Verdict Legal Analysis and Commentary from Justia Fri, 17 Apr 2015 04:01:57 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no R.I.P. Stanley I. Kutler Fri, 17 Apr 2015 04:01:57 +0000 New York Times never seemed to quite understand Watergate, as evidenced by its gratuitously repeating a false charge about Stanley’s book in its obituary on him. Continue reading →]]> Abuse of Power CoverStanley Kutler taught American history at the University of Wisconsin for 32 years, retiring in 1996. He was an extremely popular professor on the Madison campus, a fact I learned from a number of his former students who have introduced themselves to me when I have been out lecturing. I once asked one why Kutler was so popular, and she told me that he made history seem like “really memorable gossip.” I knew exactly what she was talking about.

I came to really know Stanley as he was finishing his second Nixon book, Abuse of Power: The New Nixon Tapes, which he published in 1997. At that time my wife and I were involved in litigation against a small group of bogus Watergate revisionists who had created a conspiracy account of Watergate that had little to do with reality. Because I had read that Kutler settled a lawsuit against the National Archives and Records Administration (NARA) and forced the release of Nixon’s secret White House tapes, and was writing a book based on those tapes, I sought him out. I knew the tapes could put the lie to this phony Watergate revisionism.

Stanley was very aware of this effort to rewrite the history of Watergate. He told me journalists had sought him out based on his earlier book, The Wars of Watergate, and that he had publicly said the revisionism was not only bogus, but some of shabbiest history he had ever seen published. As for his publishing the Nixon tapes, he reported he was working under a very tight schedule using court reporters at NARA to transcribe what were called the “abuse of power” tapes under the terms of his settlement agreement with NARA and the Nixon estate. These were agreed upon portions of Nixon’s secretly recorded conversations that related to Watergate, and Nixon’s earlier abuses of power, like ordering a break-in at the Brookings Institute to recover the so-called Pentagon Papers (a study prepared during the Johnson Administration of the origins of the Vietnam War), and the abusive efforts to prosecute (read: persecute) Daniel Ellsberg for leaking this material to the New York Times in 1971, which pre-dated Watergate. Stanley explained the recordings were difficult to transcribe, and there was way too much material for a book, so he and his editor, Bruce Nichols at Free Press, were trimming the transcripts to present their essence.

Stanley said his new book would include only “new Nixon tapes,” so those that had been released earlier by the Watergate Special Prosecutor, which included most of my conversations with Nixon on Watergate, would not be included, although for the sake of continuity in the story they planned to put a few edited portions of my conversations in the book. Stanley thought his book might help our litigation. He said the galley pages of his book would soon be available and it would help him if I would be (along with others) one of his readers. I agreed to do so and did. Reading the edited transcripts I was able to point out several occasions where the wrong person was identified as speaking words I knew they would never have spoken. Stanley checked and I was correct. (His transcribers often confused the voice of Nixon’s top domestic policy adviser, John Ehrlichman, with that of his press secretary, Ron Ziegler.) That was the extent of my relationship with Stanley before he published Abuse of Power: The New Nixon Tapes, although during the years that followed we became good friends.

Abuse of Power was a real problem for Nixon’s apologists, folks like the bogus Watergate revisionists who want to rewrite the history of the Nixon presidency, making Nixon a victim. Not surprisingly, this crew can be vicious, and Stanley Kutler incurred their wrath. It took them a while but by 2009, over a decade after he had published Abuse of Power, they were peddling false charges about the book to scholarly historical journals. A proposed article, written by a former junior college administrator and sometimes adjunct history instructor, claimed that Stanley had distorted his presentation of tapes in Abuse of Power to somehow protect me.

The claim was, in effect, that Kutler should have included in his book tapes of my conversations that were not new and that were publicly available. Not surprisingly, legitimate historical organizations turned down the attack article. Not only were the charges baseless, but the article focused on totally meaningless minutia—unimportant and uninteresting information.

