Verdict » : Ebola Panic Calls for Clarifying the Law Legal Analysis and Commentary from Justia Fri, 31 Oct 2014 21:16:27 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no Travel Bans and Mandatory Quarantines: Ebola Panic Calls for Clarifying the Law Fri, 31 Oct 2014 04:01:01 +0000 Continue reading →]]> Quarantine SuitThere is way too much demagoguery over the handling of the African Ebola epidemic. Politicians are pretending to be public health experts, not to mention unnecessarily causing public alarm. It is playing out at both the state and federal level, with politicians calling for two main tactics to prevent the spread of Ebola in the United States: Travel bans from afflicted countries and mandatory quarantines of potentially infected persons.

Neither political approach will solve the problem of Ebola; rather they will cause compounding problems for healthcare personnel forced to deal with the willfully ignorant politicians claiming solutions not based on any medical knowledge. Moreover, these political remedies are fraught with legal problems.

Mandatory Quarantines

Fellow columnist Mike Dorf saw the mandatory quarantine issues coming in his October 8, 2014, column “Containing Ebola: Quarantine and the Constitution,” and he will have more to say soon about the civil liberties problems associated with quarantine. These are no longer hypothetical issues. A number of states, contrary to the recommendations of the Obama Administration and the Centers for Disease Control and Prevention (CDC), are imposing mandatory quarantines on healthcare professionals and others returning from West Africa who may or may not have been infectiously exposed to Ebola.

For example, New Jersey Governor Chris Christie literally imprisoned nurse Kaci Hickox upon her return to the United States after she had been working with Ebola victims in West Africa as part of Doctors Without Borders. Rather than being received like the heroine she is, Ms. Hickox reports she was treated like a criminal and a leper. After seven hours of interrogation at the airport and already exhausted from two days of travel from Sierra Leone, she was sent to an isolation tent outside a New Jersey hospital with no running water, and a porta potty. And despite having no signs or symptoms of Ebola, she was told she would have to remain in this tent for twenty-one days, the incubation period for Ebola. Ms. Hickox, however took on Governor Christie by hiring a lawyer and using her iPhone, and successfully convinced Christie to allow her to return to her home in upstate Maine.

But when she returned home, she was again quarantined by another tough talking Republican governor running for reelections, Paul LaPage, who further inflamed the issues with Ms. Hickox, treating this professional nurse as a terrorist with a germ warfare weapon, although she still had no signs of being contagious. The Hickox case, reported by CNN, illuminates the two sides of this debate. Grandstanding politicians want everyone with any possible contact with Ebola—even people like Ms. Hickox who have had controlled contact with infected people—off the street, out of circulation, and confined for the full 21-day incubation period of the virus. On the other side are the professionals who deal with deadly infectious diseases on a daily basis, who find no scientific reason to treat professional heath care workers, or foreign nationals who live in the same country, as if they are carriers of the disease when they exhibit no symptoms. The CDC and medical experts say it is not necessary for a person who has merely treated Ebola patients to be quarantined, and as long as they have no symptoms, they cannot spread the disease. Under the CDC guidelines, persons exposed to Ebola should self-monitor for 21 days, but as long as they have no symptoms, they cannot transmit the disease.

Nurse Hickox, like the CDC and Obama Administration, is worried that others will not volunteer to assist Ebola victims who desperately need help. For one thing, not everyone who contracts the disease dies, but even those for whom the disease proves lethal, nurses like Ms. Hickox can assist them in passing with dignity. As Ms. Hickox explains, if they are going to be imprisoned for three weeks when they return to the United States, American nurses are not going to assist. In short, the unfounded fear being generated by politicians is only hurting persons who are assisting with controlling and eradicating Ebola, and contrary to claims of politicians, health care professionals are acting reasonably based on the well established medical science relating to Ebola.

Kaci Hickox has made clear that she has no interest in putting anyone else at danger. Nonetheless, she is not going to comply with a fear-driven, scientifically unjustified, over-the-top quarantine. If Maine Governor Paul LePage tries to force Ms. Hickox into quarantine, her lawyers say they will take the issue to the courts to resolve. As one of her lawyers points out it is unclear how this will play out in court because “we’re treading in areas” in which “there’s not a whole lot of case law.” Meanwhile, Ms. Hickox’s lawyers and Governor LePage are negotiating over what Kaci Hickox can and cannot do as the incubation period runs its course. Frankly, I hope this matter goes to court to clarify the law, for presumably in a courtroom, science and facts based on hard evidence along with solid legal analysis will trump fear and demagoguery.

Fortunately, President Obama and his cabinet and staff have not responded to the knee-jerk reactions of the less-than-thoughtful politicians.

Travel Bans on Ebola-Plagued Countries

When reports of the Ebola virus ravaging West Africa first surfaced, many of the GOP presidential wannabes began calling for travel bans from the afflicted countries. For example, Texas Tea Party Republican Senator Ted Cruz claimed the federal government was not doing “everything possible to ensure that people infected with Ebola do not come to the United States and enter the general population.” Cruz wanted the Obama Administration to shut down air travel from Liberia, Sierra Leone or Guinea to the United States, notwithstanding the fact there are no direct flights from these countries.

Realizing such a ban would fail, next Republicans called for denying travel visas to the United States from these countries. Members of Congress sent letters to Secretary of State John Kerry and Department of Homeland Security (DHS) Secretary Jeh Johnson on October 15 calling for such action. A few days later, after the President created and implemented a screening process (checking temperatures of those coming from West Africa) at U.S. key airports, the White House publicly addressed the visa issue. The White House dismissed the called for blanket visa ban, explaining: “Now, if we were to put in place a travel ban or a visa ban, it would provide a direct incentive for individuals seeking to travel to the United States to go underground and to seek to evade this screening and to not be candid about their travel history in order to enter the country. And that means it would be much harder for us to keep tabs on these individuals and … to protect them and to protect, more importantly, the American public.”

The Washington Post reports such visa bans would cause further economic damage to the afflicted countries and add difficulty getting health care workers in and out of these countries to assist in fighting the epidemic. Nine airlines have already stopped serving these countries, and if the remaining two pulled out, which the blanket visa ban would likely cause, it would only make dealing with the problem more difficult. Finally, the Post points out, the U.S. State Department has already issued a travel advisory for the region, and historically such travel bans have not been effective in preventing the spread of diseases anyway.

There are also legal issues. While foreign nationals do not have a constitutional right to enter the United States, it is not clear that the President can issue a blanket ban on aliens being given a visa from specific countries that are experiencing the deadly epidemic. To advise members of Congress, the Congressional Research Service (CRS) has issued two broad legal summaries of the President’s powers to institute such a travel ban: The first on October 6, 2014 (“The Ebola Outbreak: Select Legal Issues”) followed by a second on October 23, 2014 (“Can the President Bar Foreign Travelers from Ebola-Stricken Countries from Entering the United States”). These documents have been published by the Federation of American Scientists.

The CRS analysis notes that the U.S. Supreme Court held in Zemel v. Rusk (1965) that a Secretary of State, pursuant to a presidential directive, can impose restrictions on passports to travel to countries “where there is imminent danger to the public health or the physical safety of United States travellers” [sic]. These restrictions can be placed on the travel of Americans, but so far no such action has been taken. In addition, CRS explains that while the President has broad powers to restrict a foreign national coming into the United States on specific health-related grounds, there are only limited restrictions that can be placed on U.S. citizens who wish to reenter the United States. Thus, Americans who have traveled to the affected West African nations cannot be blocked from returning home.

However, under Department of Transportation regulations, airlines can refuse to carry passengers with infectious diseases when it has been determined they in fact pose a direct threat to the health and safety of others. Airlines can rely on the CDC and other government agency directives in these situations, but no such directives have been issued regarding Ebola. The CDC and the Department of Homeland Security maintain public health “Do Not Board” lists, and have such a list for Ebola victims. Airlines are forbidden from issuing boarding passes to these people, but the names of the people on the lists and whether the lists are currently being implemented are not public information. Finally, the CDC and DHS can and in fact are conducting screenings at foreign and American airports to identify travelers with communicable diseases, with the effort focused on select American airports.

The CRS legal summary finds no precedent for a President to do what many Republicans wish him to do: simply ban travel by anyone and everyone who might have been in the Ebola-stricken West African countries. The authority the President does have under the Immigration and Nationality Act (INA), section 212(a)(1), is limited to foreign nationals who actually have a “communicable disease of public health significance” like Ebola, meaning they have tested positive for the disease—not those who have merely treated or been in contact with those who have Ebola, and who evidence no sign of the disease, like Kaci Hickox.

To reach people like Kaci, who are without symptoms and who have merely been in Sierra Leone, Guinea, and Liberia, several members of Congress have urged the President to rely on section 212(f) of the INA. Section 212(f) provides: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” CRS acknowledges that this the broad language, which has been used to bar entry of terrorists and persons associated with foreign governments that engage in horrendous human rights violations, has never been used for a travel ban because of public health concerns.

I seriously doubt it could be so used. How could a President find that allowing entry to a citizen from a country stricken by Ebola, or a visitor to that country, simply by the fact of being from or in that country without any symptoms of Ebola whatsoever, “would be detrimental to the interest of the United States.” What is the detriment? That after 21 days they might test positive for Ebola, and have to be treated for the disease. Contracting Ebola does not mean automatic death. And why limit it to Ebola when there are many other deadly infectious diseases? To say that too many politicians, and members of Congress who should know better, are reacting politically, not medically or thoughtfully, is an understatement. This largely Republican hand-wring over Ebola is ludicrous in a country with a gun epidemic that will kill some 30,000 Americans every year—a killer epidemic that the GOP actually encourages. Hopefully the politicians will get reasonable, for many more Americans will die from falling off ladders this year—approximately 120—than from Ebola, yet Republicans are not demanding ladders be quarantined or banned from manufacture in, or importation to, the United States.

Author Note: Within twelve hours of posting this column the New York Times reported that Judge Charles C. LaVerdiere, the chief judge for the Maine District Courts, ruled that nurse Kaci Hickox showed no signs of Ebola, therefore she could not be quarantined. The Times notes, “The order requires Ms. Hickox to submit to daily monitoring for symptoms, to coordinate her travel with state health officials, and to notify them immediately if symptoms appear. Ms. Hickox has agreed to follow the requirements.” Remarkably, Governor LePage called the common sense decision “unfortunate.”

John W. Dean, a Justia columnist, is a former counsel to the president.
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Progressive Taxation and Spending Must Both Be Part of the Fight Against Inequality Fri, 31 Oct 2014 04:00:31 +0000 Continue reading →]]> MoneyEconomic inequality has emerged over the last few years as a matter of serious concern in the United States and elsewhere. Prior to the emergence of the so-called Occupy movement, American policymakers—and to a surprising degree, economists and other academics—considered inequality to be, at best, a secondary matter of concern, far behind the more central goal of making the economy grow.

It has become clear over the last generation, however, that economic growth does not guarantee improvements in the living standards of the bulk of our citizens. There is now overwhelming evidence that the economy’s fruits are being enjoyed ever more by a tiny slice at the top of the income spectrum. Meanwhile, even people who never thought of themselves as poor now discover that they are precariously close to facing economic devastation.

With inequality now very much a part of the U.S. political conversation, a new set of issues has emerged. Among the most important of these is the question of what, exactly, it is about inequality that we dislike. Is the problem that there are now too many poor people? That there are too many people who are on the precipice of becoming poor? That the middle class is shrinking, and that the incomes of the middle class are stagnating? That the rich are too influential, too ostentatious, or too uncaring?

