that the verdict is not a valid one and that it ought accordingly to be reversed.

Beyond the text, though, the petitioner argues that there is a big difference between saying, on the one hand, that the juror should not have been seated because she lied (a fact revealed by a disclosure during deliberations), and saying, on the other, that the juror said something during deliberations that tainted the process. What is that big difference?

The petitioner says that the first type of statement involves no necessary claim of prejudice. If the jury is improperly composed, then the verdict is invalid, regardless of whether it would have turned out differently had the jury been properly composed. The second type of statement, by contrast, would involve a claim of prejudice. An argument that something the juror said was wrong would not be enough to overturn the verdict unless the statement might have affected the outcome of the case.

One problem with this argument is that it is not clear why the applicability or inapplicability of harmless error analysis (in which the impact of an error is assessed) should have any bearing on the scope of Rule 606(b). It is true that harmless error analysis might in theory require a closer look at the jury’s deliberations, which could further frustrate the policy of protecting jurors. On the other hand, harmless error analysis generally does not involve a close examination (or any examination) of what jurors actually did but instead requires a court to ask a hypothetical question: Could this error have made a difference in the outcome, given everything else that can be gleaned from the trial transcript?

Answering that question would be consistent with leaving the jurors alone, once the particular improper statement emerged. Furthermore, to the extent that a particular error might lead to an automatic reversal, this fact would itself substantially increase the incentive for attorneys to attempt (through interrogating jurors) to uncover juror disclosures during deliberations that could cast doubt on the truthfulness of those jurors’ answers at voire dire. So the harmless error point could cut either way.

Conceptual Distinction That Resembles a First Amendment Principle

One argument that the petitioner could make for distinguishing between the different sorts of juror testimony at issue would rest on a distinction found in the First Amendment area. Under the First Amendment, a person may generally not be penalized for speech – for something that he or she says. For this reason, if a defendant goes on trial for the crime of saying something offensive, then he has a ready First Amendment defense to the charges.

Yet it is permissible for a prosecutor to introduce the defendant’s statements – statements that the First Amendment protects him in making – as evidence that the defendant committed a criminal act. It may turn out that the defendant’s offensive (but constitutionally protected) speech provides good evidence that the defendant committed a (legitimately so-classified) crime. For example, the statement, “I hate X because of her race and gender,” could help prove that the speaker had a motive to kill X.

Likewise, Rule 606(b) is meant to guard jurors against interrogation and harassment concerning the content of jury deliberations. Accordingly, it would be contrary to the purposes of Rule 606(b) to penalize jurors for their statements during deliberations by classifying those statements themselves as error leading to the overturning of a verdict. By contrast, if we used a juror admission during deliberations merely as evidence of some independent problem—here, a material lie that the juror made during voire dire—then the outcome may not be similarly detrimental to juror autonomy.

Indeed, in many cases, it would be possible to prove the juror’s earlier material lie without even having to ask a fellow juror to provide testimony, given that people familiar with the juror from everyday life might be better able to testify about her truth (e.g., that she hates plaintiffs) than fellow jurors would be.

Though this argument is plausible, I ultimately find myself unconvinced. I suspect that whenever a juror says something arguably inappropriate during deliberations, the losing attorney will be motivated to introduce the inappropriate statement in a challenge to the verdict and will characterize the statement not as objectionable in its own right (though it might be) but as evidence that the juror was materially dishonest during voire dire (e.g., because the statement during deliberations exposed the fact that she never intended to be “fair and unbiased,” as she claimed she would be). That is, as a practical matter, if Rule 606(b) were read to allow juror testimony about a fellow juror’s deliberation statements as evidence of juror dishonesty, then such testimony would be no less attractive to losing attorneys seeking to overturn a verdict than it would be if the goal were expressly to condemn the making of the statements during deliberations as error. And consequently, the policies of Rule 606(b) could be equally undermined.

Maybe Rule 606(b) Is Not So Great

Having said everything that I have up until this point, I should note that it is not clear to me that jurors need the protection that they currently receive under Rule 606(b). It would even perhaps be a good thing to have a full transcript of juror deliberations not only despite the potential chilling effect but because a transcript might chill the sorts of outrageous rule-violating behavior in which jurors engage while inside the black box that is the jury room. It might be a good thing to have some transparency about what takes place in the jury room and thus to have reviewing courts well-positioned to examine, in analyzing the impact of trial error, whether such error actually made a difference instead of asking, as courts currently must do, whether the error is likely to have made a difference. Having a transcript would in fact obviate the need for Rule 606(b), because attorneys could simply read the transcript rather than having to rely on a juror’s imperfect testimonial memory of what another juror might have said.

My less-than-enthusiastic view of jury opacity, however, is not the governing law. In federal courts, at least, jury deliberations are not recorded in any way, and Rule 606(b) expressly forbids juror testimony as a means of attacking a verdict reached by a jury. The U.S. Supreme Court, moreover, has made clear that it is very resistant to interpreting the prohibitions of Rule 606(b) narrowly, in a manner that might allow for juror testimony. It refused, after all, in Tanner v. United States, to permit juror testimony about several jurors in a criminal case consuming alcohol at lunch throughout the trial, causing them to sleep during the testimony presented in the afternoons. As a matter of simple prediction based on prior precedent (and based as well on the Justices’ comments during oral argument), I would put my money on the defendant/respondent winning this case.

Sherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
]]> 3
Lower Bar Pass Rates in Some States Should Cause Us to Examine This Year’s Test, and the Bar Exam in General Fri, 21 Nov 2014 05:01:04 +0000 Continue reading →]]> ExamOver the next few days, the California Bar announces the outcomes from the July 2014 exam. Results in most other states have already been released, and well over a dozen states saw passage rates drop by a significant margin (by five percent or more) compared to the July 2013 exam. One significant reason for the drop is a national decrease in scores that test takers received on the so-called Multistate Bar Exam (MBE), a 190-question multiple-choice exam that consumes one whole day of what is in most states a two-day bar exam ordeal. The Multistate exam thus counts for about half of the overall test for many test-takers (and some states use Multistate results to calibrate the grading of the one-day essay portion of the Bar—the other commonly used major component of the exam), so performance on the Multistate is undeniably important. (California is somewhat unusual in that it has a third full day in its bar exam—a so-called Performance component that simulates a real-world situation in which a lawyer might find herself and asks her to draft a relevant document, e.g., client letter, court brief, memo to a firm partner, etc.). So when Erica Moeser, president of the organization that creates the Multistate exam (the National Conference of Bar Examiners) wrote a letter to law school deans last month highlighting and trying to explain the national drop in MBE scores, she triggered some pointed replies, especially from Nicholas Allard, the Dean of Brooklyn Law School (whose overall bar pass rate in July 2014 apparently was almost ten percent lower than in July 2013). In the space below, I identify and examine some of the narrower and broader questions raised by this year’s drop in Multistate performance.

Ms. Moeser’s Letter to Law Deans and Dean Allard’s Response

Various reports indicate that the average number of credited answers on this year’s Multistate exam was 141.5, a drop from 144.3 in 2013. No one denies that this is a big drop; it appears to be the largest single-year drop since the Multistate exam has been given (going back a number of decades). And a mean score of 141.5 seems to be the lowest national MBE average in a decade. The question, of course, is: What accounts for this drop? Here is what Ms. Moeser wrote to law school deans:

[T]he drop in test scores that we saw this past July has been a matter of concern to us. . . .While we always take quality control of MBE scoring very seriously, we redoubled our efforts to satisfy ourselves that no error occurred in scoring the examination or in equating the test with its predecessors. The results are correct.

Beyond checking and rechecking our equating, we have looked at other indicators to challenge the results. All point to the fact that the group that sat in July 2014 was less able than the group that sat in July 2013. In July 2013 we marked the highest number of MBE test-takers. This year [2014] the number of MBE test-takers fell by five percent [which would be expected since] first-year law school enrollment fell 7% between Fall 2010 (the 2013 graduating class) and Fall 2011 (the 2014 class.) . . . .

In closing, I can assure you that had we discovered an error in MBE scoring, we would have acknowledged it and corrected it.

Brooklyn Law Dean Allard found this letter both “defensive” and also “offensive.” He criticized Ms. Moeser’s organization for not providing enough details about its internal test-validation processes and doubted whether the rest of the world can “have confidence in th[e] self-serving unaudited assertion” that the test was not flawed. For this reason, he said her “statements ring hollow,” and that she owed “a sincere apology to all the law graduates [she] disparaged and described as ‘less able’ without meaningful convincing evidence.” He added that, at least as far Brooklyn Law is concerned, the “credentials [of the class graduating in 2014] were every bit as good as our 2013 graduates, if not better.” Other commentators have pointed out that Brooklyn’s median LSAT score was the same for both graduating classes.