Nonetheless these phony Watergate revisionists managed to hoodwink no less than the New York Times into believing there was some new Watergate cover-up underway, so the Times reported and repeated their charge. Understandably, Stanley was upset at this absolutely absurd attack on his reputation, and the Times was caught off guard when legitimate historians came to Stanley’s defense. Unfortunately, the Times’s ombudsman only partially straightened out the facts, and failed to recognize how they had been snookered.

With this incident, however, I realized the New York Times did not understand Watergate. They did not get it when it happened, nor afterward. It seems the Times fell off track at the outset, when Nixon’s national security adviser Henry Kissinger assured their Washington bureau chief, Scotty Reston, in June 1972, that there was nothing to the Watergate story. That was shortly after the arrests of the burglars in the Democratic National Committee (DNC) headquarters at the Watergate. Other than a few isolated stories, the Times largely ignored Watergate until they hired investigative journalist Seymour Hersch in January 1973, just before the trial of the men arrested in the DNC, and their confederates. Hersch got the Times back into actually reporting news about Watergate.

I have followed the reporting of the Times for forty-some years, and while this is not the time or place, suffice it to say there is a striking institutional confusion at the Times about Watergate. I raise all this now because I was saddened to see the Times get it wrong again by gratuitously repeating the false charge about Stanley’s book Abuse of Power in their obituary on him. He deserved better.

John W. Dean, a Justia columnist, is a former counsel to the president.
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The One-Religious-World-View Public Policy of the Conservative Christians and the Way Out Thu, 16 Apr 2015 04:01:27 +0000 Continue reading →]]> Courts and ReligionFrom the beginning of the first Religious Freedom Restoration Act (“RFRA”), it was nearly impossible for most of us to predict what claim would land in our laps next, or what claims would dominate. Except for the conservative Christians, whose agenda keeps popping up through the policy and RFRA thicket.

When RFRA began its journey through our society in 1993, the conservative Christian agenda was so deeply buried that the “Coalition for the Free Exercise of Religion” included the ACLU, Americans United for Separation of Church and State, and People for the American Way. President Clinton proudly signed it.

To this day, conservative Christians like to describe the RFRAs as “bipartisan” as they point to Clinton’s and the ACLU’s support, because that gives them cover for their extreme conservative agendas. No more. The anti-progressive agendas slowly leaked out, and now all of those liberal groups have some explaining to do, but more importantly, battles to wage, and to their credit they have stepped up.

But the real folks at fault are the legislators who have been willing to accept faith and faith alone as a reason to pass laws.

The Recent Parade of Conservative Christian Agendas Transformed into Law

From the late 20th century to now, major public policy has been shaped to fit one religious world view, that of the conservative Christians. I am not a political scientist and so won’t venture to say why this is, other than to note that lobbying takes a lot of money.

They have heavily invested to make public policy reflect their beliefs in the following categories: reproductive health care, housing discrimination law, sexual orientation anti-discrimination law, same-sex marriage, and parental control over their children.

Reproductive health care. Since the Supreme Court recognized the right to reproductive privacy in Griswold v. Connecticut, there have been lobbyists operating to regulate and reduce the availability of contraception. After Roe v. Wade, there was a similar response, on steroids. Abortion has been regulated every which way to Sunday, including mandatory delays, “educational” materials to be shown by doctors, and exclusion of government welfare support for poor women. Who fought for these restrictions? Conservative Christians.

More recently, the federal government and some states have enacted so-called “conscience clauses,” which authorize health care professionals from pharmacists to emergency room doctors to refuse to provide prescriptions or other medical treatment if doing so conflicts with their religious faith, as Professor Leslie Griffin discusses here. They are worded broadly, but the goal was to reduce the availability of contraception, miscarriage medications, and abortifacients even in cases of rape or incest. Who demanded and succeeded in obtaining these laws? Conservative Christians.

Even though the vast majority of Americans approve and use contraception, the drive to reduce availability continues. Look at the anti-contraceptive agenda revealed when Hobby Lobby raised the RFRA sword to fight off the Affordable Care Act’s contraceptive mandate for its employees in arts and crafts stores in Burwell v. Hobby Lobby. Again: conservative Christians at work.