My view continues to be that our policies should be changed in a way that will narrow the disparities between those at the top and the bottom, by pushing down at the top, and by pulling up from the bottom. But the alternative argument, that we should focus our efforts only on the bottom (and perhaps the middle), can be rejected only if we first fully comprehend it, which will allow us to understand where it falls short.

Bottom Up or Top Down, or Both?

Are we concerned only about poverty, or is there something wrong with inequality per se? That is, are we concerned only about pulling up those at the bottom, or also about pulling those at the top back toward the rest of the pack? If we are concerned about the plight of the poor, after all, then we might not really care either way about the non-poor, or about the range of incomes and wealth for those who are not struggling merely to survive.

At times, this distinction is used merely as a distraction by those who care about neither poverty nor inequality. In response to a proposal to increase taxes on rich people, for example, conservatives (Republicans as well as some Democrats) will say, “Well, we should really be thinking about how to help the poor, not to gratuitously harm the rich.” Of course, when the time comes to consider policies to help the poor, these same people turn out to be utterly unconcerned with the plight of the poor or with those who are on the brink of economic disaster.

Faced with policies that would really help the economically vulnerable (such as an increase in the minimum wage, or extensions of unemployment benefits for those suffering from the weak economy), all we then hear is how inefficient it would be to help such people, and that we should merely allow a rising tide to lift all boats. But it is precisely because such trickle-down bromides have been proven so disastrously wrong that we are finally having this discussion about poverty and inequality at all.

Although there are people who use the “What do we really care about, poverty or inequality?” question as a distraction, who strategically set up a moving target to prevent any action ever from being taken, there are also people who argue in good faith that the object of our concern and policy efforts should be exclusively focused on those toward the bottom of the economic scale, and that the fortunate few at the top should simply not be part of the discussion.

The Good Faith Version of the “Let’s Focus Only on Poverty, and Ignore the Rich” Argument

This discussion has a long history, but a particularly clear recent version of the argument that “soaking the rich” is not a legitimate policy goal was provided earlier this month on the op-ed page of The New York Times. Edward Kleinbard, a law professor at the University of Southern California, explicitly argued that we should stop trying to increase taxes on the rich—not because he is unconcerned with the non-rich, but because he believes that there are better ways to help the non-rich through government spending, rather than by taxing wealthy people.

It is important to understand that Professor Kleinbard is absolutely not someone whom we should suspect of being an apologist for “the 1%.” Although he is a former corporate lawyer, he now uses his knowledge and experience in his academic career to focus on ways to prevent the rich from gaming the political system (and especially the tax system). If there is anyone who is above suspicion for being engaged in the kind of shell game that I described above, Professor Kleinbard is that person. Although I ultimately disagree with his conclusion, his argument deserves careful consideration.

Professor Kleinbard’s op-ed might be read to suggest only that there is no political will for increasing taxes on the wealthy. Thus, he might merely be arguing that focusing our limited political capital on an unwinnable fight is simply bad strategy. But even that argument ultimately assumes that the benefits of increasing taxes on the rich would simply not be sufficiently important to justify spending time trying to win that battle. Ultimately, therefore, this argument requires confronting the question of whether there is some positive policy outcome that could be achieved by increasing taxes on the rich, and whether that outcome is more important than what could be achieved by ignoring the rich and fighting directly for increased spending on everyone else.

Professor Kleinbard’s argument is quite innovative and, as far as it goes, largely correct. He notes that “government spending invariably is very progressive,” not just because of the programs that are obviously directed at helping the least well-off among us (Food Stamps, Medicaid, and other programs that the Republican Party has so aggressively vilified), but because even spending on things like highways provides benefits that are a larger percentage of the incomes of the middle class and poor than of the rich.

In short, then, when Professor Kleinbard says that progressives are wrong, he is faulting them only for focusing on the progressivity of the tax system alone, whereas “progressive fiscal outcomes do not require particularly progressive tax systems — just big ones, to support substantial government investment and insurance programs.” That is, he argues that what we really need is Big Government.

As shocking, even radical, as that argument might sound, Professor Kleinbard is absolutely right. What makes a modern economy good for its people is its ability to provide stable jobs at decent pay, access to health care that prevents “medical bankruptcies” and other middle- and lower-class tragedies, quality universal primary and secondary education, access to higher education, and secure retirements. Experience has shown that all of these can be provided much more effectively—and, as we can especially see in our bloated and costly health care system, much more inexpensively—by the federal government.

The Tax Side of the Argument

As far as it goes, then, this argument is quite convincing. There is a strong case to be made that the federal government’s role in the economy is too small, and that Ronald Reagan’s famous line that “government is not the solution to the problem, government is the problem” is completely wrong.

All that tells us, however, is that decisions about government spending are important, not that decisions about taxes are unimportant, or even that they are sufficiently less important that we can strategically ignore them. We need to think carefully about how decisions about taxes affect the overall story, too.

If the argument is that we cannot tax the rich any further than we already do, but we need to spend much more on (inherently progressive) government programs, then the question is where the money will come from. Professor Kleinbard does not argue for an increase in the overall level of government debt, or permanently higher deficits—even though there are creditable arguments to that effect. Instead, he presumes that the taxes will come from the non-rich.

At first blush, it might sound silly to argue in favor of taxing the non-rich, only to turn around and spend that money to help the non-rich, but it is actually possible to do exactly that in a way that has a net positive effect on the well being of everyone. Because so many of the things that make people better off can best be provided by pooling resources—retirement, education, infrastructure, and so on—a progressive spending program can help everyone and enhance overall progressivity, even if it is funded non-progressively. Many highly egalitarian European countries levy mass taxes on everyone to fund large, effective government sectors.

But it would be even more progressive to fund such socially beneficial government spending through taxes on the rich, which brings us back to the question of why we have to unilaterally disarm on the question of progressive taxation.

Why Tax the Rich, When We Do Not Have To?

Professor Kleinbard argues that “the American tax system already is the most progressive in the developed world,” which strikes me (and others) as clearly wrong. In part, that difference of opinion is based on statistical subtleties that are not worth airing here. The more important point, however, is that even if it were true that the U.S. tax system is currently more progressive than most other countries’, that does not tell us anything about what is possible, that is, what the limits are in terms of progressive taxation.

After all, compared to other countries, America also has much more wealth owned by a tiny fraction of our population, because even a progressive tax system can leave the wealthy with the lion’s share of after-tax income. So, even if European countries collect less of their tax revenues from rich people than we do, that says nothing at all about the overall amount of revenue that could be collected from progressive taxes. It also means that we could both collect more taxes from rich people and leave the wealthy in the U.S. with more after-tax wealth than their European counterparts (if we feel that doing so is necessary as a political matter).

In other words, saying that “our taxes are already relatively progressive” is not the same as saying that “our tax system cannot collect more money from the higher end of the spectrum.”

Perhaps, however, the wealthy are so well organized politically that they will stymie any effort to “soak the rich,” so that we would be better off spending our political resources on progressive spending. But the one thing that has changed most about the U.S. political debate over the past few years is that the politicians who are doing the bidding of the wealthy are now just as focused on fighting government spending as they are on resisting tax increases.

The Tea Party movement, after all, has given us needed clarity, exposing the fact that the conservative agenda is not an effort to improve the balance of policies in some technocratic cost/benefit fashion. It is, instead, an existential battle against the notion of government itself. For people with progressive goals to give up on progressive taxation, based on the belief that we will have an easier time politically if we only push a “grow the government, but pay for it with non-progressive taxes” agenda, simply misreads the nature of the opposition.

Which raises the most important aspect of the fight for progressive taxation. It might seem that choosing between nonprogressive and progressive taxation is only a matter of deciding how to collect enough money to fund whatever amount of government spending that we choose to provide. The additional benefit of progressive taxation, however, is that it undermines the source of the political power of the rich, who are currently dead set against making American policies more progressive.

If we want to have a more progressive future, we have to understand that growing inequality at the top is self-reinforcing. Progressive spending will not change that. Progressive taxation will.

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.
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Ebola Quarantines, RFRA, and RLUIPA, and the Right to Infect? Thu, 30 Oct 2014 04:01:22 +0000 Continue reading →]]> QuarantineWith New Jersey Governor Chris Christie drawing a line in the sand on quarantining those entering the United States who have been exposed or potentially exposed to Ebola, and other states following suit in one way or another, it is not too early to consider the many issues likely to arise. My fellow columnist, Mike Dorf, has introduced and discussed some of the Ebola quarantine legal issues here, but I am going to take the Ebola discussion down a new path: religious liberty versus public health.

What Happened to the Common Good?

Let’s agree on one thing: Ebola is deadly, and it is accepted medical wisdom that anyone who has been exposed to Ebola will develop it in 21 days or not at all. In addition, a person may have been exposed but have no symptoms for a while, and then develop it within that 21-day window. Therefore, those who have been exposed need to monitor their temperature and health for that 21 days for two reasons. First, to get to medical treatment immediately if they do develop early symptoms. Second, to protect others from contracting the deadly virus.

So far, we have two nurses who have not set a perfect example. First, we had the nurse who treated the only Ebola patient in the United States to die from the disease, who had a low-grade fever and contacted the CDC for advice on whether to fly. They unfortunately advised her it was fine, and she flew on a commercial airplane before the 21-day period was up, only then to come down with Ebola. Her life was saved through the best treatment the United States has to offer, but her trip potentially exposed hundreds to the disease. The result was that an airline and the government had to endeavor to contact every possible person on her trip, and go to the length of quarantining her dog! Had she remained in her home until the 21 days had expired, it would have been far better for the public. Her experience should have been instructive for all.

But then there is the nurse who recently returned from West Africa and loudly chafed at being quarantined in New Jersey. After twenty-four hours and a negative Ebola test, she was transported by private car to her home in Maine for the remainder of the quarantine period. Now, she is again complaining and has declared that she is not going to abide by Maine’s quarantine order. In fact, she has declared that she is going to sue for her “freedom” if the order is not lifted by Thursday. Freedom for what? To potentially infect others?

She is the epitome, the walking billboard, of what is wrong in the United States: a sense of irrational entitlement among some to the exclusion of the greater good. When even a nurse forgets that a sick person with a communicable, deadly disease owes an obligation to others beyond herself, we are in trouble. She is just the tip of the iceberg of those who can and will chafe if quarantining is needed in the future.

The Extreme Religious Liberty Statutes and Public Health

In this era of extreme, statutory religious liberty, with the federal Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the state RFRAs, expect individuals who do not believe in medical science or reject medical care as part of their religious faith to hang their objections to a quarantine law on these statutes.

The Supreme Court interpreted the federal RFRA in Burwell v. Hobby Lobby in a way that was shockingly deferential to the for-profit Hobby Lobby corporation, but it also seemed to indicate that the case was a one-shot-deal. We shall see if its reasoning translates into rights of believers to avoid being quarantined, and in particular quarantined in a hospital setting, but the very existence of these statutes raises problems for public health.

How RFRA and RLUIPA Could Hamper Efforts to Protect Against an Ebola (or Any Other Infectious Disease) Epidemic

Let’s say hypothetically that someone who is later found to have contracted Ebola is one of our citizens who does not believe in medical care, whether because she is a Christian Scientist, a Follower of Christ, or a member of the Church of the Unborn, or one of a number of other groups. If the law is that the infected person must be in isolation, under medical treatment, and in a hospital, she will object. Indeed, if she is required to conform her behavior in any way based on medical science, she will likely have an objection.