Understanding This Year’s Results

There is no doubt that the term Ms. Moeser used—“less able”—is loaded, and perhaps explains some of the passion of Dean Allard’s response. What I assume Ms. Moeser meant to say is simply that the 2014 group did not perform as well on this test as the 2013 group. Whether they are “less able” in some broader sense is a question entirely separate from how they scored on this particular test, and one Ms. Moeser would not seem to be in a good position to answer.

For that reason, Ms. Moeser probably erred (putting aside her choice of language) in trying to offer any explanation for the lower performance; her diagnosis of a “less able” group of takers seems to be, at most, a (limited) diagnosis of (partial) exclusion. In other words, what she knows—or should be able to know—is confined to the fact that the MBE test that was given in 2014 was reliable as compared to prior year tests. Even if this year’s test was no different in substance or administration, Ms. Moeser really has no way of accounting for the lower performance. Certainly her vague implication—that a decrease in the volume of law school applications and graduating students explained the lower score—is open to question. Indeed, a seven-percent reduction in the number of starting law students in the fall of 2011 might suggest that law schools shrank in size rather than lowered their admissions standards. And the comparison of seven-percent fewer incoming students and five-percent fewer MBE takers wouldn’t, without more data, say much. So Ms. Moeser should have said no more than that the test has been examined and validated, and that we need to look elsewhere for an explanation.

In this regard, Dean Allard is correct that the rest of us deserve to know more details about MBE’s “quality control” processes, to use Ms. Moeser’s term. It’s hard to see why more transparency about the internal test-validating data and techniques that the MBE-makers use would not be a good thing.

And what about the real explanation for the drop in performance this year? Dean Allard said his 2014 takers were just as strong academically as the previous class (and he also added that the school devoted at least as many if not more resources to support bar-takers this year.) Brooklyn is of course, only one law school, and significant yearly fluctuations by a single school in its bar pass rates are not uncommon. Moreover, median LSAT scores (of the kind people have noted about Brooklyn) don’t tell us much; much more relevant might be what the spread of LSAT performance is across a law school’s entire entering class, especially the tail end of LSAT-performers at the school. A number of other analysts over the past week have tried to analyze aggregate national LSAT data (broken down into small LSAT performance segments) of the Class of 2014 to see whether there is any overall difference between the LSAT scores of that class versus the Class of 2103 that would explain a significant drop in MBE scores. And these commentators seemed to have found none.

Even assuming these commentators have all the aggregate LSAT data they need and that their math is right, the LSAT score is, of course, just one measure of the academic strength of a group of law school students. Almost every law school looks (at the admissions stage) not just at LSAT scores, but also at college and graduate school grades, as well as a host of non-numerical indicia, such as letters of recommendation, personal statements, and the like. Perhaps law schools tried to keep their LSATs from dropping in the fall of 2011 (in part because median LSAT scores factor most heavily in the USNews ranking admissions category) and as a result enrolled a national class with lower GPAs? Or perhaps GPAs were unchanged, but the non-numerical indicia of the class entering in 2011 were less strong, as some of the best students steered away from law school and pursued other options? Or perhaps college GPAs have stayed constant only because of undergraduate grade inflation? Or perhaps law school professors are doing a poorer job of imparting knowledge that the bar exam tests? (The last two explanations wouldn’t seem to account for a large single-year drop in bar exam performance insofar as they, if they are valid explanations at all, reflect trends rather than sudden changes; the national admissions pools have varied more dramatically each of the last number of years.)

My point here is that we can’t possibly know what accounted for the drop until we have a lot more data. Some analysts have speculated that exam-taking software glitches in the essay portion of some state bar exams that occurred the day before the MBE was given might have stressed out test-takers in those states in a way that caused them to underperform on the MBE itself. Perhaps, but again, we need data from all the states in order to compare MBE performance where software glitches occurred to performance where there were no glitches. (The preliminary data seems mixed.)

Using This Episode to Explore Bigger Questions

Apart from the need for greater transparency about the internal reliability processes of the National Conference of Bar Examiners, what is the big takeaway? For that, let me quote another passionate segment of Dean Allard’s letter:

There is a serious disconnect between education and the bar exam if qualified students who have invested enormous sums of money and dedicated their time and energy to successfully completing their 85-odd credits in compliance with ABA and state requirements, results in more than a small number not passing the exam. It is strange that after completing, at great expense, such intense studies, the first thing law graduates must do is pay a lot of money, once again, [for a commercial Bar-exam-prep course] to prepare for a test that will enable them to practice law. This defies common sense.

There is much to Dean Allard’s observations here. There was a time when law school graduates incurred relatively low debt and could get decent jobs even if they failed the bar. And many employers that need licensed lawyers used to be more generous in giving folks a second or third chance to pass. But given the high debt loads and the mixed (if improving) legal employment picture we see today, failing the bar is a much bigger setback than it used to be. We therefore need to ask some basic questions, such as whether a bar exam is a good or necessary way to regulate entry into the profession. (At least one state, Wisconsin, does not require passage of a bar exam for those people who have graduated from an ABA-approved law school in the state.) Even if some kind of licensing exam is necessary or proper, is the bar exam that we give nationally each year the right kind of exam? I must confess that most of us who teach in and help administer the nation’s law schools don’t spend as much time and energy on thinking about the bar exam and ways to reform it as perhaps we should. (I remember being asked to grade essay portions of the California Bar exam a few decades ago—which I wanted to do to see exactly how the grading criteria were formulated and implemented—but then being told that because I had recently started a full-time law-teaching position at the University of California, I was not eligible to be a grader—a rule that did not seem sensible to me.) But Dean Allard’s implication is undeniably powerful; just as many of us in legal education have been moved over the last decade to think a great deal more deeply about how best to educate lawyers (e.g., interdisciplinary courses, more skill-based and practical offerings), we in the legal academy need to focus more on how best to license them. So beyond asking whether current MBE tests are comparable to past MBE tests, we in the academy, bench and bar should not defer to professional test-makers as much as we have in the past, but should be looking into precisely what the MBE and other bar exam components ask students to do, how exams are graded, and whether these screening tests are a good basis for deciding who should be permitted to practice law.

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
]]> 3
Disdainful Economists, Hubristic Jurists, and Fanatical Republicans: A Recipe for Single-Payer Health Care? Thu, 20 Nov 2014 05:01:45 +0000 NFIB v. Sebelius, a careless statement by economist Jonathan Gruber, and the upcoming challenge of it before the Supreme Court, King v. Burwell. Continue reading →]]> American Health CareThe two most recent attempts to reform the American health care system, in the early 1990s and early in this decade, were notable for what the would-be reformers refused even to consider: single-payer health care. Although nearly every major nation in the world uses a version of the single-payer system—and, as I will discuss below, even though the U.S. itself has had great success with a partial single-payer plan—both the Clinton and Obama Administrations ruled out universal single-payer reform even as one of the possible options.

Self-styled realists claimed in both instances that the political obstacles blocking adoption of a single-payer plan were insurmountable—so why even try? Defenders of President Obama’s approach noted that his advisors were worried that proposing anything like single-payer would brand the Administration as being too extreme, and that this would lead to huge losses in Congress for the Administration, and perhaps even the loss of Democratic majorities in both the House and Senate. We all know how that worked out for the Democrats, as former Speaker of the House Nancy Pelosi and soon-to-be Minority Leader Harry Reid sit dazed in their smaller offices.

Even that explanation, however, assumes that the Clinton and Obama Administrations were reluctantly trimming their sails, settling for less than they truly wanted. That could be true, I suppose, but there is an even stronger case—based on the totality of the economic policies that both presidents have enthusiastically embraced—that neither president was ever all that interested in seriously challenging the status quo.

The Affordable Care Act (ACA) is actually working rather well, given that it is by design a wasteful system that continues to pump profits into the bank accounts of unnecessary intermediaries. On the substance of what is included in the ACA—no more denials of coverage for preexisting medical conditions, more choices for many consumers, affordable coverage even for people who move between jobs, and millions of previously uninsured people now receiving coverage—Americans genuinely like the law. Even rising Senate Majority Leader Mitch McConnell, in what by the end was a very easy reelection campaign, refused to admit that he would take away the Kentucky version of the ACA, even as he promised to try to repeal the whole law nationwide.