Housing Discrimination. Behind the apparently ecumenical RFRA drive in the early 1990s, there was an intent to undermine housing discrimination based on familial or marital status (a fact unintentionally disclosed during the first unsuccessful drive to enact a California RFRA). There was significant success because marital status never became a category under the federal fair housing law, and it is only recognized in a handful of states. Who was against the fair housing laws (actually from the beginning)? Conservative Christians.

LGBT Discrimination. Once Massachusetts recognized a right to same-sex marriage, state constitutional amendments and laws to ban gay marriage appeared in state after state. There was serious determination: after California recognized same-sex marriage, a referendum was passed to invalidate it. Who again? Conservative Christians.

Then there were demands for LGBTQ anti-discrimination laws, and the backlash began. Some cities and states did, but far from all, and the federal government never has. When some Colorado cities extended such protection, a Colorado referendum prohibited such civil rights. Source: Conservative Christians.

The Supreme Court in Romer v. Evans invalidated the Colorado law, because it was nothing but animus. So now there was a “need” for laws that would permit believers to avoid those anti-discrimination laws. RFRA advocates started to argue that the RFRAs apply between private entities so that business owners could reject same-sex couples and the LGBTQ community as customers. Such bills were introduced in Arizona, Mississippi, Arkansas, and Indiana, as I discuss here and here. One more time: conservative Christians.

Some might believe that the Indiana RFRA was the Waterloo for the conservative Christian agenda. Not so fast.

Family values. What is left? Well, family values, and in particular, parental rights to control their children.

The original version of the Georgia RFRA introduced this year contained the following language:

Nothing in this Chapter shall be construed to . . . Impair the fundamental right of every parent to control the care and custody of such parent’s minor children, including but not limited to control over education, discipline, religious and moral instruction, health, medical care, welfare, place of habitation, counseling, and psychological and emotional well-being of such minor children as provided for under the laws of this state and of the United States . . . .

This was an odd parental rights provision in that it was being carved out of the RFRA with its extraordinary protection for religiously motivated conduct. Yet, what was more remarkable is that this language appeared in a RFRA at all. While the Georgia RFRA went nowhere, this revealed that the RFRAs are becoming vehicles for explicit agendas, which were originally kept under the radar to get the first RFRA enacted.

Later in 2015, Idaho considered and enacted a stand-alone parental rights law that now co-exists with the state RFRA. It grants parents a “fundamental right” to control their children’s upbringing in all categories, whether or not the state or federal constitutions accord parents a “fundamental” right of control. Again, this is straight out of the conservative Christian playbook. No doubt, it will be pushed in state after state. By whom? Conservative Christians.

Why does this matter? Because children die in homes where the parents choose faith over medical care; herd immunity is on the wane with the failure to vaccinate arising from religious exceptions; children are given to men in religious polygamist communities; children in deeply religious schools are often shortchanged on educational content; and children are disproportionately sexually abused in the home as compared to any other venue. Children need rights and more protection, not religious parents who can hide behind a “fundamental right” and a RFRA to martyr their children.

The Way Out of a One-Religious-World-View Public Policy

While the RFRA movement started with a remarkable even if utterly misguided bipartisan coalition, it is increasingly clear that one religious cohort in the United States has stood to benefit, and that the RFRA push is really just an integral part of the larger goal of imposing one religious world view on national and state public policy. The result is that the claim to a generic religious liberty now rings hollow. More importantly, it is time for our elected representatives to be reminded that, under the Constitution, they are required to represent all Americans, regardless of faith or creed.

When a lobbyist demands a law simply due to faith, or God, or Jesus, that’s not enough. If you need proof, you might want to give Indiana’s Gov. Mike Pence a call, as he has some valuable recent experience with thoughtlessly backing a law with no other justification than faith. In lieu of a call, though, you could simply read the polls.