Under the First Amendment and the leading case, Employment Div. v. Smith, the believer would have no way of fighting a quarantine order that is meutral and generally applicable, which means that the believer would have no special privilege to avoid the law that applies equally to everyone else. That would be good news for the public. But with RFRA, RLUIPA, and the state RFRAs, believers can grasp tools to avoid even generally applicable laws and put others at risk.

If the federal government imposes a quarantine law, the federal RFRA would be the believer’s weapon of choice. If a state does, RLUIPA would be, because it applies to all state institutions (from hospitals to prisons). If there is also a state RFRA (assuming one is in one of the 20 states that have a state RFRA, as I discussed here), the believer has two bites of the extreme liberty apple against state law.

None of these extreme laws contain exemptions for public health and they all require that the government justify a law imposing a substantial burden on a religious believer with a “compelling interest” in the “least restrictive means.” As usual, it is this last requirement of a “least restrictive means” that can do the most mischief.

Under the modus operandi of these statutes, the courts are drawn in on a case-by-case basis to adjudicate whether a particular law can be applied to this particular believer.

A person who rejects medical science and medical care will have little trouble, at least under the Hobby Lobby reasoning, proving that a quarantine is a “substantial burden” on their religious conduct. Then the burden shifts to the government.

The first element for the government seems to me to be a no-brainer: Who can dispute that protecting Americans from a deadly disease does not serve a compelling interest? But what, exactly, is the least restrictive means in each case involving a quarantine and a believer who rejects medical science and/or care? Now the fun begins, because the believer and the judge get to play “trump that lawmaker.”

Let’s say we have a regime, wherein someone exposed to Ebola develops symptoms and is required by law to be taken to a hospital and placed in isolation. At this point, there are only a few hospitals in the country that can handle dealing with an active Ebola infection. Isolation is critical to stop the spread. Furthermore, the infected patient may not be released until she is Ebola-free, which requires intense medical treatment, including aggressive rehydration and often blood and plasma transfusions from an Ebola survivor. Even if she refuses treatment, thereby choosing death, she still must be isolated and cared for by those in the medical profession who are the only ones who know how to contain the active infection.

What is the least restrictive means of dealing with this situation? Well, according to the nurse who just “escaped” from New Jersey’s quarantine and headed to Maine, where her state, town, and neighbors were none too pleased to welcome her, it is to go home and monitor oneself. We see how hard that is to enforce with someone who objects on arbitrary grounds, as opposed to sincere religious belief.

In the case of the faith healer, if being quarantined at home is the “least restrictive means” what assurance would anyone have that the person would stay at home and not infect others? Or that the person would not infect the children in the home if the disease develops? The faith healer doesn’t believe in medical science or care and typically believes that obtaining treatment will destroy her spiritual future. If she does not abide by the quarantine, others’ lives are at stake.

The solution here is that the RFRAs and RLUIPA have no place in the context of any state or national health emergency. They should be repealed, as I have said before, but at the very least this is the moment when we have all received notice that every extreme religious liberty statute needs a public health exception at the very least, so that decisive and quick action can be taken to protect everyone. And so that we can avoid wasting precious time and public and judicial resources.

Finally, please do not buy the sanguine arguments from the RFRA and RLUIPA supporters who will calmly assert that these statutes won’t have any effect in such an environment. They will argue, no doubt: “Don’t worry, because this is so obviously important, there is a compelling interest.” What they will omit is their explanation of what each judge in each case for each believer will determine to be “the least restrictive means.” That is inherently unpredictable. The RFRA of 2000 was sold on the theory that it would not hinder federal civil rights. The Hobby Lobby decision proved it can and will.

Here is basic common sense: RFRA, RLUIPA, and the state RFRAs each need a public health exception.

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
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Making Sense of “Yes Means Yes” Wed, 29 Oct 2014 04:01:25 +0000 Continue reading →]]> College DormIn September of this year, California Governor Jerry Brown signed into law a bill that changed the meaning of sexual consent for undergraduate campuses whose students may receive financial assistance from the State of California. The law includes a variety of important provisions, but for purposes of this column, I will focus on one: the law defines rape by the absence of an affirmative indication of consent from the alleged victim (rather than by the presence of either verbal or physical indicators of non-consent). In this column, I will discuss this aspect of the new law and evaluate some of the arguments that have been offered in opposition to it.

Why Change the Law?

In May of this year, the U.S. Department of Education’s Office for Civil Rights (“OCR”) released a memo listing fifty higher education institutions with open Title IX sexual violence investigations. This means that these schools’ responses to sexual abuse and violence on campus have come under suspicion and might well be actionably inadequate. The institutions included both Harvard College and Harvard Law School, a proper source of embarrassment for those of us who matriculated at either institution.

Title IX of the Educational Amendments Act of 1972 is the federal law prohibiting sex discrimination in educational institutions. One form of sex discrimination is institutional indifference or inability to respond properly to sexual assault on campus. Accordingly, the apparent failure of so many colleges to effectively prevent or otherwise address the large number of sexual assaults that take place on college campuses indicates a problem, one that might perhaps be amenable to resolution through changes to campus codes of conduct.

The California law passed earlier this year represents one response to this disturbing state of affairs in which institutions of higher learning have evidently been either unable or unwilling to protect the sexual safety of their students. To the extent that women (disproportionately the victims of sexual assault outside of the prison context) cannot safely navigate their college careers without fear of sexual assault and other sexual misconduct, their experience of education cannot be accurately characterized as equal to that of men. Changes in campus codes, required by the California law and urged by the OCR, then, result from a salutary impulse to improve the lives of the women and men who may be vulnerable to sexual predation.

Yes Means Yes: What Does It Mean?

In one sense, it might seem an unimportant matter of semantics whether a code says that “no means no” or that “yes means yes.” In “Take Back the Night” marches against acquaintance rape that took place when I attended college, the chant was, “However we dress, wherever we go, yes means yes and no means no.” So if both of those things are true, why should it make a difference whether a campus code defines rape in terms of the absence of “yes” or the presence of “no”?

One answer is that “yes means yes” provides a default setting of “no.” That is, if a man and a woman are alone in private, the “yes means yes” approach provides that if the woman sits silently and does not affirmatively indicate, by either her words or her conduct, that she is interested in having sex with the man, then the man is prohibited from engaging in sexual conduct with the woman (or, perhaps more accurately, upon the woman, since she is by hypothesis not participating). I say “the man” and “the woman” here because this is the most common scenario in which allegations of sexual assault arise, but the same holds true for situations involving two males, two females, or a man and a woman where the silent and inactive member of the couple is the man. It also applies to groups of more than two people.

Okay, readers might say, the default setting is “no.” But why does a default setting of “no” matter? As then-Professor and now-Dean Michelle J. Anderson very ably explained in her 2005 article, Negotiating Sex, a woman who has previously been traumatized or who feels like her will is irrelevant to her partner will sometimes freeze with fear and find herself unable to say “no” or otherwise to actively resist what is happening. Though we speak colloquially of a “fight or flight” response to threats, a third alternative in the emergency repertoire of humans and other animals is “freeze.” If a woman finds herself in this situation, then a “no means no” legal standard fails to do what she needs—to demand that her partner refrain from touching her and check in to make sure she is comfortable with his advances. If she stares blankly into space or says nothing at all in response to his inquiries, then the right thing—the non-rape thing—for him to do is to leave her alone.

Even if the woman is, moreover, capable of saying “no” or of indicating her lack of interest through physical or other nonverbal resistance, a “yes means yes” standard effectively conveys to her would-be partner that she should not have to resist, that engaging in sexual relations is something that individuals in couples choose to do with each other, not something that sexually aroused individuals get to do to other, unmoving, individuals, so long as the former encounter no active resistance from the latter. The “yes means yes” approach says something affirmative about what sex between consenting adults is really about—it is an interaction between two (or more) people, absent some express, mutually-agreed-upon departure from this model.

By contrast, the “no means no” approach effectively conveys the message that when two people are in each other’s company voluntarily and in a potentially romantic context (such as a date), one of those people may simply presume the sexual consent of the other, so long as the other does not actively rebut that presumption through words or conduct. If a woman is staring into space or simply looking at her date, for example, the date—under a “no means no” approach—can undress the woman and insert either a finger or his penis into her vagina—without ever receiving any sort of invitation or indication of desire from her. Simply going out on a date with him hands over the keys to her own sovereignty over her bodily integrity unless and until she says, “Stop” or “No, I don’t want to do this.”

The message that passivity is consent not only reflects a stereotype about the active and passive roles of men and women in sex; it may prescriptively encourage men to think about passivity as an invitation and to avoid talking with their partners to make sure everyone is on board with what is happening.

In a “no means no” world, then, the “no trespass” sign that ordinarily accompanies every person navigating the world is removed from people who are on a date and alone with a partner, and the woman (or the more vulnerable member of the couple, who may or may not be a woman) is now “open for business.” This presumption conforms disturbingly to the idea that rather than having the question of rape revolve around whether she does or does not consent to sex, a woman who wants to avoid being subject to unwanted sex must carefully plan where she goes, how she dresses, and with whom she spends her time, not just as a practical matter but as a matter of law. It should not, however, be the case that in potentially sexual situations, the job of the less active member of a couple is to proactively stop the other member of the couple from imposing himself upon her sexually.

The requirement that sexual partners obtain “consent” quite logically requires that something affirmative be obtained. The absence of complaint—particularly in a world where many people are traumatized and feel unable to assert their interests when they collide with someone’s else’s desires—is not consent. It is just nothing, and nothing alone does not justify sexual intercourse.

Avoiding Rape Versus Proving Rape

One common critique of the “yes means yes” standard is that if a victim must say yes or otherwise affirmatively indicate an interest in having (or a willingness to have) sex before sex take place, then this will mean that the burden of proof in a rape case effectively shifts from the person complaining of a crime to the person defending himself against an accusation. As one example, Florida International University Professor Emeritus Gordon Finley, an advisor to the National Coalition for Men, claims that under a “yes means yes” approach, “it is virtually impossible to ‘prove’ affirmative consent for a man.” He continues that “[m]en are presumed guilty and have to prove their innocence . . . as opposed to the criminal justice system in which men and women are presumed innocent and must be proven guilty.”

Finley’s suggestion, which I have heard from others as well, is mistaken for a variety of reasons.

First, the definition of an offense has nothing to do with the burden of proof. The definition simply tells everyone (including potential perpetrators and potential victims) what the law requires in order for a sexual encounter to be called “consensual” and, on the contrary, what it requires in order for the encounter to be classified as a rape or sexual assault. If the campus code places the burden of proof on the accuser, then the burden remains on the accuser, regardless of how the misconduct is substantively defined.

Under a “yes means yes” framework, then, where the burden of proof is on the accuser, the accuser must persuade the fact-finder by whatever standard of proof (whether “beyond a reasonable doubt,” “clear and convincing evidence,” or a “preponderance of the evidence”) that the events in question happened in the way that she says they happened and that, specifically, the accused engaged in sexual conduct with the accuser in the absence of either verbal or behavioral indications of interest in having sex. If the factfinder thinks there is a 50-50 chance that the complaining witness said “yes,” for example, and a 50-50 chance that she said “no,” then the factfinder will find for the accused, given that the burden is on the accuser. The definition of rape thus leaves in place the perpetrator’s presumption of innocence.