No matter whether it is a marriage of convenience or a matter of deeper ideological commitments, the Obama Administration now finds itself in the position of having the health insurance industry as its greatest (only?) ally. Indeed, it seems that the rest of the political world is aligned to bring an end to “Obamacare.” An economist who advised the Administration has become the unintentional star of videos in which he disparaged voters’ intelligence. The Supreme Court is poised potentially to drive a stake into the heart of the ACA. And the rabid anti-Obama activists in the Republican Party continue to push for the ACA’s repeal.

The interesting question is what comes next, if the ACA fails or is killed. Republicans have never provided a meaningful alternative, and they dare not repeal the more popular parts of the law (including, in addition to the features noted above, the inclusion of children through age 26 on their parents’ policies). Moreover, the more Republicans attack the government for its supposed incompetence in running the ACA, the more we could reach the paradoxical moment where the public rallies behind the ultimate government solution that is single-payer health care.

How to Understand the Now-Infamous Remarks of One Unfortunate Economist: Both Liberal and Conservative Economists Think They Are Smarter Than Everyone Else

Much of the anti-ACA political landscape is by now utterly familiar. We have seen years of posturing by Republicans at all levels of government, dozens of pointless votes in the U.S. House of Representatives to repeal the law, and a razor-thin loss for repeal advocates in the Supreme Court in 2012. All of this makes the ACA a sore spot, and a focus of rage, for the Republican base. Even so, little new has come along to change the political landscape, until this week.

Now, the MIT economist Jonathan Gruber is at the center of a controversy over arrogant and disdainful remarks that he made at some policy/academic forums over the last few years. In particular, Gruber referred blithely to the “stupidity of the American voter” in explaining why he thought the law was written in less-than-clear ways.

Even a political opposition that was not as extreme as today’s Republican party would understandably respond to such comments with glee. Professor Gruber sounds, after all, more than “a bit dickish,” as Jon Stewart put it on his late-night show recently. If the Obama people relied on Gruber, as they clearly did, in setting up the law, then the President’s opponents would be crazy not to make political hay.

The problem is that people are misunderstanding what was at work in Professor Gruber’s comments. Republicans and their allies want to paint this as a case of “liberal condescension,” where the supposedly smug do-gooders in the Obama Administration are caught showing that they have no respect for “real Americans.” But that is most definitely not what was happening.

I am an economist, and I have spent large amounts of time with other economists. The one unimpeachable fact about economists of all political stripes is that they think that non-economists are stupid. (Indeed, one of the reasons that I now teach in a law school is that I found this mindset among economists to be so unfortunate—and unwarranted.) Economists are trained to think that only they can see through the silly nonsense of politicians, lawyers, pundits, and regular people—people who are too dense to understand that wage increases are not necessarily “real” (because they might be offset by inflation), or who fail to notice that a subsidy is the same thing as a tax reduction, or any of a number of other “simple” issues that economists deal with all the time.

Importantly, this disdain for the public is nonpartisan and not at all ideological. In fact, the Economics Department at the University of Chicago, which is famously conservative in its approach to economics, takes pride in its supposed ability to set the world straight and correct people’s dimwitted misunderstandings. One Chicago-School economist once referred to his colleagues’ approach as an “acid bath,” bringing the harsh reality of brutal logic to bear against the confused and sentimental ramblings of the great unwashed masses.

Professor Gruber, therefore, was simply caught saying to his colleagues what economists say to each other all the time: If everyone in the world were as smart as we are, we wouldn’t have to deal with their nonsense; but because they are easily confused, we can use our superior intelligence to take advantage of their shortcomings and dupe them into doing the smart thing. I have heard virtually the same words coming out of the mouths of conservative economists and liberal economists alike, many times.

Even so, and even though nothing that Professor Gruber said actually bears on the substantive content of the ACA, the new narrative is that the Obama Administration was somehow uniquely Machiavellian in its manipulation of the American people. That is not true, but there are plenty of false accusations against this president that Republicans have refused to abandon.

The net result of this new mess, therefore, is that the Republicans will be able to repeat relentlessly the claim that the ACA is a nefarious trick that was foisted on an unsuspecting public. The general suspicion that “we can’t trust Washington” will have inadvertently been enhanced by one economist being recorded saying what all of his colleagues believe.

The Supreme Court and the New Challenge to the ACA

As Professor Michael Dorf explained in his Verdict column yesterday, the Supreme Court has agreed to hear a new challenge to the ACA, King v. Burwell. There, the Court could decide that the subsidies for low-income Americans that allow them to buy insurance under the new health law must be limited to the dozen or so states that have set up their own insurance exchanges. That would leave the citizens of the majority of states without subsidies, because they are currently buying their insurance through exchanges established on the states’ behalf by the federal government.

The merits of that challenge are not the issue in this column, but I have to say that I find the central claim in King to be extraordinarily weak. Even so, a motivated group of conservative justices could decide to engage in naked partisan politics in that case, which would (among other things) allow Chief Justice Roberts to rehabilitate himself in conservatives’ eyes, after his vote to uphold the ACA in the 2012 NFIB v. Sebelius case.

If the Court strikes down the subsidies in the affected states, what would happen next? The so-called “death spiral,” in which the insurance pools in those states would include fewer healthy people, causing rates to rise and push out even more healthy people, is better thought of as a near-death experience. The exchanges would not be “really most sincerely dead” (in the immortal words of the munchkin coroner in The Wizard of Oz), because there would still be a core group of relatively ill people who are just barely able to buy the now-much-more-expensive insurance, and for whom even expensive insurance is better than nothing.

As the New York Times columnist Josh Barro has written, this unfortunate limbo perfectly describes the pre-ACA world in which New York State’s residents lived for years. It was a bad state of affairs, and no one liked it, but it limped along until the ACA radically improved the situation.

The point here, however, is that conservatives’ preferred result in the King case would lead to a new reality in which two-thirds of the country is stuck with especially dysfunctional private insurance markets. The public might well look back fondly on the days when health insurance was briefly affordable under the ACA.

Of course, even now Republicans are doing everything possible to convince the world that the ACA is impossibly broken. Last week, the Obama Administration announced that health insurance premiums would rise in 2015, in some cases by as much as 20%. Although unfortunate, this outcome (if, indeed, it turns out to be true) was quite common before the ACA came into effect. The reason that there was political support for reform in 2009 and 2010, after all, is that the old health care system was broken, and people knew it.

At this point, the Republicans cannot resist any opportunity to attack the ACA. A news article describing the new cost estimates included an Administration official claiming, correctly, that “the Affordable Care Act is working.” The next sentence in the article, however, says that “Republicans quickly pounced on the data as evidence of the opposite.” Their message: Get rid of the ACA, because we cannot trust a new bureaucracy to get things right.

Single-Payer Could Become a Very Real Possibility After All

If Republicans convince the public that the ACA is broken, then there will be a need for an alternative. As I noted above, however, they have offered nothing to replace the ACA. At best, they will return us to the status quo ante, but more likely, they will end up with a system in which the private health care markets are even worse than they were before. Moreover, state-by-state differences will become more pronounced, and businesses will find that their support of Republicans has made conducting business nationwide much more expensive.

If Americans are convinced that the government cannot run the ACA, would they ever believe that the government can do anything right? Strangely, the answer is yes. Once the Republicans and their allies on the Supreme Court—with an inadvertent assist from Professor Gruber—have convinced the public that the government cannot be trusted, while dooming Americans to an even worse private health care market, people will be looking for an alternative that is simple, clear, and tested.

We have such a system, and it is called Medicare. Even the older voters who skew toward the Tea Party love Medicare. (Famously, some of them apparently do not even realize that Medicare is a government-run program.) It is a single-payer system, and it has been working here in the United States for half a century. It is true that the way we formally finance the Medicare program is currently out of balance, but that is entirely fixable. Moreover, because the program has such low administrative costs, its total cost would be much lower than the private insurance system that it would replace.

I am not going to bet the house that the U.S. will adopt “Medicare For All” any time soon. I am certain, however, that the current road down which the Republicans and the Supreme Court are driving the country does not necessarily lead to their version of a utopia. Health care will always require a large amount of government involvement, as even the pre-ACA system showed. At some point, Americans might decide that enough is enough, and every citizen will finally be able to enjoy a tried-and-true program that works.

Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
]]> 0
Which Justices Are in Play in the New Obamacare Case? Wed, 19 Nov 2014 05:01:09 +0000 King v. Burwell. Continue reading →]]> Gavel, Stethoscope & DollarsThe Patient Protection and Affordable Care Act (ACA or Obamacare) has already survived over fifty votes for its repeal in the House of Representatives, and even after Republicans gain control of the Senate in January, the President’s veto power ensures that it will continue to survive repeal efforts so long as a Democrat occupies the Oval Office. Yet the ACA remains in danger. Its survival may hinge on just one vote—that of United States Chief Justice John Roberts. The Supreme Court’s recent decision to review the ruling of the U.S. Court of Appeals for the Fourth Circuit in King v. Burwell once again places the ACA in the high Court’s crosshairs.