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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Have You Seen the Tape? Tue, 14 Apr 2015 04:01:10 +0000 Continue reading →]]> Police EquipmentIn my last column, I described the determination by prominent criminal justice reformers to avoid any discussion of race in their narratives. I think this a mistake and promised to use this column to chat about the groups that were pushing back against this practice. They are trying to develop a reform narrative that does not ignore race, but instead incorporates it into a productive conversation that transcends black versus white.

Then we learned about Walter Scott, whose death made plain—in ways that words cannot—that we ignore race at our peril and shame.

Though few people defend Officer Slager, not everyone draws the same lesson from his contemptible behavior. Like the dress that was either white and gold or blue and black, people who have seen the footage of Scott’s surreptitiously recorded murder have tended to see two different things.

For many black viewers, Officer Slager’s staggering brazenness—shooting an unarmed black man in the back as he fled from a traffic stop, in public and broad daylight, while at least one witness stood close by—is simply the apotheosis of an attitude they see and experience scores of times every day, which all too often begins with harassment and ends in violence. And the fact that most of these encounters do not end with gunshots does not make them different in kind from those that do.

On the other hand, for most whites who watch the video, Slager’s inexcusable callousness is so shocking and so at odds with the behavior they have come to expect from law enforcement, that they naturally categorize it as anomalous. After all, police shootings of unarmed black men, while far too frequent, are thankfully quite rare, given the millions of daily interactions between police and black citizens nationwide.

And there you have it: Is the shooting of Walter Scott merely a point along a spectrum, or an inexplicable leap beyond the pale from an otherwise acceptable norm? Like the dress, it depends on whom you ask.

But unlike with the dress, can’t they both be right? Can the murder of Walter Scott be both representative and exceptional at the same time? Yes. And unless we understand how and why this is so, we cannot hope for meaningful criminal justice reform.


As I have described in another column, we can imagine two very different criminal justice systems. In one, the members of society are presumptively innocent and equal, free to go about their affairs unmolested by the government to the maximum extent possible. In the other, the citizenry is composed of “us” and “them,” and it is imperative that someone be empowered to protect the former from the latter.

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

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

For the past fifty years, we have lived in the second world. Since at least the late 1960s, Democrats and Republicans in all three branches of the federal government and all fifty states have steadily reshaped every step in the criminal justice system—from policing, prosecution, and the rights of the accused to sentencing, corrections, and post-prison collateral consequences. No stage in the system has gone untouched, and at each step, policymakers have been animated by one goal: to enlarge the government’s power to monitor, search, stop, arrest, prosecute, imprison, and impose continuing burdens on those believed to fall outside the magic circle that separates “us” from “them.”

Observers often make the mistake of examining only part of the process, and suppose that it can be repaired independent of the rest. But this is like trying to patch only one hole in a sinking ship. It is vitally important to see the system as a whole, since each part affects the others, and all have acquired their current shape as a result of demands placed upon them over the course of five long decades. We call it the criminal justice system for a reason.

And in this system, law enforcement has been forced into an impossible situation. We ask it to deliver what no society has ever achieved—complete safety—and rebuke it unfairly when it fails. Yet at the same time, we launch ideological wars against mythical demons that do not so much prowl the streets as haunt the imagination, wars that continue long after their ostensible justification has been forgotten.

So that law enforcement may “win” these wars, we have bestowed upon it a very particular set of weapons, which we dignify as “law.” Thus, any person who flees from the police is for that reason alone a suspect, but no suspect is protected by the Constitution until he is caught. If you make what an officer might later describe as a “furtive movement,” he may stop you, without probable cause to believe you have committed a crime. The police may ask to search you, your car, your parcels, and your home, but need not tell you that you may decline. Any violation of the law, no matter how trivial, can be the subject of a full custodial arrest.

This list can be expanded for as long as it takes to recount nearly 50 years of doctrine. And long before we have finished the list, we will have noticed that law enforcement trains its weapons overwhelmingly against people of color, without regard to rapidly falling crime rates. To this, the law yawns with indifference—that is, unless we can make the practically impossible showing that the individual officer acted with racist intent, even though the problem typically originates not with the officer but with the system itself.