Second, in order to obtain a finding of guilt, given that the burden of proof is on the accuser, it will likely be necessary for the complaining witness to provide testimony. That is, she cannot just sit back and say nothing, as could a party whose opponent bears the burden of proof, because she must convince the trier of fact that things happened in the way that she claims they did. Once she testifies, of course, there is some pressure on the defense to offer a counter-narrative, but that is hardly unique to the sexual assault context—once the prosecution has presented its evidence of the defendant’s guilt, the defense will always feel some pressure to offer evidence pointing in the other direction.

An accuser’s testimony that the accused engaged in sexual intercourse (or some other sexual interaction with her body) without any affirmative consent, whether verbal or nonverbal, from her, is itself evidence. It is evidence of the perpetrator’s guilt on the basis of which a factfinder may and ought to be able to conclude that the things she described did indeed occur. Again, in all criminal cases, juries are empowered to find a defendant guilty on the basis of eye-witness testimony by a victim, and we do not ordinarily characterize this fact as either unjust or as shifting the burden of proof to the defense.

Critics of acquaintance rape prosecutions more generally (as well as of the more demanding “yes means yes” approach to consent) frequently speak of a woman’s testimony in an acquaintance rape context as somehow inherently unworthy of belief or as “less than” the sort of evidence that usually generates fact-findings in a court of law. Critics use the expressions “swearing contest” and “he said/she said” to manifest their skepticism about how a fact-finder could possibly draw the conclusion that a rape really happened on the basis of mere testimony from a victim that it did, opposed by testimony from an accused perpetrator that it did not.

If we look closely at the motives in place as well as at the typical resolution of disputes in court, however, we can see that this “swearing contest”/”he said/she said” talk represents a thinly veiled expression of sexism that harks back to misogynistic ideas about women from centuries past. When a woman testifies that a man had sex with her without her consent (whether that lack of consent takes the form of a vocal “no,” or of silence in a “yes means yes” regime), she has given the factfinder evidence of a crime that, unlike other crimes, is likely to cause shame and embarrassment to the victim reporting the offense. As a general matter, then, there is no positive benefit—and much detriment—that comes to a woman from testifying that a man has raped her. Lying about rape is thus a bizarre and peculiar thing to do, and there is no structural reason to expect such lies to be uttered on a regular basis in court.

For a man who stands accused, by contrast, there is plenty of reason for him to say he did nothing wrong, regardless of what the truth might be. That is, like all criminal defendants, the accused in a rape case has a powerful motive to claim that he is innocent. This motive is—in most criminal cases—so well understood by juries that according to a study published by R. L. Wissler and M. J. Saks back in 1985, juries do not consider a defendant’s prior conviction for perjury especially informative in assessing his credibility. According to the study, the jury generally regards the credibility of a criminal defendant—structurally driven to say “I am innocent” no matter what happened—as so much lower than that of other witnesses in a criminal case that proof of his character for veracity has little to offer in terms of exposing the truth about his testimony.

In short, if we want to call the dispute between a rape complainant and a defendant denying the accusation a “swearing contest,” it is—all things being equal—a properly one-sided contest between a woman who has no structural reason to lie, and a man who has every reason to say “not guilty” about himself, irrespective of what really happened.

Yet I routinely run into otherwise sensible people who cannot seem to accept that a woman’s testimony that she was raped is strong prima facie evidence that she was in fact raped. They similarly cannot appreciate the fact that a man’s testimony that he committed no rape is weak evidence of his innocence. People do sometimes falsely accuse people of rape, just as people sometimes falsely accuse people of other things, but there is no reason—other than rank sexism—to systematically distrust rape accusations or to assume that the accuser and the accused in an acquaintance rape case are equally likely to be lying.

In most cases, testimony is a crucial part of determining what occurred in a contested case and whether what occurred did or did not violate the law; a sudden skepticism about testimony in the context of rape is therefore unwarranted.

The “yes means yes” law, moreover, has a second aim. It is not solely a tool for determining what happened once there has already been a rape accusation. It has another important function that has been largely ignored by critics of the new law. That function is to teach college students what it means to have a consensual sexual relationship with another individual.

When one individual is interested in having sex with another, the law tells the former that the desire to have sex is not enough of a reason to go ahead and touch another individual. There is another person whose autonomy, interests, and wishes must also be taken into account, and the best way to do that is to look for affirmative indications of sexual interest (or ask a question) rather than simply viewing the other person as an obstacle course to be overcome. It may be the case that some women who would not have even known to call what happened to them “rape” will, when asked, “is it okay if I go ahead?,” say “actually, it isn’t.” The California law and the campus codes that it requires, if followed by people embarking on sexual experiences, will accordingly give women (and men) the space in which to say when they are truly interested in a sexual engagement and to safely withdraw into their own thoughts when they are not interested but prefer to avoid being confrontational with someone who appears committed to his sexual objectives.

“Yes means yes,” if taken to heart by the men and women on college campuses, will lead people to take responsibility for checking in with a partner rather than surrendering themselves to what they may believe without any evidence to be a mutually desirable sexual encounter. People tend to be motivated to draw conclusions that allow them to do what they already wanted to do, a motivation that could easily lead an aroused person to imagine that the stillness and silence of a partner somehow evidence a desire to have sex. “Yes means yes” represents a positive intervention in the bedroom (or dorm room), one that informs initiators of sexual interaction that there is someone else in the room with them who must affirmatively consent before permissible sex can happen. Perhaps, if things go well, we will see fewer after-the-fact complaints, because couples will be led to have actual conversations about what each person wants before it is too late.

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.
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Misnomers: The Law and Practice of Child Naming Tue, 28 Oct 2014 04:01:35 +0000 Continue reading →]]> Child NameWhat standard should be applied when unwed parents disagree about whether to change a child’s surname? In a recent ruling, Connor H. v. Blake G., the Nebraska Supreme Court held that a five-year-old boy should keep his original surname, his mother’s name at the time of his birth, rather than assuming the surname she later took upon marrying another man or switching to his biological father’s surname. A surname can be changed, this court held, only if doing so is in the child’s best interests, with no special deference to the wishes of the custodial parent. A child is an individual, and the decision whether he should keep or change his surname must be individualized as well. This case is one of many revealing tensions over naming that are aggravated by unwed parenting, divorce, and remarriage.

Connor’s Story

Connor H. was born in 2008 to unmarried parents, Amanda H. and Blake G., who had already ended their relationship with each other. With the consent and signature of both parents, Connor’s birth certificate indicated that he would use his mother’s surname. She has been his custodial parent since birth, and when she remarried, and changed her own surname, she sought to change Connor’s as well—to that of his stepfather and, now, his mother. His biological father objected and, in a separate proceeding requesting a modification of the custody and visitation order, requested that Connor’s surname be changed to his surname. (Because this is a proceeding involving a minor, the court uses only initials for surnames, further confused by the fact that the biological father and the stepfather have surnames beginning with the same letter, G.)

His mother argued that it would be in the child’s interest to take her new surname, since not only would the two of them share the name, but it was also the name of the stepfather and half-sister with whom the child lived. She testified that he “would feel more part of the family and feel like he belongs if he could have the same last name as everybody that he lives with.” Amanda also testified that Connor had a loving relationship with his stepfather and with his step-grandparents, who live nearby.

Connor’s father, on the other hand, thought it preferable for the child to have the surname of his biological father rather than his stepfather (even though his mother had been using that name for three years now as well). Although Connor has always lived with his mother, he has maintained a good relationship with his father, who took advantage of his visitation rights. (The father had been in arrears on child support, but had caught up by the time of the trial over Connor’s surname.) Blake was involved with Connor’s school activities, and sports facilitated a relationship between Connor and his paternal relatives. Both parents were involved with his medical care as he was treated at age four for leukemia.

The Court Rulings: Traditionalism and Its Antidote

After the parties presented evidence for their competing name change requests, the trial judge ruled in favor of the father. He rejected Amanda’s request because, in his words, giving the child his stepfather’s name was “like a de facto adoption,” which “would just simply be wrong.” Given that the biological father had kept contact with the child and developed a good relationship, there was no justification in the court’s view “to be changing the name to a stepfather’s name.” That the name is now shared by Connor’s mother was deemed irrelevant. Her name was her husband’s name, and her husband had no claim to the child.

The trial judge was more sympathetic to the biological father’s claim. Admitting that he might be making an “old fashioned statement,” the judge concluded that it was in the child’s best interest to take his father’s surname.

Amanda appealed. The state’s highest court did not side with her – but neither did it side with Blake. It ruled, instead, that neither party had presented sufficient evidence to justify changing the child’s surname.

First, the court noted that there is no automatic preference for the surname of a child born in wedlock and concluded that there should be none for a child born out of wedlock. Neither mothers nor fathers have a superior right to choose a child’s surname. To the extent the trial judge was overtly or covertly giving superior preference to the father’s naming rights, it was wrong to do so.

Second, the custodial parent does not have an absolute right to choose the child’s name. In addition to having physical custody of Connor since birth, Amanda also has sole legal custody—the right to make decisions in his life about health, education, religion, and so on. She contended that naming a child is one of those fundamental decisions over which she had been giving exclusive control. Several states have adopted at least a strong presumption that the surname chosen by a custodial parent is in the child’s best interests. But courts in other states have refused, concluding only that decision-making power of a custodial parent is one factor to be taken into account. The Nebraska court in Connor’s case refused to adopt such a presumption on the theory that the child’s best interests in any individual case may be served by deviating from the surname chosen by the custodial parent.

Third, having rejected the two presumptions sometimes relied on in other jurisdictions, the court concluded that the decision whether to change a child’s surname must be evaluated based solely on the best interests of the child. The court articulated a non-exhaustive list of ten factors.

These factors are (1) misconduct by one of the child’s parents; (2) a parent’s failure to support the child; (3) parental failure to maintain contact with the child; (4) the length of time that a surname has been used for or by the child; (5) whether the child’s surname is different from the surname of the child’s custodial parent; (6) a child’s reasonable preference for one of the surnames; (7) the effect of the change of the child’s surname on the preservation and development of the child’s relationship with each parent; (8) the degree of community respect associated with the child’s present surname and the proposed surname; (9) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and (10) the identification of the child as a part of a family unit.

For Connor, application of these factors, in the court’s opinion, did not support either parent’s name-change request. Neither parent had forfeited the right to have a preference into the child’s name, and neither parent’s relationship, in the court’s view, would be threatened by having a different name from the child. Connor had formed a good relationship with his stepfather and half sister despite having a different surname from everyone else in the household. That he had a different surname from his custodial parent, Amanda, was the only factor in favor of changing his surname. (She could, of course, have avoided this problem in the first instance by keeping her birth name and given it to her daughter as well, rather than conforming to two sexist traditions—women’s name changing upon marriage and the practice of giving children their father’s name.) But, the court concluded, that one factor was insufficient to justify changing it at all.

The court was “not unmindful that declining to change Connor’s surname leaves him with a surname different from the surnames of both of his parents.” This might, as a dissenting judge had noted in a previous case, cause the child to be “questioned in the future as to why he does not carry the last name of either his mother or his father.” Having the same surname as others within a family unit, that same judge observed, “provides security, stability, and a feeling of identity and limits the potential difficulties, confusion, and embarrassment that may arise relating to the paternity of the child.” However, the court in Connor H., concluded, the significance of surnames will vary by child, and thus the question should be resolved through a fact-intensive inquiry about the needs and interests of a specific child. For Connor, his interests are best served by keeping the surname he was given at birth.

The Traditions and Complications of Child Naming

Disputes over child surnames have increased along with divorce, unwed parenting (from a small percentage of children a few decades ago to over forty percent today), and more commitment to egalitarian ideals. Like many aspects of family law, the law was simpler when families and cultural values were more monolithic.