In 2012, the ACA narrowly survived a constitutional challenge when Chief Justice Roberts joined the Court’s four Democratic appointees to rule that the ACA was a valid exercise of the congressional power to tax. King is a statutory case rather than a constitutional one, and accordingly, commentary on King has mostly focused on the statutory issue it presents. Yet, as I shall explain below, the four conservative Justices who voted to invalidate Obamacare in 2012 could reject the statutory challenge in King but nonetheless vote to invalidate the Act. If they do so, then it would only take one vote for the statutory challenge to doom the ACA in most states.

The Issue in King

The question in King is whether a provision of the ACA that authorizes federal health insurance subsidies for policies purchased on exchanges “established by the State” can also be read to authorize such subsidies when a state fails to establish a health insurance exchange, so that people in the state must purchase their insurance on a federally operated exchange.

If the Court answers “no”, that could spell doom for Obamacare, at least in the majority of states that have not established their own exchanges. Without subsidies, many people otherwise eligible to purchase health insurance on the exchanges will be unable to do so, and without their participation, the insurance pools will contain too few healthy insureds to be viable. Obamacare would go into what has been called a “death spiral.”

Fortunately, there are very good reasons for concluding that subsidies are available on federal exchanges. One can only reach a contrary conclusion by ignoring numerous other provisions of the ACA and the statute’s overriding purposes.

To be sure, some observers view the King case as presenting a conflict between two approaches to statutory construction. Purposivists like Justice Stephen Breyer believe that a statute should be construed to achieve its underlying purposes. By contrast, textualists like Justice Antonin Scalia argue that statutes serve multiple, sometimes conflicting purposes, and that therefore judges should stick closely to the text.

Yet, as I explained in a column in July when King and another case presenting the same issue were decided in the appeals courts, the conflict is illusory here. In both his academic writings and his work on the Court, Justice Scalia himself has long maintainted that textualists should not construe snippets of statutory text in isolation; context matters. Only by applying an extreme version of textualism could the Court conclude that the ACA as a whole forbids subsidies on federally operated exchanges.

Does that mean that the Court will unanimously reject the challenge to the federal subsidies? Hardly.

Supreme Court Justices are subject to the same sorts of cognitive distortions as other human beings. Thus, conservative Justices who are inclined to think that Obamacare is bad policy may also be inclined to find persuasive the argument offered by the challengers to the subsidies. They contend that Congress chose to make subsidies unavailable on federally-run exchanges as a means of inducing states to establish their own exchanges.

There is no persuasive evidence for that claim, either in the ACA itself or its legislative history. Nonetheless, a Justice who is predisposed against the ACA might be persuaded by unpersuasive evidence. Experienced Court watchers can call to mind numerous examples of Justices being persuaded by bad arguments that fit their ideological druthers—whether conservative or liberal.

Could Four Justices Renew Their Constitutional Objection?

Let us suppose, however, that at least one of the conservative Justices rejects the very radical version of textualism that would be needed to invalidate subsidies on the federally run ACA exchanges. Would the law survive?

Not necessarily. A Justice might conclude that the law is best read to permit subsidies on federally run exchanges but nonetheless adhere to his prior position that the ACA’s so-called “individual mandate” to purchase health insurance is beyond the power of Congress. Because the four Justices who voted to invalidate the individual mandate in 2012 also thought that the entire law had to fall with the mandate, adherence to that position would also invalidate the subsidies.

If those four Justices—Scalia, Kennedy, Thomas, and Alito—stick to their constitutional guns, then the challengers to the subsidies would only need to persuade one of the remaining five Justices of their position in order to prevail. The most likely candidate for defection would be Chief Justice Roberts, not only because he is generally conservative but also because he has sometimes exhibited what we might call “textualist tendencies.”

When Do Justices Accept the Judgment of Their Colleagues?

The likelihood that the ACA will survive thus depends in part on whether the 2012 dissenters adhere to their prior constitutional position, or instead, accept the contrary judgment of their colleagues that the law falls within the power of Congress.

The question whether a Justice who dissented in one case should adhere to her dissent when the issue arises in a later case has no clear answer. Justices sometimes accept the contrary judgment of a majority of their colleagues—especially if the parties have not expressly asked for the Court to revisit the earlier case. And the certiorari petition in the King case did not ask the Court to overrule its 2012 judgment upholding the ACA.

Nonetheless, Justices also sometimes refuse to accept the earlier precedent. The most famous example in American constitutional law was established by the late Justices William Brennan and Thurgood Marshall. They believed that the death penalty was unconstitutional in all circumstances. Despite numerous precedents rejecting their position, Justices Brennan and Marshall repeatedly and consistently voted to invalidate every death penalty to come before the Court, regardless of whether the party challenging his death penalty specifically asked the Court to revisit the precedents upholding capital punishment.

One might understand the Brennan/Marshall approach as extraordinary: Even if there are ordinarily good reasons to sublimate one’s own views to those of the majority, those reasons are outweighed by the life-and-death stakes in a capital case.

Yet Justices have followed the practice of non-adherence in a wide variety of cases. For example, some conservative Justices have refused to apply liberal precedents rejecting states’ rights and finding abortion rights; and some liberal Justices have refused to apply conservative precedents favoring states’ rights and rejecting free exercise rights of religious minorities.

Is there a principle that explains when a Justice should adhere to his prior views and when he should accept the contrary judgment of his colleagues? Perhaps. The adherence question faced by individual Justices is roughly equivalent to the question for the Court as a whole of whether a precedent should be overruled. And the Court has offered criteria for when a precedent should be overruled.

It is not sufficient that the Court would reach a different result if faced with the issue for the first time. To overrule a precedent requires some special reason. As the cases often put the test, the original decision must be not merely wrong but unsound in principle and unworkable in practice.

That is a high bar for overruling, and one which is not met by the arguments for overruling the 2012 ACA case. Even if one thinks—as the four dissenters may well think—that the ruling sustaining Congress’s power was unsound in principle, there is little reason to think it is unworkable in practice. Despite a rough rollout and continued political opposition, the ACA itself is working well enough. Meanwhile, the rule established by the 2012 case—that Congress cannot impose mandates under the Commerce Clause but can provide incentives under the Taxing power—is certainly not unworkable. Indeed, even the dissenters in the 2012 case appeared to think that Congress could have used the taxing power had it simply phrased the law differently.

Accordingly, the four dissenters from the 2012 ruling shouldn’t adhere to their prior votes. But that does not mean that they won’t adhere to their prior votes. Political scientists studying the statistical pattern of votes in the Supreme Court have found that Justices rarely give any weight at all to precedent as such. In other words, if faced with the opportunity to overrule a precedent, most Justices usually vote exactly as they would if facing the issue as an original matter. Stare decisis—the supposed rule that courts should adhere to their past decisions absent extraordinary reasons for disavowing them—is a rule that is at best honored in the breach.

If the dissenting Justices from the 2012 case follow the rules as written, they will put aside their constitutional objections to the ACA and focus only on the statutory argument in King. But if they follow the usual unwritten practice, they could well reject the statutory objections and nonetheless vote to invalidate the ACA. Should that happen, then the domestic policy legacy of President Obama will once again rest in the hands of Chief Justice Roberts.

Michael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at
]]> 5 0:10:05 Cornell University law professor Michael Dorf discusses some of the issues that will likely arise when the U.S. Supreme Court considers the statutory challenge to the Patient Protection and Affordable Care Act, or Obamacare, in the upcoming case Kin[...] Cornell University law professor Michael Dorf discusses some of the issues that will likely arise when the U.S. Supreme Court considers the statutory challenge to the Patient Protection and Affordable Care Act, or Obamacare, in the upcoming case King v. Burwell. no no
The Problem of Inflating Billable Hours Mon, 17 Nov 2014 05:01:55 +0000 Continue reading →]]> Billable HoursThere is the old joke about a lawyer who dies and goes to the Pearly Gates. St. Peter says to him, “you only look about 45 years old.” “Yes,” says the lawyer, “I just turned 45.” “But our records say that you are 94 years old.” “Oh,” responded the lawyer, “you must have been looking at my billing records.” Another joke tells of the client who questioned the lawyer about part of his bill. “What is this $100 charge for?” asked the client. The lawyer replied, “That’s when I was walking downtown. I saw you on the other side of the street, crossed over to say hello, and found out that it wasn’t you.”