Far worse, we have extended these weapons to law enforcement at the same time we have altered its character. We have steadily militarized law enforcement, not just in its equipment but in its training and attitude. We have glorified a warrior mentality that makes disobedience to authority an invitation to extra-judicial punishment, of which violence is merely the most extreme form. In many departments, a militarized culture pairs with the mandate to win unwinnable wars to make law enforcement seem like an invading army and the community as conquered territory.

And then we express shock when we encounter an Officer Slager, who, by a lethal combination of personal shortcomings and situational stress, takes a step too far.

Of course it is true that most officers do not shoot unarmed civilians in the back as they flee from the scene of a traffic stop. In that respect, Officer Slager is indeed an exception. But it is no less true that Slager—like every officer in the United States and every participant in the criminal justice system—came of age, attended school, and has worked for their entire career in a culture hell-bent on deploying the power of the government to separate “us” from “them.”

To believe that Officer Slager is an exception, therefore, rather than a product of the system we have created, you have to ignore what we have done to law enforcement over the past five decades. You have to turn a blind eye to the demands we have made and the power we have bestowed. You have to pretend we have not distorted its operation with perverse incentives. In short, you have to convince yourself that criminal justice is unlike any other system in American life and that its parts operate untouched by each other and the world around it.

Or, you can work to change the system.

Joseph Margulies is a Visiting Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.
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Ignoring the Supreme Court When You Don’t Like the Result Mon, 13 Apr 2015 04:01:26 +0000 Continue reading →]]> Gavel, Stethoscope & DollarsShould President Obama ignore an adverse ruling in King v. Burwell? That is the case recently argued in the U.S. Supreme Court. Plaintiffs argue that the Affordable Care Act (“ACA”) does not allow the federal government to subsidize federal health exchanges, only state-created health exchanges. The law itself is complex, totaling nearly a thousand pages in length. However, the statutory interpretation issue is straightforward.

The ACA provides that territories of the United States (e.g., Guam) are “States,” for purposes of this law. Section 1323 provides that if a “territory” creates an Exchange, it “shall be treated as a State” under this law. Another section of the ACA says that the District of Columbia is a “State” for subsidy purposes. Another section of the law provides, “In this title, the term ‘State’ means each of the 50 States and the District of Columbia.” Congress knew how to define “state” to include more than “states.” It did that when it defined Washington, D.C. and “territories” as “States.”

However, no section of the law defines “State” to include the federal government. That was not an accident. An earlier version of the bill—one that Congress did not enact—provided that “any references in this subtitle to [any] Health Insurance Exchange . . . shall be deemed a reference to the State-based Health Insurance Exchange.” That language would treat federal exchanges the same as state exchanges. Congress, however, did not enact that version.

Congress had a reason not to extending subsidies to federal exchange (under Section 1311 of the ACA), while authorizing subsidies for states, the District of the Columbia, and any U.S. territory that created a “qualified exchange,” (under Section 1321 of the ACA). Congress wanted to incentivize the states to set up health exchanges while denying subsidies for a state’s citizens if the state refused to create an exchange. As one architect of the law explained:

What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges.

The Administration thought that the ACA would be wildly popular. For many people, it is not. As of January 2015, only 14 states had established Health Exchanges. That meant that the Department of Health and Human Services (“HHS”), using Section 1321 of the ACA, established exchanges in the remaining states. The IRS claims that when Section 36B refers to Section 1311 and state exchanges, there is some sort of ambiguity and it really means to refer to Sections 1311 and 1321 and federal or state exchanges.

The Supreme Court, in King v. Burwell will decide whether the IRS can define Section 1311 to mean Sections 1311 and 1321. If the Court authorizes the IRS to, in effect, change the meaning of Section 1311, that will be the first time that Congress has delegated the power to raise taxes or spend tax subsidies. If the President loses this case, HHS Secretary Burwell has told us, reassuringly (just kidding), that “we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision.”