In the U.S., the tradition of patronymy—the practice of giving children the surname of their fathers—was and is entrenched. But the tradition is neither universal, nor ancient in origin. (A few countries, such as Spain, follow a matronymic tradition.) Prior to the sixteenth century in England, for example, surnames did not descend by inheritance at all. Instead, an individual adopted his surname voluntarily, or his neighbors conferred it upon him. Surnames were often descriptive. (A skilled laborer might be known as “Goldsmith”; John’s son might be known as “Johnson.”) In small towns, where everyone knew everyone else, surnames were not particularly important anyway. But as population increased, and the need to distinguish between individuals with the same first name increased, surnames became more important.

Eventually, patronymics emerged. They were a natural outgrowth of other rules dictating men as the head of families. But even as those rules subsided—or were invalidated by courts in the name of constitutional sex equality—the rule of patronymy remains dominant in the United States—at least for children born in wedlock. The tradition for nonmarital children is the opposite—they are usually given their mother’s surname. (Connor was thus named consistently with this latter tradition—he was given the surname of his unmarried mother.)

Prior to 1970, many states, by statute or common law, dictated that fathers had a right to have their children bear their surnames. As a result, fathers could insist that the child’s birth certificate reflect that surname. Moreover, if the mother tried to change the surname—post-divorce, for example—she was usually unsuccessful, unless there was evidence that the father had forfeited the right. But after the Supreme Court began to recognize a constitutional right to sex equality, rooted in the Equal Protection Clause, these rules were mostly invalid. Courts slowly struck down laws giving fathers the absolute right to name their children. These laws were replaced, by statute or judicial decision, with ostensibly gender-neutral standards. The social traditions that underlay them, however, remained strong.

In the modern era, states follow different approaches to child name change petitions. The first of three common approaches favors the status quo—that is, the original name. A parent petitioning to change a child’s surname will prevail only if he or she can show that it would be detrimental to the child to keep his or her original name.

A second common approach: It gives little weight to the status quo. Instead, it gives the custodial parent the right to choose the child’s surname, including the right to adopt a new one. Only a showing that the change to a particular name will be detrimental to the child can limit the exercise of this right. The Connor H. court, as discussed above, expressly rejected this approach.

Finally, a third approach adopts the generic standard applicable to most disputes involving children—the “best interests of the child.” Under this approach, a court does not start with any presumption favoring, or disfavoring, the status quo. Instead, it evaluates the name change petition against a list of factors the prior decisions have deemed relevant. The Connor H. court opted for this approach. By placing the burden of proof squarely on the party seeking a change of name (in this case, both parents), the court invited an open-ended inquiry into the interests of this particular child.

While this last approach appears sex neutral, there is hidden gender bias in each standard. Initially, a child of married parents is almost always given his father’s surname. That means the first approach—the presumption that the status quo should continue—obviously favors fathers. A child of unmarried parents is often given his mother’s surname, and a rule favoring the status quo reinforces the social norm that unwed fathers are not full fathers—either in terms of rights or obligations.

The second approach—the presumption toward the custodial parent’s naming—might seem to actually favor mothers. After all, mothers are still more likely to be custodial parents. Unfortunately, however, despite the custodial parent presumption, a sexist court can still deny a mother’s name change if the judge feels it is detrimental to the child not to carry the father’s surname. (The trial court in this case showed evidence of such thinking.)

Even the best interests of the child standard can be vulnerable to sexist ideals. Multi-factored tests rely heavily on judicial discretion, which family law lawyers know all too well can be infused with gender or other types of biases. The Connor H. court was careful, however, to avoid indulging such biases. Its ruling demonstrates the best use of the best interests standard in this context—to invite a full and fair inquiry into what the child needs rather than what the parents want.


The Nebraska ruling, which I think is correct, suggests that we may be moving beyond some of the traditional assumptions and traps of child naming. But all of the common approaches—including the one used in the Connor H. case—infuse the choice of a child’s name with too much meaning.

The Connor H. court observed that “Blake was able to build a strong relationship with Connor despite their different surnames.” The silent premise of this statement is an assumption that different names might interfere with the development of an appropriate father-son relationship. But there’s simply no reason to think that is the case. Mothers who retain their birth names upon marriage often have children with different surnames, but there’s no suggestion that those relationships are threatened because of naming disparities. As a society, we should break out of the patronymic tradition and give equal regard to the names of men and women. The more variation in marital and child naming, the fewer questions that naming disparities would raise.

Perhaps more importantly, we should stop assuming that names will dictate the substance or strength of a parent–child bond. Children are not property that comes with a certificate of title, and there are myriad ways to make clear that one is a parent without sharing a surname. And while anecdote is no substitute for scientific data, I can say as the mother of three children with alternating last names (the first and third have mine; the second has my husband’s), the most serious challenge we have encountered as a family is in claiming sibling discounts for sports and camps. The different last names raise at least an eyebrow by the person reading those applications. The playground gossip about the dead husband I must have had at some point, which might explain our naming oddities, is just an entertaining bonus.

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.
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Whether and Why Delegations of Government Power to Private Actors Are Problematic: The Court May Take Up the Nondelegation Doctrine in DOT v. Association of American Railroads Fri, 24 Oct 2014 04:01:25 +0000 Continue reading →]]> AmtrakAmong the interesting U.S. Supreme Court cases this fall is U.S. Department of Transportation v. Association of American Railroads, to be argued in about a month, involving the so-called “nondelegation” doctrine—the idea that Congress cannot lawfully delegate or cede legislative powers to other institutions or actors. If the Court ends up relying on some form of a nondelegation principle in striking down the federal statute at issue, the case would break important new ground.

Background on the Nondelegation Concept

The nondelegation idea gets fought over most often in the context of statutes that confers very broad—arguably overly broad—power to the executive branch. As I and other scholars have written, under the Necessary and Proper Clause of the Constitution, each constitutionally granted congressional power “implies a power to create authority under it sufficient to effect its purposes.” But for over 150 years, the Court’s decisions have been sprinkled with categorical statements that Congress may not relinquish any of its powers to enact legislation through grants to federal administrators. The first Justice Harlan’s statement of this nondelegation doctrine in Field v. Clark is typical: “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”

The Supreme Court has twice struck down federal legislation as having improperly delegated legislative power to the President, but both of these cases are more than 70 years old, and came from a Court that was known for its systematically ungenerous attitude towards congressional legislation. Since 1935, the Court has not invalidated a single congressional delegation of legislative authority to an administrative agency or the President, even though many grants of authority that have been upheld are arguably broader than those struck down in 1935. In 1974, when Justice William Douglas’s majority opinion in one case construed the fee-setting authority of a federal agency narrowly so as to avoid nondelegation problems, Justice Thurgood Marshall wrote:

The notion that the Constitution confines the power of Congress to delegate authority to administrative agencies, which was briefly in vogue in the 1930’s, has been virtually abandoned by the Court for all practical purposes . . . The doctrine is surely as moribund as the substantive due process approach of the same era—for which the Court is fond of writing an obituary—if not more so.

The explanation for this judicial hesitance to intervene is easy to see: almost all laws create some significant enforcement discretion in the executive branch, and drawing a principled line between allowable standard-guided authorizations of executive power, on the one hand, and impermissible standardless delegations to the executive branch, on the other, is well-nigh impossible for courts to do. As a result, the Court simply said that Congress must lay down some “intelligible principle” by which the executive branch can determine how to enforce a law, and it has found every law that has come before it to have at least one such “intelligible principle.”

The Railroad Case Currently Before the Court

The case pending before the Justices involves a related, but arguably distinct, kind of nondelegation problem: delegation of lawmaking power by Congress to a private actor. Although the facts of the case are complex, in basic terms the statute under challenge works as follows: The Federal Railroad Administration (FRA), a federal agency that regulates railroads, is directed to work with Amtrak—a complicated hybrid entity that partakes of some private characteristics and some public features—to come up with some performance standards for Amtrak. If Amtrak falls too far short of meeting these standards, another federal agency is directed to investigate whether other railroads—whose rail lines are used by Amtrak—are not giving Amtrak sufficient access to the railways to permit Amtrak to perform better. So far, so good. The potential problem? If the FRA and Amtrak can’t agree on performance standards to be adopted, the FRA doesn’t have the power to override Amtrak’s resistance. Amtrak, in effect, has at least a temporary veto over the FRA’s proposals. In cases of such impasse, the FRA is limited to submitting the matter to an arbitrator, who then gets to decide which standards to adopt. And the statute by its terms doesn’t make clear whether the arbitrator must be a public official or institution, as opposed to a private actor.

Based on this statutory scheme, non-Amtrak railroads brought a challenge alleging that the statute gives private-sector entities (Amtrak and the arbitrator) a right to veto and determine the content of regulation of the railroad industry, including regulation of Amtrak’s competitors. Conferral of this power, the challengers argued, constitutes an impermissible delegation of federal lawmaking powers to private parties. The U.S. Court of Appeals for the D.C. Circuit agreed, calling the statute “legislative delegation in it most obnoxious form,” and observing that delegations to private actors create difficulties that “are even more prevalent” than those raised by delegations to the executive branch. Indeed, the D.C. Circuit observed that “even an intelligible principle cannot rescue a statute empowering private parties to wield regulatory authority.”

Resolving the Case Without Breaking New Nondelegation Ground

The Court may (indeed should) be able to dispose of this case without engaging a fundamental inquiry into the nondelegation doctrine as it applies to private actors. The Court could easily find Amtrak to be a public entity, in which case, at worst, the statute confers power in multiple federal executive agencies rather than to private entities, and (under the intelligible principle idea) the government would win.

The Court could also reasonably hold that the performance standards at issue here do not constitute lawmaking or regulation in any meaningful sense, since they are used—at most—to initiate investigations into whether non-Amtrak railroads have been violating federal law; the performance standards do not themselves apply to any other railroads. And quite often federal investigation of wrongdoing is triggered by private actors, so Amtrak’s role in devising standards that are used to help decide whether investigation of potential illegality is warranted should be unproblematic.

Or the Court might hold the outside arbitrator who resolves disputes between Amtrak and the FRA must be another federal governmental entity, such that private actors (even if Amtrak is deemed a private entity) do not in fact control or have a veto over the formulation of the standards. And many earlier cases make clear that mere involvement or input by private parties in the regulatory process does not, absent a private-party veto over proposed regulation, create delegation problems. Indeed, if the Court thinks a nondelegation problem were otherwise created by Amtrak’s role in the standard-setting process, and that the inclusion of a government arbitrator as a tiebreaker between Amtrak and the FRA would solve the problem, the Court would almost have to read the (ambiguous) statutory references to the arbitrator to mean government arbitrator, because the Court is ordinarily supposed to read ambiguous statutes so as to avoid, rather than create, constitutional questions.

But should the Court, for one reason or another, reach the core of the nondelegation claim, it will have to decide whether the D.C. Circuit is correct that alleged delegations to private parties cannot be cured by intelligible principles, and that such delegations constitute the most serious offense to the nondelegation norm. On these big questions, I am not at all sure the D.C. Circuit got it completely right. To see why, we must first look at where the nondelegation doctrine comes from. (Interested readers can consult earlier and more elaborate work I’ve published in the Vanderbilt Law Review, on which some of the ideas explained below are built.)