News reports over the years have detailed astonishing stories of lawyers overbilling their clients. Consider the case of a very reputable lawyer from a very reputable law firm, Winston & Strawn. He was padding his expense account since shortly after becoming managing partner. When the law firm investigated, it discovered that his padding did not stop there. It then promptly demanded and received the partner’s resignation. It was not easy for the law firm to uncover the problem because the partner in charge of monitoring the law firm’s internal accounting was the lawyer, who was earning (until his resignation) over $500,000 per year. The wolf guarded the chicken coop.

His wife was a lawyer at Chapman & Cutler, and she had her own problems. Among other things, her firm discovered that she had billed many hours when she was on vacation with her boyfriend and not working at all. The court sentenced her to a year and a day in prison.

Michael Romansky, a senior partner of a major, national law firm, reviewed a bill prepared for a client, and decided to add three hours to the 2.5 hours that the associate had billed. The firm, like many major law firms, typically bill by the hour. The firm had told the client it would bill based on the number of hours that lawyers worked on the matter, this lawyer added hours that no one worked. By mistake, the firm sent the time records to the client, which led to the discovery. Further investigation led to other problems involving other clients. The court ended up suspending Mr. Romansky for thirty days, although the Bar Counsel recommended a six-month suspension. In re Romansky, 938 A.2d 733, 743 (D.C. Cir. 2007). The Disciplinary Board agreed with the Hearing Committee that Mr. Romansky “deliberately increased the hours billed in order to charge a premium that he was not entitled to,” but the court (over one dissent) concluded that his actions amounted to negligent conduct, not reckless conduct.

It typically takes a lawyer at least 10 hours of time to work eight billable hours. For example, the lawyer cannot charge for time spent on law firm administrative matters. The partner cannot bill a client for the time he discusses with his partners what should be the bonus for each of several associates. This partner will also spend time on continuing legal education, a bar meeting, or client development. That is not billable either. While the lawyer is eating lunch, taking a coffee break, looking at the newspaper, chatting with a colleague about last night’s baseball game, or using the restroom, that is not work that one would expect that he can bill to any client.

One partner in a major Chicago law firm claimed that he billed, on average, 5,941 billable hours per year for four years in a row. There are only 8760 hours in an entire year. To bill 5,941 hours per year, you must bill over 16 hours per day, every day, for 365 days. That lawyer is claiming to work more than sixteen hours every weekday, and every Sunday, and every Saturday. That means he must be in the office working on client matters on Christmas Day, Independence Day, New Year’s Eve, and New Year’s Day. If he takes even one day off, he has to bill over sixteen hours on some other days, but on each of those other days he was already working over sixteen hours. On average, he has to spend less than eight hours a day to sleep. Then, there must be some time spent commuting to and from work.

When a lawyer claims to work that many hours, on the one hand, one would think that his partners would conclude that something must be amiss. On the other hand, one might guess that his colleagues did not mind the increased income that the law firm earned. One wonders if lawyers who overbill are moving up in the firm pecking order at an above-average rate. The more senior lawyers may close their eyes to what they do not want to see. Junior associates may conclude that they should exaggerate their hours if they also wish to climb the partnership ladder. Of course, this house of cards falls down if the client later discovers billing fraud.

Often clients do not discover the problem. If a lawyer says that she spent two hours reading a case and she spent only one, it is almost impossible to catch that, unless she brags about it to her colleagues or on her Facebook page. Other lawyers may not overbill, but engage in unnecessary work, known as churning the bill. In an email to other lawyers at the firm, one lawyer wrote, “Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode.” The email came to light after a fee dispute. The three lawyers on these emails have since left the firm, which settled the fee dispute.

However, sometimes clients do discover it by auditing the lawyers’ bills. Auditing of legal business has become a growth industry. One such firm calls itself The Devil’s Advocate: Legal Fee Management & Litigation Consulting. It advises that its “clients include major corporations, government agencies, law firms, insurance companies, and anyone else who pays substantial legal fees, needs to examine the reasonableness of legal fees, or wishes to analyze litigation.” In one case, legal auditors found that the law firm charged the corporate client $24,053 for drafting injunction papers that the firm never filed. The law firm charged the client over $177,000 when the people the law firm used to staff the case met to talk to each other about how the case was going.

One lawyer recounts an incident when a partner cancelled his presentation to the law firm’s associates when the partner learned that the lawyer planned to speak against inflating billable hours:

I was asked to speak to the associates at a regional office of a major Midwestern law firm about billing practices. I was invited to speak by a partner and a staff member who were organizing an associate-training program. When the firm’s managing attorney (a partner in his fifties) learned of my intended presentation, he angrily canceled it. Why? He apparently felt threatened when he learned that I planned to tell the associates that they should record their telephone time accurately: to use the timing feature on their telephones when possible and to remind them that most telephone calls probably should be billed at one-tenth (0.1) of an hour. This partner claimed that he never had a telephone call that lasts less than three-tenths (0.3) of an hour. How can this be? He reasons that telephone calls are a distraction and that by the time he stops what he is doing to answer the telephone, talks to the caller, and then returns to what he was doing, even the shortest telephone call takes at least three-tenths of an hour. In other words, the person calling should have to pay for his lawyer’s inability to switch intellectual gears.

Those who rationalize fraudulent billing often think that there is no problem as long as no one uncovers the problems. The partner who cancelled the lawyer’s presentation is a member of that group. In contrast, the lawyer whose talk was cancelled—a partner from another law firm—is representative of the other group. That second group includes the great majority of lawyers, from my own experience. Most lawyers are honest. Most people are honest. That is why the blind newsman, tending his newsstand on the sidewalk, makes a living and is not robbed.

What to do? There are no simple answers. We do know that when law firms discover the problem, they usually ask (or require) the offending lawyer to resign. One would think that these firms would prefer that they never had the problem in the first place. One alternative is for the law firm to routinely audit its own billing to nip problems in the bud. The principle is simple enough. Red flags should go up when the in-house auditors see one lawyer charging 300 or more hours in one month. Perhaps the hours are real, because of travel time and waiting around the courthouse. The auditors will have a more objective perspective of that matter than the lawyer who routinely bills that amount. In addition, the firm can tout its internal controls when dealing with clients. Some firms are now doing that. More firms should probably start.

Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.
]]> 4
Will a Woman Be Sent to the White House in 2016? Let’s Hope! Fri, 14 Nov 2014 05:01:59 +0000 Continue reading →]]> Election 2016Political prognostications are a risky business. But I have been thinking about what the Republicans might do if Hillary Clinton announces in early 2015 (since she has indicated that is when she will make her decision) that she is running for president. While Republicans dislike this prospect because they know she might win, not to mention take most of the available oxygen out of the race along the way, they understand that they have no woman in their ranks who is qualified to be president, and it is a stretch to say they even have a woman qualified to be a vice presidential running mate. GOP vice presidential candidate Sarah Palin reminded many thinking American voters that the vice president of the United States is only a heartbeat away from becoming president. In today’s world, a vice president must actually be qualified to become president. While a vice presidential candidate does not need the experience and political moxie of the top of the ticket, voters want a running mate who they feel confident could handle the job if necessary.

As I see it, it is now imaginable that both Republicans and Democrats will try to send a woman to the White House in 2016. Let me explain why if Hillary runs we could have a woman as president, and if Hillary lost we could still have a woman as a vice president. There is also the potential we could have both.

If Hillary Runs

If Hillary announces in early 2015 that she’s in the race, it is not likely that any serious Democratic Party candidate will oppose her, although several will file for president and run in the primaries to draw attention to themselves as potential vice presidents, or future presidents. (Also, in a world where anything can happen, some will file because something could happen to Hillary which might put them in play.)

So no one should be surprised if a slew of Democrats seek the nomination, even if Hillary runs, and many have already expressed such an interest (here and in other lists alphabetically): Joe Biden (former U.S. Senator from Delaware and vice president since 2009); Howard Dean (former governor of Vermont, a 2004 presidential candidate, and the former head of the Democratic National Committee); Joe Manchin (former governor and currently U.S. Senator from West Virginia); Martin O’Malley (former mayor of Baltimore and former governor of Maryland); Edward Rendell (former mayor of Philadelphia and former governor of Pennsylvania); Brian Schweitzer (former governor of Montana); along with Jim Webb (former Secretary of the Navy and former U.S. Senator from Virginia). Bernie Sanders, an Independent U.S. Senator from Vermont, who caucuses with the Democrats, has also indicated he will run for president.