Background on the Nondelegation Idea Itself

The nondelegation doctrine is said to have both textual and theoretical underpinnings. Textually, Article I, Section 1 of the Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (emphasis added). The theoretical justifications of the nondelegation doctrine stem from, as Professor Laurence Tribe has observed, “implicit constitutional requirements of consensual government under law.” As Tribe has explained, American political theory finds legitimacy of government in the “supposed consent of the governed.” This notion of consent presupposes the possibility of tracing governmental exercise of power to a choice made by a “representative” branch that is “politically and legally responsible” to the People. Thus, the valid exercise of a congressionally created power depends upon the prior “adoption of a declared policy by Congress and its definition of the circumstances in which its command is to be effective . . . .”

Both the textual and theoretical justifications for a nondelegation principle are open to question. First, it is not clear why the term “vested” in Article I means nondelegable. After all, Article II provides that “[t]he executive Power shall be vested in a President of the United States of America,” yet no one doubts that the President may transfer executive authority to his underlings in the Executive Branch. Moving from text to theory, why does the “traceability” requirement foreclose delegation? Why can’t we “trace” congressional delegations to the President back to Congress and hold it accountable accordingly? After all, as I just observed, the President delegates executive authority to unelected underlings, and yet we seem to believe that his accountability suffices under American democratic theory. Nor did “accountability” prohibit the People of the United States from delegating some of their sovereign power of self-determination to the federal government by ratifying the Constitution. The fact that the People have given temporary authority to federal institutions to govern on their behalf does not, under American democratic theory, mean that sovereignty has been “divested” from the People and permissibly delegated to the government.

Some might respond to my analogies by pointing out that the People are free to reclaim the power they have given to federal institutions through constitutional amendment, and that the President is free to reclaim authority he has given to his underlings at will. This is all true enough, but it suggests that delegations of power are not problematic per se, but that what might be driving at least part of the nondelegation concern is the ability (or inability) to reclaim power once delegated. This possibility is supported by seminal work done at the beginning of last century by Professors Patrick W. Duff and Horace E. Whiteside. These scholars attempted to uncover the origins of the Latin nondelegation maxim, “delegata potestas non potest delegari,” which most people understand to mean “delegated power may not be redelegated.” Their groundbreaking historical research established that the earliest forms of the common law agency nondelegation maxim—thought by many to explain much of the American constitutional nondelegation concern—were phrased somewhat differently: Delegated authority cannot “be so delegated, that the primary (or regulating) power does not remain with the King himself” (emphasis added). As Professors Duff and Whiteside conclude, the concern is that the “King’s power not be diminished by its delegation to others.” This reformulation focuses attention on one key aspect of the delegation problem: that delegation is more problematic when it is harder to reclaim.

This perspective would suggest that delegations to private actors are in some ways less problematic than delegations to the President. When Congress tries to reclaim delegations to the President, the President (who might be enjoying the delegation) can attempt to veto the proposed repeal law, requiring a supermajority of both houses to overcome. By contrast, if Congress doesn’t like the way Amtrak (if Amtrak be a private entity) is obstructing federal regulation, it can amend the statute to dilute or eliminate Amtrak’s involvement. And unlike the executive branch headed by the President, Amtrak (notwithstanding its political clout) cannot formally veto a subsequent reclamation attempt by Congress.

There are, of course, some ways in which delegations to private actors raise distinct constitutional problems that must be taken into account. Private actors (unlike the executive branch) have virtually no public accountability, and Congress may be too busy to address their misdeeds by repealing legislation. Moreover, and related, regulation in the hands of private actors often raises profound conflict-of-interest and anti-competition problems, with some market participants improperly empowered to make rules governing competitors. But these problems can be addressed without resort to the nondelegation problem; if private actors are wielding government power in ways that are unfair to other private actors, the Due Process and Equal Protection Clauses of the Constitution are the appropriate vehicles. Why might, say, due process be better than the nondelegation doctrine for these purposes?

One reason is that states have nondelegation doctrines that often mirror the federal approach. Indeed, state constitutions usually have the same kind of text (e.g., all legislative power is vested in a legislature and all executive power is vested in a governor) and theory as the federal Constitution, giving rise to doctrine substantially similar to federal law. When we think about application of nondelegation ideas at the state level, we see that due process review, which invokes an explicit balancing of interests, is the right kind of contextual approach to discern problematic delegations (such as giving General Motors a right to regulate car safety standards for its competitors, to use one of the D.C. Circuit’s examples) from unproblematic delegations (such as a minister being empowered to facilitate a civil marriage). (Indeed, even if the Amtrak case really does involve delegation to a private party, it is not clear to me that such a delegation raises major conflict-of-interest or anti-competition concerns – those questions would have to be looked at more carefully.) If we use an uncompromising nondelegation doctrine instead of due process, the system would lack the flexibility to distinguish true problems—where delegation creates harm to the interests of third-parties—from formalistic ones—where regulatory or implementation power may technically be performed by private actors, but in settings where such privatization does no real harm.

So I hope that, whatever the Court does in the Amtrak case, the Justices do not embrace an overly broad rejection of all delegations to private actors. And if the Court has problems with the empowerment of Amtrak, I hope the Justices explain how Amtrak’s involvement is unfair to other participants, and that they limit their holding to those kinds of situations.

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.
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Ben Bradlee, R.I.P. Wed, 22 Oct 2014 19:46:46 +0000 The Washington Post during the Nixon Administration and handled the Post’s coverage of the Pentagon Papers and Watergate. Continue reading →]]> WatergateOn October 21, 2014, Ben Bradlee, who had served as the top editor of The Washington Post during the Nixon Administration, died at age 93. It was not unexpected, for several weeks earlier his wife, Sally, had appeared on C-Span with Brian Lamb and explained that Bradlee had entered hospice care with severe dementia and was sleeping twenty hours a day and eating little. A few days before his passing, I learned from a friend who was close to Ben that the end was near.

Given Bradlee’s legendary standing in the journalistic community it is not surprising that there has been an outpouring of complimentary commentary on his fabled career, with all of it noting that much of his legend centered on his handling of the so-called Pentagon Papers and Watergate. I can add nothing to the reports on his World War II experiences in the South Pacific, his skills as a French speaking (with a Boston accent) foreign correspondent in post-war Paris, his friendship with Senator and later President John F. Kennedy, and his years at Newsweek where he convinced the publisher of The Washington Post to acquire the financially floundering magazine, which it did, with Bradlee receiving a finder’s fee in stock that would later make him a very wealthy man. But I do know a good bit about his journalistic coverage of Richard Nixon, so I might offer a few passing footnotes.

My Last Visit With Ben

Ben Bradlee served in top editorial positions at The Washington Post from 1968 to 1991, and was associated with The Washington Post Company until his death, for he remained vice president at large until that time. Over the years we became acquainted at events undertaking post-mortem panel discussions on either the Post’s handling of Pentagon Papers or Watergate—or both. Often before or after the formal session, Ben would have questions about Nixon and his White House, trying to better understand the man on whom he had made his journalistic bones, so to speak. Sometimes I could answer his questions, other times not. But it was always fun to engage with him for he went right to the heart of any issue.

On June 17, 2012, The Washington Post took note that forty years had passed since the arrests of five burglars dressed in business suits and wearing surgical gloves in the Watergate offices of the Democratic National Committee, with the Post publishing its first Watergate story the next day. For the 2012 occasion, the Post leased the entire top floor of the Watergate office complex (then being renovated) and invited several hundred of the Washington “Who’s Who” for cocktails, hors d’oeuvres, and panel discussions about the Post’s coverage of Watergate. (For the first nine months following the arrests at the DNC it had been only the Post that seriously covered the story, with other national news organizations largely ignoring it.) Ben made a brief on-stage appearance at the event, but said little. It was well known in Washington that he was suffering dementia, but at 90 years of age he still looked great and gave all smiles and waves to the several hundred invited guests at this Watergate fortieth reunion of sorts.

Following this gathering Ben and his wife Sally held a small dinner buffet for those who had participated at their home in Georgetown—a house that had once belonged to Robert Todd Lincoln, the son of President Abraham Lincoln, which had been refurbished by later owners, including Ben’s wife Sally. I looked forward to visiting with Ben, but given his smiles-and-waves only appearance at the Watergate event, I did not expect much of a conversation, if indeed he even would remember me. Because I was heading for teaching a continuing legal education class with my co-presenter, Jim Robenalt, Sally graciously had included him in this small gathering, as well as Jim’s wife Joanna, a longtime reporter/editor at the Cleveland Plain Dealer.

To my delight, our host that evening was the Ben Bradlee of old. After being introduced to Jim and his wife, he remembered and called them by name the entire evening, even flirting with the very attractive Joanna Connors Robenalt. (Jo thought he was flirting with all the ladies.) More strikingly he remembered a story I had told him about J. Edgar Hoover in a conversation we’d had a decade earlier at an American Bar Association conference in Palm Beach, Florida. (Hoover had told me that Post syndicated columnist and muckraker Jack Anderson regularly dug into his trash cans in the alley behind his home where every morning Hoover’s housekeep deposited dog waste from newspapers left out at night for them: “Mr. Dean,” Hoover had declared, “Jack Anderson will go lower than dog shit for a story.” Ben had liked that story and had not forgotten it, much to my amazement.

Watergate and Pentagon Papers Coverage

Our conversation that evening some two years ago did drift in and out of Watergate. I mentioned I was working on a book that would be based on Nixon’s secret tapes, which were filling in many gaps in my knowledge. Until that evening’s conversation I had not known Ben have covered the Nixon/Kennedy 1960 presidential race. He explained that was when he first took a hard look at Nixon, he thought Nixon had lost that race because he was “a bungler,” and while I cannot recall all Ben’s words, in essence, he was telling me that he did not find Nixon nearly as clever or sharp as his reputation. He thought that Nixon’s ham-fisted cover up of Watergate and the other abuses of power in which he was involved were merely more evidence of Nixon-the-bungler than Nixon-the-criminal. At the time I was not far enough along in my work on the book to know if Ben was correct or not. Today, I know he instinctively nailed it. This is the bottom line of what the Nixon tapes reveal: Nixon bungled away his presidency, as I report in The Nixon Defense: What He Knew and When He Knew It.

Bradlee made another interesting observation that evening. With the passage of time he felt Watergate was not all that serious a matter. By comparison, he told me using colorful language, the Iran Contra scandal of the Reagan Administration was a much more serious matter, and notwithstanding an Independent Counsel investigation, and any number of intense journalistic efforts to dig out the story, the full story had never been told. Ben had little doubt that Reagan had been involved in activities that were far more deserving of impeachment than Nixon’s bungling cover-up.

Nor had been lost Ben’s sense of humor, for he was deeply appreciative of all the news copy Richard Nixon had provided the Post, and it had only helped the newspaper’s credibility when word leaked out that Nixon was banning Post reporters from the White House.

There was only a fleeting discussion of the Post coverage of the Pentagon Papers. Ben told me that he was driven by two matters. He said he had been pissed that the New York Times had scooped them on what should have been a Post story, so he went after the papers to catch up. And when Assistant Attorney General William Rehnquist (later Justice and Chief Justice) had called the Post and read them a stilted legal warning about what would happen if they published the secret classified material that Dan Ellsberg was leaking (quickly dubbed the Pentagon Papers), that he realized the Justice Department did not know what it was talking about. He had been in military intelligence during World War II, and familiar with classified materials from his work as a foreign correspondent, he knew the material they—and the New York Times—had was not really worthy of the classifications given it. It was more junk than secrets, more government lies being covered up than important national security information being revealed. Again, he thought Nixon’s response was bungled.