A far more interesting question is whom Hillary might select as her vice presidential running mate. The true fantasy ticket for many Democrats, and it is not an inconceivable prospective, would be for Hillary to name a woman as her running mate. This action alone would severely crack the glass ceiling, but if they won the White House they would forever demolish it. As it happens, within the Democratic Party there are a number of women whom Hillary might select as her vice presidential running mate: Tammy Baldwin (former congresswoman now U.S. Senator from Wisconsin); Kirsten Gillibrand (U.S. Senator from New York); Kamala Harris (attorney general of California); Maggie Hassan (governor of New Hampshire); Amy Klobuchar (U.S. Senator from Minnesota); Janet Napolitano (former governor of Arizona and former Secretary of Homeland Security); and Elizabeth Warren (U.S. Senator from Massachusetts).

If Hillary runs, Republicans are going to be hard pressed not to, at minimum, name a woman to run with their presidential nominee who will certainly be a man. With no GOP women in play for the Republican presidential nomination, Republicans have a problem. Because Republicans need women to win the White House, they dare not claim a woman should not be president, which I know many of them actually believe.

The GOP’s Hillary Problem

There is no Republican who shares the posture that Hillary does with the Democrats, that if she wants it, the nomination is hers. This means Hillary will come out of the primaries less damaged than whoever emerges from the GOP primaries, where not less than a dozen plus men appear to be interested in the GOP nomination: Jeb Bush (former governor of Florida); Chris Christie (governor of New Jersey); Ted Cruz (U.S. Senator from Texas); Mike Huckabee (former governor of Arkansas and 2012 presidential candidate); Jon Huntsman (former governor of Utah and 2012 presidential candidate); Bobby Jindal (governor of Louisiana); John Kasich (governor of Ohio); Rand Paul (U.S. Senator from Kentucky); Rick Perry (former governor of Texas and 2012 presidential candidate); Rob Portman (U.S. Senator from Ohio); Mitt Romney (former governor of Massachusetts and 2012 GOP presidential nominee); Marco Rubio (U.S. Senator from Florida); Paul Ryan (congressman from Wisconsin and 2012 vice presidential nominee); and Scott Walker (governor of Wisconsin).

The hardline anti-abortion policy position of today’s Republican Party has translated into a perceived GOP “war against women.” Given this reality, and the difficulty running against Hillary (with or without a woman as her running mate), whoever wins the Republican presidential nomination will have a far narrower field of politically experienced women to select as a running mate, yet a number of fascinating possibilities.

Those who have been mentioned as could-be GOP vice presidential candidates include: Kelly Ayotte (former attorney general and now U.S. Senator from New Hampshire); Michele Bachmann (congresswoman from Minnesota and 2012 presidential candidate); Joni Ernst (U.S. Senator-elect from Iowa); Mary Fallin (former congresswoman and now governor of Oklahoma); Deb Fischer (U.S. Senator from Nebraska); Nikki Haley (governor of South Carolina); Susana Martinez (governor of New Mexico); Sarah Palin (former governor of Alaska and 2008 vice presidential nominee, still has a significant GOP following); Condoleezza Rice (former national security adviser and Secretary of State); and Cathy McMorris Rodgers (congresswoman from Washington). Republican pundits have suggested that the GOP nominee go outside the political sphere and tap someone like Meg Whitman, who unsuccessfully ran for governor of California between jobs heading eBay and Hewitt Packard, or Sheryl Sandberg, chief operating officer of Facebook and bestselling author of Lean In: Women, Work, and the Will to Lead (2013).

When I mentioned that Sandberg appeared to be a Democrat, I was reminded that Elizabeth Dole had been a Democrat as well, until Nixon brought her into the Republican Party. As we talked about Elizabeth, we both agreed no Republican woman was more qualified to be president, for she had served in the Johnson and Nixon White House as Deputy Assistant to the President for Consumer Affairs; Nixon appointed her to the Federal Trade Commission; she served in the Reagan White House before becoming Secretary of Transportation; from 1991 to 1999 she served as president of the American Red Cross; President George H. W. Bush appointed her Secretary of Labor, and was on Bush’s short list to be named vice-presidential nominee in 2000, the year she sought the GOP presidential nomination. Although she had not lived in North Carolina for years, in 2001 the powers-that-be cleared the way for her to seek and obtain the state’s U.S. Senate seat, where she served until 2008. Elizabeth was born in 1936 and if she is still in good health, she would be as powerful a vice presidential candidate as Hillary could be a presidential candidate.

I have a strong hunch that 2016 is going to be an historic year with a woman elected either president, vice president, or with Hillary it could be both. If any of this happens it will end the now stalled effort to bring more women into government service, particularly the top jobs, and if you have any doubt about that being a good idea simply look at how men have handled public business for the last 200 years in this county, not to mention other places in the world.

John W. Dean, a Justia columnist, is a former counsel to the president.
]]> 6
The Internet, Religion, Transparency, and Battling Tyranny Thu, 13 Nov 2014 05:01:40 +0000 Continue reading →]]> Internet ResearchReporter Laurie Goodstein wrote a fascinating New York Times front-page story this week on the admissions by the Church of Jesus Christ of Latter-day Saints (“LDS Church”) regarding their founder, Joseph Smith, and the fact he had approximately 40 wives, one of whom was age 14, and some others of whom were already married to other men. This came as a surprise to numerous LDS believers, who had been taught that Smith was a paradigm of virtue devoted to his first wife, Emma. The truth is that he was a rapacious polygamist, and his first wife was not a fan of his polygamy or his revelations on the topic. Some believers are having difficulty squaring these now-documented facts with what they had previously been told about the founder of their faith.

From my perspective, the most important element of this story is why the LDS Church found it necessary to post these damaging facts on its website, given that this is not the most flattering information. The apparent answer is the Internet: “Elder Steven E. Snow, the church historian and a member of its senior leadership, said in an interview [with Goodstein], ‘There is so much out there on the Internet that we felt we owed our members a safe place where they could go to get reliable, faith-promoting information that was true about some of these more difficult aspects of our history.’” Janet Heimlich, author of Breaking Their Will: Shedding Light on Religious Maltreatment and founder of the Child-Friendly Faith Project, elaborates on this point: “The fact that the LDS church is posting these essays online—even though it is not making them easy to find—speaks volumes. I have been struck by how insular the Mormon community is, yet how former members needed only to do one or two Google searches to find information that contradicted what they had been told their whole lives, including how they were supposed to believe, feel, and act as children. From there, their belief system quickly unraveled. So the church is losing members and it’s scared. And it realizes that it would prefer to be the messenger of such information than other critical sites as a way to stop the hemorrhaging.”

In short, it is no longer as feasible to perpetuate historical misinformation by religious organizations as it was before the Internet. With blogs, a proliferation of media outlets, social media, and websites established to address specific problems in particular communities, the balance of power between the powerful and the vulnerable has been altered for the better and hopefully permanently.

Religious cultures control the beliefs and perceptions of their believers by limiting access to outside information and especially information that undermines their authority. The Internet is the first populist tool that creates nearly insurmountable challenges to such image-building and unless the group bans the use of computers and smartphones altogether (not just ownership of them), the information streaming on the Internet can send shockwaves into firm foundations carefully constructed by religious leaders.

The Internet also has been useful in uncovering the bad acts of religious organizations (and plenty of others), particularly where they resisted transparency. Thus, it can be an agent for justice and the truth. In large part due to the Internet and the World Wide Web, we know much more now about the dangers of polygamy and clergy sex abuse. This sword is double-edged, however, as ISIS and other jihadist organizations are using the Internet to recruit new members into terrorism. Yet, the answer to this is likely the Internet!

The Internet and Disclosing Polygamy’s Dangers

Until recently, most Americans knew little about the realities of polygamous cultures in the United States, such as the Fundamentalist Church of Jesus Christ of Latter-day Saints, which traces its roots to Joseph Smith, and from which the LDS has plainly separated itself. They have been secretive groups that chose to live under the radar so as to avoid prosecution for polygamy, child abuse, statutory rape, and child abandonment.

Even groups dedicated to such secrecy, however, have had a difficult time maintaining a low profile when the Internet offers such easy access to stories, pictures, and news items as they happen. When Texas officials raided the FLDS’s Yearning for Zion Ranch and placed the children in foster care because of the evidence of child brides, the information was not limited to reports on the evening news, the media, or even blogs, but also could be shared among a vast network of citizens, scholars, lawyers, historians, child advocacy groups, and religious advocacy groups. With the 24-hour news cycle and the Internet coverage of their behavior, it became increasingly embarrassing for prosecutors not only in Texas but also Arizona to ignore the abuses going on in the community. They were marrying off adolescents, who were having babies soon thereafter, and abandoning boys. This culture of information led to prophet Warren Jeffs being placed on the FBI’s Top Ten Most Wanted List after arranging thousands of polygamous marriages between adolescent girls and much older men, arrested, and tried for his crimes. He is now in jail where he belongs.

Author of God’s Brothel, Andrea Moore-Emmett, says, “The Internet has proven to be a beacon of light on the dark corners of religion’s secrets—both new secrets and old. The proverbial ‘Shush, don’t tell’ has perpetuated abuse while lies of omission have given collective amnesia to multitudes of unwitting followers. The polygamy story in the United States is a perfect example of how these secrets have been used and how they have been exposed by the Internet’s searing beacon of light.”

The Internet and Uncovering Sex Abuse and the Cover-ups

The Internet had one of its most fortuitous impacts on crime in its capacity to bring survivors of abuse in religious organizations together, and to unveil the orchestrated cover-ups that have become one of the marks of religious organizations (and many others) in this era. The impact has been felt from the largest religious organization in the world, the Roman Catholic Church, to the small and insular, like the FLDS and the ultra-Orthodox Jews. In each of these religious organizations, among many others across the faith spectrum, higher-ups hid knowledge about child sex abuse for a variety of motives, including the protection of image, the preservation of power, and the fear of legal and financial liability.

The Internet has flushed out even the most insular. As Hella Winston, award-winning journalist and author of Unchosen: the Hidden Lives of Hasidic Rebels, explains, “For people living in a community where speaking out publicly about abuse can be socially, emotionally and even physically perilous, the Internet played a critical role not only in exposing the problem of abuse but allowing survivors to connect safely with one another and with others—both within and outside their communities.” These survivors have been able to find comfort and power through the Internet. “Blogs like UOJ and Failed Messiah, along with the Awareness Center, were instrumental in fostering the anti-abuse movement in the Orthodox community, publicizing stories of abuse and exposing those (often powerful and until then, untouchable) people, who enabled it and connecting survivors and advocates who went on to effect real change in the world.”

The Internet also empowers survivors to learn the facts about their perpetrators, the religious organizations that employ or have employed them, and other fellow survivors: “Now, a struggling man who has been told for years by church officials: ‘We’ll make sure Rev. Bob won’t ever be around kids’ can often—with a few clicks of a mouse—find out that he’s been deceived yet again and that Rev. Bob still pastors a church,” says David Clohessy of the Survivors Network of those Abused by Priests, or SNAP.

Given the size and global scope of the Catholic Church, it is inconceivable that, without the Internet, connections could have been made between survivors across countries as they have, with strong coalitions between Irish, Australian, and American survivors, and the emergence of a pattern of behavior by the hierarchy that is echoed in one country after another. Such a global comparison of experiences and the ability to see such patterns were enhanced dramatically by the Internet. In turn, the global character of the scandal earned the attention of the United Nations, which held hearings and issued damning reports on the failures of the Catholic Church to protect children, despite being a signatory to the Convention on the Rights of the Child.

The Internet is also the home for the remarkable database of facts, documents, and news stories about the ongoing revelations of clergy abuse at, which was founded by Terry McKiernan and Anne Barrett Doyle, who now devote the vast majority of their time to building and securing this cache of information.

The Internet as a Tool of Tyranny by Islamic Terrorists

As the vast web of child pornography proves, the Internet is not solely a tool for good. Today, it is being deployed by ISIS and other radical Islamic organizations to recruit young followers.

At the same time, it has been able to use images on the Internet to remotely indoctrinate converts, leading one man to kill a police officer in Ottawa, Canada. These developments are disturbing, to be sure, but they may not be as menacing as they appear at first glance. The cure for such propaganda is more information on the Internet, e.g., human rights and child protection groups and western countries countering the propaganda with facts. As the recruited young women learn what ISIS is truly like, and perhaps some escape, we will learn, via the Internet, the truth. And future recruits may well be deterred.

Internet Sunshine and the Path to Accountability

The Internet by itself cannot guarantee the safety or protection of the vulnerable. There is also a need for neutral law and human rights that are respected and enforced by the vast majority. The one thing that is for certain is that increasing “religious liberty” on the international front is not the pathway to such accountability, but rather a message to believers to overcome neutral laws and basic human rights. Professor Elizabeth Shakman Hurd has rightly criticized the international extreme religious liberty movement as a step in the wrong direction for these very reasons.

The sunlight that the Internet has been able to shed in the areas discussed already has disinfected a great deal, but there are still many pockets of darkness for the vulnerable, including unfolding sex abuse scandals, the medical neglect of children, and the covert political lobbying by religious organizations for exemptions and favors that put the vulnerable at risk or that undermine civil rights, as the Mississippi state RFRA does, and the Arizona RFRA would have. No doubt, the Internet will be critical in bringing these practices to light as well.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts,, and statutes of limitations for child sex abuse, Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is
]]> 4
What Will the Supreme Court Say About Searches of Hotel Guest Records? Wed, 12 Nov 2014 05:01:57 +0000 Continue reading →]]> Hotel ReceptionA few weeks ago, the U.S. Supreme Court granted review in City of Los Angeles v. Patel, a case that raises several interesting questions. A Lodging (i.e., hotel and motel) Association complains that a Los Angeles municipal code section violates the Fourth Amendment right to be free of unreasonable searches and seizures. The law in question requires hotels to maintain guest registries and to make those registries available for police inspection upon demand. The registries must contain such information as the guest’s name and address; the number of people in the guest’s party; the guest’s date and time of arrival and scheduled date of departure; and the room number assigned to the guest. The records must be must be “kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent to that area” for 90 days.

The challenged part of the law provides that hotel guest records “shall be made available to any officer of the Los Angeles Police Department for inspection,” provided that, “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” The city stipulated that this part of the law permits police officers to inspect hotel records at will without either consent or a search warrant. A hotel’s refusal to comply with a police officer’s inspection demand constitutes a misdemeanor, punishable by up to six months in jail and a $1000 fine.

The three issues on which the Court has granted review are (1) Does compelled access to a hotel’s guest records constitute a Fourth Amendment “search” of the hotel?; (2) May hotels bring a facial challenge to the statue authorizing guest record access (and penalizing the denial of such access) or must it limit itself to as-applied claims about particular searches of guest records that have already been initiated or carried out?; and (3) Does the statute violate the Fourth Amendment, given the lack of a provision providing for pre-compliance judicial review? This column will examine these questions as well as one unasked question that may be as important as the others.

What Is a Search?

The first question posed by Patel is a very basic one about when the Fourth Amendment does and does not apply to governmental activity. The Fourth Amendment governs two sorts of state activities: “searches” and “seizures.” Specifically, it prohibits “unreasonable” searches and seizures and identifies various prerequisites to the acquisition of a valid warrant. To be regulated by the Fourth Amendment, then, a government action must qualify as either a “search” or a “seizure.” Otherwise, as far as this Amendment is concerned, a government may, without event, behave as unreasonably as it likes. In Patel, the relevant category is “searches,” and the question is accordingly whether perusing a hotel’s guest records counts under this category.

In addition to asking whether a particular activity does or does not qualify as a “search” in some general sense, it is usually important to know who is being “searched,” if in fact anyone is. For example, a police officer’s rifling through the glove compartment of John Doe’s car certainly does qualify as a search. However, if police find evidence in the glove compartment that John Doe’s one-time passenger, Reese Roe, is a drug dealer, then the fact that the police have performed a search will not be enough to empower Roe to object to the search at a suppression hearing preceding her own criminal trial. Only someone who is searched can complain about the unreasonableness of a search.

This requirement, sometimes known as “Fourth Amendment standing,” is bad news for the hypothetical Roe, because the Supreme Court has said, in Rakas v. Illinois, that “mere passengers” lack a “reasonable expectation of privacy” in the glove compartment of the vehicle in which they are passengers. This means that although police have performed a search in examining the glove compartment, they have not performed a search of Roe, and Roe therefore has no grounds for complaining about the search (and thus can neither suppress what the police found in the glove compartment nor bring a lawsuit against the police for violating her civil rights if the police did violate the Fourth Amendment).

This is all important in Patel because one could imagine someone other than the operator(s) of a hotel complaining about a statute that gives police authority to examine hotel guest records at will. That someone might be a hotel guest. Hotel guests might not want the police (or really, anyone other than employees of the hotel) to know that they stayed at the hotel, what room they occupied, where they live, or any of the other confidential information that they need to share with the hotel.