I was fortunate to visit with Ben on a good day. I know others who are in the process of the long goodbye of dementia, and it is terribly difficult for those who love and care for them. I have deep sympathy for Sally Quinn Bradlee, who has not only lost a man she loved but done so through a painful process. All who had the pleasure of knowing Ben understand that while Jason Robards did a wonderful job portraying him, in the movie “All The President’s Men,” Ben was much more colorful, dashing, daring, and I suspect demanding. And he clearly understood Richard Nixon better than most editors of the era, for which the entire country can be grateful. While he thought Nixon a bungler, he correctly thought him dangerous as well.

John W. Dean, a Justia columnist, is a former counsel to the president.
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Good2Go? Good and Gone? Why an Affirmative Consent App Is a Risky Proposition Tue, 21 Oct 2014 04:01:35 +0000 Continue reading →]]> Smartphone AffirmativeIn the past year, there has been a growing focus on the high incident of rape and sexual assault on U.S. campuses. In response to this, several parents with kids in college have developed an “affirmative consent” app known as Good2Go. This first-of-its-kind sexual consent app is designed to help students and young adults navigate the world of sexual relations and to teach them more than “no means no” This new app requires users to seek affirmative consent from their partners. In other words, that only a positive “yes means yes.”

Rather than verbal communication, Good2Go is meant to help potential partners to actually answer a series of questions and to document their affirmative consent via smartphone. The app also asks users to divulge their level of intoxication or sobriety via a self-assessment. As I will discuss below, the app, which was pulled from the Apple iTunes Store in early October, is a rather blunt instrument that raises concerns—both in terms of its evidentiary value as well as about the type of data that the app will collect and have stored.

How Does Good2Go Work?

Good2Go is a new smartphone app that encourages users to give consent before engaging in any sexual acts. The app targets college-aged adults. The Good2Go website, in fact, seeks out campus “ambassadors” to spread the word about Good2Go and the principle of affirmative consent. The apps creators, a group of parents, working via Sandton Technologies, hope it will prevent unwanted sexual conduct by facilitating a step-by-step process to ensure both parties are on the same page.

Lee Ann Allman, president of Sandton Technologies has stated that the purpose of the app was and is to teach young people “the language of affirmative consent.” The Good2Go website also explains that “We believe the proper use of Good2Go as a tool in understanding the role intoxication plays as well as teaching the language of affirmative consent will result in fewer sexual assaults.”

With Good2Go, potential partners are meant to use their phones to secure affirmative consent before they hook up. This is about taking a moment before beginning any encounter to make sure both parties are in agreement. New users, of course, needed to register—which meant giving the app a name, phone number and a password. The new user would then log the code that had just been sent to that number. Otherwise, an existing user simply logged into his or her account. Once this is done, Good2Go could log all of a user’s attempted sexual liaisons.

The app, when deployed, focused on two things: (i) is a person ready to have sexual relations with another person and (2) whether the person is intoxicated and thus unable to consent.

“Good2Go should be treated in the same manner as putting on a condom,” the website explained. “It may stop the action for a second, but everyone understands it is in the interest of safety, so it is worth the momentary pause.”

The free app worked as follows: After one party feels amorous, with a potential partner, one of the people involved launches the Good2Go app on his or her phone.

When it is opened, the app displayed the question, “Are we Good2Go?” The other party then selected one of three options. “No thanks,” “Yes, but . . . we need to talk” or “I’m Good2Go.”

If the person being propositioned selected “No”, a screen popped up for the other party that says, “Remember! No means No! Only Yes means Yes, BUT can be changed to NO at any time!”

The second choice of needing to talk paused the app and leads to a discussion prompt so the pair can have their discussion before a final decision is made.

The third option prompted the parties to answer, honestly, whether they are “sober,” “mildly intoxicated,” “intoxicated but Good2Go” or “pretty wasted.” Surprisingly, it is only if a person checked “pretty wasted” that the app shut down and blocks the user from consenting via his or her phone. But if you said you were intoxicated, you could still proceed to consent.

The New Paradigm of Affirmative Consent

In prior discussions of whether someone consented to sexual relations, students learned that no means no, but advocates have been focusing on the need to educate college students that they should seek a real “yes” from a potential partner. This is known as seeking “affirmative consent—getting to yes—and not assuming that because a person did not speak up, that they consented through silence or inaction.

In September 2014, California Governor Jerry Brown signed into law a bill that requires universities in the state to adopt an “affirmative consent” standard to be used when investigating sexual assault complaints on California college campuses.

California is the first state to make affirmative consent the law. Senate Bill 967 amends the California education code to require higher education institutions whose students receive financial aid to uphold an affirmative consent standard in disciplinary hearings and to educate students about the standard. This means that during an investigation of an alleged sexual assault, student disciplinary committees at both public and private institutions will have to ask whether the sexual encounter met a standard where both parties were consenting. Consent is defined as “an affirmative, conscious and voluntary agreement to engage in sexual activity.”

While the California law has its detractors, it is now the law. And it has brought the issue of affirmative consent into the public forum. The Good2Go app dovetails with this initiative and focuses on “getting to yes” by using a Smartphone app.

Evidentiary Issues

Good2Go is meant to be an educational tool—teaching young adults to seek permission and consent before engaging in sexual activity. But it is an app that is used at the beginning of an encounter; it did not ask users to specify what exactly each party is consenting to. That question is left open, so the app only goes so far in terms of protecting both parties.

It is also unclear whether this type of “consent” could be used legally as proof of consent. One can imagine many problematic scenarios where consent is obtained under duress or coercion, or where people are lying about their own state of intoxication.

Parties have to self-select their level of intoxication, but one person’s intoxication could be another person’s completely wasted. Asking parties to describe their state of inebriation should not be seen as determinative of facts, as people may check one category or another to avoid embarrassment, to prevent being blocked from consenting, etc. And what happens if your potential partners are actually looking over your shoulder as you click to consent—or worse—takes your phone and consents for you. So the future use of the app and the significance of the “consent” obtained are yet unclear, and it raises many unanswered questions.

One would hope that the Good2Go app would not be used as evidence of affirmative consent in university disciplinary proceedings, for example. What if a person clicked “yes” and indicated they were mildly intoxicated—but in fact had been impaired. Would this be concrete and irrefutable evidence of consent?

There are many concerns around the nature of consent via a mobile pap. As noted above, it is a crude instrument—clicking “I agree” like ordering goods or services online may or may not be a good substitute for actual conversation about consent and the limits of a person’s consent.

Privacy Concerns

The second area of concern relates to privacy. Good2Go, as initially offered, was set u to amass a huge amount of sensitive data about individuals and their sexual histories. The Washington Post discussed these concerns in a recent article. The data included a listing of all of your partners to when you have had sexual relations and your reported state of sobriety or intoxication. This is highly sensitive information and it would all be in the hands of a third party.

According to its own terms of use, Good2Go logged personally identifiable information, including names and phone numbers, on all its users. When two people use the app to connect, it records the users’ phone numbers, as well as the time of the encounter and one partner’s sobriety. (Because Good2Go requires you to register with a name and phone number, that number is also tied to your provided name.) Per its loose privacy policy, Good2Go could share that information with law enforcement, “third-party service providers” and other marketing firms “for any reason, in Good2Go’s sole discretion.”

The Good2Go app was free, which left the question as to how Sandton was going to earn revenue to continue operating the service and improving its design. One could imagine that Good2Go might share information with potential advertisers of condoms, birth control, or other services aimed at a young sexually active crowd. Recent revelations of how hackers have been able to obtain nude or explicit photos of celebrities remind us that this sensitive data may not be secure. It could be leaked to embarrass or humiliate young adults—whether famous or not, or worse possibly—for forms of extortion.

This doesn’t just mean that your data is only vulnerable to hackers. Your personal files could be transferred to another company if Good2Go is acquired, be subpoenaed in a civil lawsuit (e.g. a divorce proceeding) or criminal case, or be sold off to a third party entirely.

“To be clear, it is not our policy to disclose these records to just anyone,” Lee Ann Allman, the president of Good2Go and its parent company, Sandton Technologies told the Post. She noted “Good2Go/Sandton Technologies would need to be presented with an official, legal request via law enforcement or a specific university before we would disclose these records.”

As for marketers, she added the company doesn’t currently share records with them, because the app’s “initial focus is to drive adoption . . . and the concept of affirmative consent on college campuses.” But Good2Go is in its infancy—once the data is collected, its unclear what happens if the company needs a profitable business model.

So beyond the fact that the app itself is a poor proxy for face-to-face communication, users should think twice before giving up their sexual history to an app developer and potentially to marketers and others.

Good2Go has promised it will release Version 2.0 of its app and hopes to do so as a crowd sourced product. Let’s hope that its creators throw their money and ambition behind other ways to deal with the real problem of sexual assault.

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Development. She is also a member of the Law, Technology and Arts Group at at the Law School. Ramasastry writes on law and technology, consumer and commercial law, and international law and globalization.
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The Military Commissions Are Still Proceeding Mon, 20 Oct 2014 04:01:37 +0000 Continue reading →]]> GuantanamoWhatever happened to Khalid Sheikh Mohammed (often called KSM)? KSM is the self-proclaimed mastermind behind 9/11. Recall that the Administration wanted to try him for 9/11 crimes in a federal court in New York. New Yorkers objected that option in no uncertain terms, so this Administration is now trying him before a military commission at Guantanamo Naval Base in Cuba. He was captured in 2003 and transferred to Guantanamo in 2006. Since then, what has happened? Delay. Lots of delay.

Recent military actions should cause even more delay. One of the Army lawyers assigned to represent KSM, Major Jason Wright, has now resigned from the military. He resigned because the Army told him he has to leave the case to attend a graduate course, which he wanted to defer and which he could easily defer. The defense lawyer believes that his removal raises ethical issues. He has been counsel for KSM for several years and, he said, it was hard to gain the trust of KSM. That is why, he said, he did not want to be relieved of the case. The Pentagon’s response: “The Judge Advocate General denied the second deferral request because a suitable and competent military defense attorney replacement was available, Major Wright was not the lead or sole counsel, and it ensured Major Wright remained professionally competent and competitive for promotion.” Major Wright then says that he decided to throw in the towel and leave the Army altogether.

Sometimes it is difficult to understand the government mind as applied to legal matters. The decision to prevent Major Wright from delaying his class is just the most recent example. Earlier, the Military Commission’s original rules, like its changed rules of October 2005, did not allow the accused to represent himself. The Commission, by fiat, assumed that no defendant was competent enough to defend himself, although the Commission thought that a defendant was competent enough to plead guilty.

The standard rule in the country is that a criminal defendant has a constitutional right to represent himself in a state or federal trial if he voluntarily and intelligently elects to do so. The Commission rules, until Congress imposed a change by statute, forbade all pro se representation. The rule that prohibited pro se representation did not serve the detainees well, for it prohibited competent adults from exercising the right that every competent defendant has in all American criminal courts, state and federal.

This no-pro se rule also did not serve the military well. Consider the case of al Bahlul, a detainee charged with war crimes who refused civilian or military counsel. During the August 2004 war crimes proceedings, Al Bahlul asked to represent himself. Judge Brownback, the military judge, immediately said no. He conducted no hearing to determine whether al Bahlul was competent to defend himself. He just denied the request.

Then, al Bahlul asked to make a statement, and he asked not to be interrupted. He started speaking and said:

As God is my witness, and the United States did not put any pressure on me, I am an al-Qaeda member, and the relationship between me and Sept. 11 . . .

“Stop!” yelled Judge Brownback, who interrupted him.