So why didn’t hotel guests (or some subset of hotel guests) challenge the constitutionality of the statute in Patel? For the simple reason that the U.S. Supreme Court has held specifically that people who share personal information with third parties retain no “reasonable expectation of privacy” in having that information remain free of surveillance. The two cases in which the Court announced this principle are Smith v. Maryland and United States v. Miller.

Under Smith and Miller, an individual forfeits any reasonable expectation of privacy that she has in private material when she hands over that material to third parties. This is why even the majority opinion in the Ninth Circuit accepted that police officers do not “search” hotel guests, as a matter of Fourth Amendment law, when they forcibly examine guest records held by the hotel: “To be sure, the guests lack any privacy interest of their own in the hotel’s records. [citations omitted] But that is because the records belong to the hotel, not the guest, and the records contain information that the guests have voluntarily disclosed to the hotel.”

Accordingly, someone other than the hotel guests must challenge the statute, despite the fact that the guests themselves are arguably the ones most likely to feel violated by government surveillance of records containing their identifying information, length of stay, etc. This is what I mean when I say that the question not asked—whether the examination of the records constitutes a search of hotel guests—may be the most important question in this case. This is especially true in light of the language of Justice Sotomayor in her concurring opinion in United States v. Jones, where she casts doubt on the idea that, in the information age, handing over data to a third party ought to forfeit one’s reasonable expectation of privacy in that data, as the precedents hold that it does:

Justice Sotomayor explained: “I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year…. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

There is reason to think, given the vote alignment in Jones, that Justice Sotomayor may have allies in her thinking. So the unasked question may in fact come up as this case goes forward in the Supreme Court, and this question would be “Do hotel guests have a reasonable expectation of privacy in the hotel guest registration materials that record guests’ names, addresses, room numbers, and other personal data about them?”

Sticking with the actual questions presented, however, the hotel does seem like a sensible backup candidate for a privacy interest in the records. Though the ultimate interested party in that privacy may be the guest, the hotel itself is running a business in which it has proprietary interests in keeping confidential its guest lists and other such information stored in its files. Indeed, even one dissenting opinion in the Ninth Circuit decision in Patel acknowledges that examinations of hotel records would constitute a search. It says that “[t]he Patels may be right in asserting that as a practical matter the Los Angeles Police Department has applied the ordinance to undertake searches that violate the Fourth Amendment.” It seems fair to expect, accordingly, that the U.S. Supreme Court will agree that mandatory examination of a hotel’s guest records does implicate the Fourth Amendment. Stated differently, the surveillance authorized by the statute challenged in Patel does appear to constitute a “search” of (at least) the hotel, for Fourth Amendment purposes.

When Is a Search Unreasonable?

Another question in Patel is whether it is reasonable, under the Fourth Amendment, for police to access a hotel’s records, as authorized by the challenged statute, in the absence of a warrant, individualized suspicion regarding the hotel, and any sort of judicial preview or neutral examination of why police wish to examine this particular hotel’s records. According to both the majority opinion below and one of the dissents, the answer to this question is plainly “no.” In other words, if a police officer were simply to approach a hotel and, under the authority of the challenged statute, demand access to the guest records without a warrant, without individualized suspicion, and without a neutral preview of any sort, then this demand would not just implicate but would appear also to violate the Fourth Amendment rights of the people who operate the hotel.

At the same time, the majority acknowledges that the searches at issue here may qualify as administrative rather than criminal investigatory searches. Administrative searches are directed at ensuring compliance with a non-criminal regulatory regime. The goal, when government officials conduct an administrative search, is not to find evidence of criminal misconduct that may be used in a future prosecution but instead, for example, to make sure that the conditions in a building are up to code.

Courts judge administrative searches more leniently than they do the sorts of searches motivated by criminal law enforcement objectives. This is in part because the government takes a less hostile and adversarial stance toward its targets in such searches. Yet even for administrative searches, there are standards and requirements that the unadorned authorization contained in the statute challenged in Patel fails to satisfy.

How May Hotels Challenge the Statute?

The second question is whether people who are bound by the statute to comply with unconstitutional demands for access to guest records may bring a facial challenge to the validity of the statute. That is, does a hotel operator need to wait until a police officer actually comes and demands access to guest records before bringing a Fourth Amendment (as-applied) challenge to the demand, or may the operator challenge the statute as unconstitutional before particular officers have acted on its authority?

Answering this question is not strictly a matter of constitutional criminal procedure. Bringing a facial challenge to an unconstitutional statute outside of the First Amendment free speech area, under United States v. Salerno, may require a showing that there can be no constitutional application of the statute in question. Some scholars, including fellow Verdict columnist Professor Michael C. Dorf, argue that the Salerno language is more restrictive than the Court’s actual practice, but it is frequently cited, so I shall assume that it applies here. Under Salerno, if the statute could be constitutionally enforced on some occasions, then the appropriate context in which to bring a claim of unconstitutionality would be an as-applied challenge to the particular search (or other unconstitutional conduct) that a public official has carried out pursuant to the statute in question. As the Supreme Court has said on numerous occasions, it prefers cases that are concrete and rich in facts over cases that are abstract and purely theoretical considerations of statutes.

The question about facial challenges in this case thus amounts to a question about (1) whether it is appropriate to apply the Salerno “no constitutional applications” language to a statute authorizing police searches, and if so, (2) whether the statute challenged in Patel qualifies as having no constitutional applications.

Starting with the second question, the majority opinion in the lower court finds that because the statute in Patel authorizes a search without requiring any of the things that make a search valid (e.g., consent, a warrant, individualized suspicion, or a pre-search review by a neutral entity), any search conducted pursuant to the statute would thereby be unconstitutional. The dissenting position is that because some searches police might conduct would conform to constitutional requirements—because police might get a warrant, even though the statute does not require them to, or because police might have individualized suspicion coupled with exigent circumstances excusing the lack of a warrant—it is therefore not the case that all searches conducted under the law would violate the Fourth Amendment.

It remains to be seen whether the Supreme Court wishes to require that all applications of a statute be unconstitutional under the Fourth Amendment to allow for a challenge to a statute that has not been specifically enforced against the challengers. However, it seems that if a police officer has consent or a warrant or individualized suspicion coupled with exigent circumstances excusing the absence of a warrant, then the officer is not relying on the statute as an authorization for his search. Rather, the officer applying the statute is one who lacks any of the usual prerequisites associated with a Fourth Amendment search but who nonetheless goes forward with a search solely on the authority of the challenged statute. And the officer who does that has acted in violation of the Fourth Amendment every time.

By analogy, consider the three-judge plurality opinion in Planned Parenthood v. Casey, which struck down the husband-notification provision of the Pennsylvania abortion law. Those defending the statute had argued that a facial challenge to it should fail, because most women would notify their husbands about a planned abortion anyway or would have little trouble doing so, so the law would not pose an undue burden for the vast majority of women governed by it. The plurality’s response was that “[t]he fact that [the challenged statute] may affect fewer than one percent of women seeking abortions does not save it from facial invalidity, since the proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom it is irrelevant.”

Likewise in Patel, for the police officers who would comply with the requirements of the Fourth Amendment regardless of the statute’s empowering them to do otherwise, the statute is largely irrelevant. The relevant category of searches authorized by the Los Angeles law is the group of searches that do not otherwise conform to legal requirements but that nonetheless fall squarely within the authorization granted by the law, which permits officers to search guest records at will and on demand, without a warrant, without individualized suspicion, without consent, and without any pre-compliance neutral review.

The clearest way to think about the statute in this case, I would suggest, is as a general warrant. General warrants played a central role in motivating the drafting of the Fourth Amendment (as well as in inspiring the Revolutionary War itself). A general warrant authorized law enforcement to perform searches on targets of their choice, discretionarily, without any individualized basis in suspicion or otherwise. The Los Angeles Code section stands as the equivalent of such a general warrant, granting permission to the Los Angeles Police Department to search any selected individual hotels’ guest records at will and at its unbridled discretion, while simultaneously giving permission to the government to arrest and prosecute any hotel operators who resist police efforts to carry out this unbounded authority.

It would be odd, in the face of this general warrant taking the form of a legislative enactment, to demand that hotel operators wait for the ticking bomb to explode (and for themselves to be faced with the choice of relinquishing privacy or risking criminal conviction, incarceration, and fines) before allowing a court to say what is obvious to anyone who examines the law in question: this statute empowers police to perform unreasonable searches and is therefore a blatant violation of the Fourth Amendment, a constitutional provision that binds not only the executive branch of government embodied in law enforcement but the legislative branch as well.

Sherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
]]> 0