Brownback told the lay members of the tribunal members — incorrectly — that he cut off al Bahlul because the defendant’s statement, which was not under oath, was inadmissible as evidence. That is false. Statements made in open court are evidence, even if not made under oath. Admissions against interest are admissible. Hence, the prosecution objected to the judge’s ruling regarding admissibility. Defense lawyers chimed in. Eventually, after the lawyers spoke, Judge Brownback turned back to al Bahlul, who, it seems, had lost his train of thought and sat down! We never heard what al Bahlul had to say. His complete statement might have been interesting.

Later, during the proceedings in January of 2006, al Bahlul again asked to appear pro se. He made clear that he rejected not only his military counsel but also his civilian counsel:

I heard the judge say that I have appointed volunteer lawyers. I would like to tell the judge and the people present here that I never appointed any civilian lawyers, not directly, and not in writing. And I am surprised to hear that from you. This is not because—I’m not surprised that some people [the civilian lawyers] volunteered their services. Many people would like to volunteer in this case just to get some fame. They ask for fame. They want fame for themselves and I do not appoint anyone by writing or even by inference.

Finally, Congress changed the Commission rules by statute. The law now accepts the basic right of a defendant to represent and speak for himself.

In late 2008, a military jury convicted al Bahlul of conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes for his part in September 11, 2001, terrorist attacks. He was sentenced to life imprisonment.

Then came the appeals. In July of 2014, the D.C. Circuit (en banc) rejected Bahlul’s ex post facto challenge to his conspiracy conviction and then remanded that conviction to the original panel to dispose of several remaining issues. In addition, the D.C. en banc court vacated his material support and solicitation convictions as “plainly” violating the Ex Post Facto Clause. The conclusion of his legal journey lies sometime in the future.

Another peculiarity is what happened during oral argument in Hamdan v. Rumsfeld. In that case, the Supreme Court (5–3), reversed a decision that then-Judge John Roberts had joined when he was on the D.C. Circuit. Hamdan held, first, that it had jurisdiction. In other words, the Detainee Treatment Act of 2005, which limited federal jurisdiction, did not apply to pending cases. Second, the Uniform Code of Military Justice did not authorize the President to set up “military commissions” (or “war crimes tribunals” in popular parlance) to try alleged war criminals.

What is intriguing is the oral argument, for it suggested that the Government’s assertion of legal power was amazingly broad. During oral argument in the Hamdan case, Justice Breyer asked the Government, “And if the president can do this, well, then he can set up commissions to go to Toledo and, in Toledo, pick up an alien and not have any trial at all, except before that special commission.”

The Government could have responded that Hamdan was not a U.S. citizen nor was he an alien picked up in Toledo. He was an alien captured in Afghanistan. The military cannot simply prosecute aliens it finds in Toledo. However, if the hypothetical alien had been walking in Toledo and the Government could prove that he was an enemy spy who had been inside enemy lines fighting against the United States, and then sneaked into the United States as a spy, he would be like the aliens whom the Government captured in Ex parte Quirin. Shortly before the Hamdan decision, Justice O’Connor told us that Quirin is the law today. That is what the Government could have argued.

However, that is not the position that the U.S. Government embraced. Instead, it responded: “This is much more of a call for military commissions in a real war than, certainly, the use of military commissions against the Medoc Indians or any number of other instances in which the President has availed himself of this authority in the past.” Justice Breyer did not appear interested in the Medoc Indians.

Some of these actions came during Administration of Barack Obama, while others came during the Administration of George W. Bush. Yet others were decisions that straddle both Administrations. In each case, the Government should try better to justify its decisions or, failing that, make other decisions.

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.
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How the Supreme Court’s Inaction on Same-Sex Marriage Echoes Its Conduct in the Civil Rights Era Fri, 17 Oct 2014 04:01:37 +0000 Continue reading →]]> U.S. Supreme CourtThe Supreme Court opened its new Term this month with a surprise: Instead of granting review in one of the cases in which the federal appeals courts had invalidated state laws banning same-sex marriage, or even “holding” those cases pending further developments in the lower courts, the High Court denied review. Because the Court’s action—or more accurately, inaction—also had the effect of dissolving previously granted stays of the appeals court rulings, thousands of same-sex couples throughout the country were able to marry legally. And because it is difficult to imagine that the Court would have condoned that result if it thought that there were a realistic chance of later ruling against a right to same-sex marriage, most informed observers took the dismissal of the appeals as signaling that a majority of the Justices now believe there is a constitutional right to same-sex marriage.

Various commentators have criticized the Court for failing to confront the issue directly. The criticism comes from both directions. Opponents of a constitutional right to same-sex marriage say they have been deprived of their opportunity to make their argument for state regulatory primacy over marriage; meanwhile, some proponents of the right argue that the Court should deliver the coup de grâce. In its most basic form, the charge from each side amounts to a claim that the Justices took the cowardly way out.

Yet there is an important precedent for the Court’s inaction. In the wake of the landmark 1954 ruling in Brown v. Board of Education, the Justices repeatedly declined to review lower court decisions invalidating racial segregation in contexts other than education. Then, as now, the Court left the lower courts to work out the implications of its broad statement of principle.

By taking note of both the similarities and the differences between the earlier period and the current one, we can shed some light on the work of the Court.

What the Certiorari Denials Mean

As an official matter, when the Supreme Court denies a petition for certiorari (or “cert”), it thereby sets no precedent. The Court accepts only a small fraction of the cert petitions filed for plenary consideration, and cannot possibly give full consideration to the merits of each such petition. Thus, the rule that treats a cert denial as non-precedential makes sense.

Why then do informed observers regard the cert denials in the same-sex marriage cases as signaling a substantive view on the merits? We can see the answer by considering a counterfactual example.

Suppose that a majority of the Supreme Court were open to the possibility that the Constitution permits states to ban same-sex marriage. If so, and if the Court eventually grants cert in a case presenting the question whether a state same-sex marriage ban is valid, what would happen if the Court were to rule that there is no constitutional right to same-sex marriage after all? Thousands of same-sex couples who got married during the period when the lower courts had declared a right to same-sex marriage would find themselves in a legal limbo. The states in which they live might choose to continue to honor their marriages, but they might not. And because a federal court has no power to require a state to provide “grandfather clause” protection based on a subsequently overruled decision, a Supreme Court ruling denying a right to same-sex marriage would create extraordinary legal difficulties for the couples and the states.

Accordingly, if there were any real chance that the Supreme Court will rule against a right to same-sex marriage, it would have been utterly irresponsible for the Court to have denied cert in the cases finding such a right and to have lifted the stays of judgment in those cases. Because there is no reason to think that the Supreme Court is utterly irresponsible, the cert denials therefore sent a strong signal that the Court would recognize a constitutional right to same-sex marriage in some future case—probably if and when a federal appeals court or state supreme court rejects such a right.

The Post-Brown Cases

The Supreme Court’s denial of the certiorari petitions in the same-sex marriage cases earlier this month echoes its approach to racial segregation sixty years ago. Most people recall Brown v. Board as the case that held de jure racial segregation unconstitutional, full stop. But the truth is somewhat more complicated.

In 1896, in Plessy v. Ferguson, the Court rejected an equal protection challenge to a Louisiana law requiring railroads to segregate passenger cars based on race. The concept of “separate but equal”—a phrase that appears in (the first) Justice John Marshall Harlan’s Plessy dissent but not in the majority opinion—was thus entrenched in American law for over half a century.

Brown did not, however, directly overrule Plessy. Instead, while disavowing some of the broader language of Plessy, the Brown Court ended up concluding that whatever might be true about transportation, segregated public educational facilities were unconstitutional. Chief Justice Earl Warren’s opinion for a unanimous Court discussed developments in public education since the Nineteenth Century, and its importance in shaping citizens. He concluded that “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

That conclusion raised but did not answer an obvious question: Did the doctrine of “separate but equal”—which, after all, had been first accepted by the Court in a case involving transportation—still have a place in other contexts? The Court did not address that question. Over the next decade and a half, the Justices repeatedly refused to give plenary consideration to any case involving segregation in such other contexts. Instead, the Court simply affirmed without opinion the rulings of the lower federal courts invalidating de jure racial segregation in public parks, golf courses, beaches, buses, athletic events, courtrooms, and other places. Then, as now, the Supreme Court left the specific implementation of the broad principle to the lower courts.

Retroactive Great Case Status for United States v. Windsor

Although the Court’s post-Brown behavior provides an important precedent for the cert denials in the same-sex marriage cases, there are also some differences between then and now. Consider two.

First, the post-Brown cases arose as appeals rather than as certiorari petitions. Under a law that Congress repealed in 1988, when a lower federal court struck down a state law as unconstitutional, the state had a right to appeal to the U.S. Supreme Court. Unlike the writ of certiorari, an appeal under the pre-1988 law conferred non-discretionary jurisdiction on the Supreme Court.

The Supreme Court’s post-Brown decisions ducking the question of whether Brown applied in various other contexts were thus technically judgments on the merits. Whereas we must piece together the current Court’s acceptance of a right to same-sex marriage from the presumed intentions of the Justices, when the Court affirmed the post-Brown cases without opinion, it was officially making law.

Nonetheless, one should not make too much of this distinction. In the decades leading up to the 1988 repeal of the Supreme Court’s mandatory appellate jurisdiction, docket crowding prevented the Justices from giving full consideration to every case that fell within that jurisdiction. Consequently, the Court routinely “cheated,” by summarily affirming rulings of the lower federal courts. Hence, even if a summary affirmance from the pre-1988 era counts as a judgment on the merits in some technical sense, everyone understands that these summary affirmances do not have the full precedential force of an opinion after full briefing and oral argument.

Indeed, the same-sex marriage issue itself demonstrates that the technical difference between appeals and certiorari counts for little. Opponents of same-sex marriage sometimes point to the 1972 case of Baker v. Nelson, in which the Supreme Court summarily affirmed a ruling of the Minnesota Supreme Court rejecting a right to same-sex marriage. But proponents of marriage equality rightly counter that a summary affirmance from that era is barely a precedent at all.

If the difference between a summary affirmance and a cert denial is merely technical, the second difference is more substantial: although Brown v. Board did not fully decide the constitutionality of de jure racial segregation outside the education context, it was clearly a momentous case that was understood at the time to have broad implications, even if the exact borders of those implications were not entirely clear.

By contrast, prior to the cert denials earlier this month, no Supreme Court case came down unequivocally for marriage equality. True, many observers thought that the Court’s 2013 decision in United States v. Windsorstriking down Section 3 of the Defense of Marriage Act—was a good indication that the Court would eventually rule in favor of a constitutional right to same-sex marriage. But there was enough ambiguity in the Windsor opinion to permit other observers, including Chief Justice John Roberts in his dissenting opinion, to read the case as depending on principles of states’ rights that would be absent in a challenge to a state same-sex marriage ban.

The recent cert denials may necessitate a reconsideration of Windsor. Juxtaposed against the post-Brown summary affirmances, these cert denials indicate that Windsor actually was a broad statement of principle whose details were left to the lower courts to fill in.

Many Court watchers have wondered whether Justice Anthony Kennedy—the author of the three leading gay rights majority opinions in the Supreme Court, including Windsor—would some day write the definitive decision finding a right to same-sex marriage. Now it appears that he already has.

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
]]> 0 0:09:55 Cornell University law professor Michael Dorf highlights similarities and differences between the U.S. Supreme Court’s inaction during the Civil Rights Era and presently, with regard to the issue of same-sex marriage. Cornell University law professor Michael Dorf highlights similarities and differences between the U.S. Supreme Court’s inaction during the Civil Rights Era and presently, with regard to the issue of same-sex marriage. no no