What to do? A University of Chicago law professor now argues that the President, if he loses this case, should just ignore the Court ruling except for the four individuals who brought this particular lawsuit. After all, he says—quoting Abraham Lincoln, no less—Supreme Court opinions are “‘entitled to very high respect and consideration in all parallel cases’ but were ultimately limited to ‘the parties to a suit as to the object of that suit.’” [The internal quotations are from Lincoln; the rest are from the commentator.] The commentator does not identify the reference, but Lincoln was talking about Dred Scott v. Sanford (1857). That case held, among other things, that blacks, even freed black slaves, could not be U.S. citizens. Lincoln and the people overruled Dred Scott with the 13th and 14th Amendments.

The quotation from Lincoln is missing a few important words, and the commentator leaves out other details. Lincoln made his remarks as part of his First Inaugural Address. He was arguing that the government should not be bound by litigation to which it was not a party: “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers.”

The government was not a party to Dred Scott. The parties were two private people. The government is a party to King v. Burwell. Burwell is the Secretary of HHS. Other defendants include the Secretary of the Treasury, the IRS, and a host of other government officials. The argument for disregarding the Supreme Court ignores all that, and it misquotes Lincoln. It is easy to argue that the law supports your position if you leave out the facts. Lincoln never said he would ignore the Supreme Court in a case where he was a party. Read his First Inaugural. It’s not that long, it is well written (it is Lincoln, after all), and it makes no fatuous arguments.

Let us say that the Obama Administration follows this law professor’s advice if it loses before the Supreme Court. IRS officials will give out tax subsidies contrary to the law. Those officials will violate the Federal Anti-Deficiency Act, 31 U.S.C. § 1341, et seq., which prohibits them from passing out federal money without statutory authorization. The helpful employees who pay out these subsidies go to prison, and the government collects from the recipient three times the federal money received. There is no need for the prosecution to prove any specific intent to defraud.

That is not the end of the story. What happens if the Administration does not enforce the Anti-Deficiency Act? Congress thought of that, too. Any taxpayer can sue the officials and force them return the money, out of their own pockets, by filing a qui tam action under the False Claims Act, 31 U.S.C. § 3729 et seq. The taxpayer has an incentive to sue because he or she collects from 15 percent to 30 percent of the proceeds.

There is another problem. If the Administration can ignore an adverse decision in King v. Burwell (and apply the rule only to the four individuals who are plaintiffs), future governments can do likewise. For example, let us say the Supreme Court rules that there is a constitutional right to gay marriage. Under the proposal of the law professor, states can apply that decision only to the particular gay couples suing in that particular case. My Verdict co-columnist Michael Dorf discusses that point on his blog.

So, if the Administration takes this advice, it will find that its officials will go bankrupt repaying the money out of their pockets. My advice: follow the law, not the law professor.

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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Some “Teachable” First Amendment Moments in the Supreme Court’s Oral Argument About Confederate Flags on Texas License Plates Fri, 10 Apr 2015 04:01:55 +0000 Continue reading →]]> License PlateIn today’s column, I analyze the Supreme Court oral argument held a few weeks ago in Walker v. Texas Division, Sons of Confederate Veterans, a case involving the First Amendment and Texas’s regulation of license plates. Motor vehicles registered in the State of Texas must display a state-sanctioned license plate. Most vehicles use a standard-issue Texas plate that has a simple no-frills design and displays a random series of letters and numbers. Texas, like many other states, also permits individuals to submit personalized, or vanity, plates in which the numbers and letters on the plate form a message (such as “HOTSTUFF,” a hypothetical example Justice Scalia used at oral argument).

In addition, Texas permits what are called “specialty” license plates, in which the overall design of the plate (but not the sequence of numbers and letters), is custom-made and might contain symbols, colors and other visual matter that is more elaborate than the relatively plain design of the standard-issue plates. Specialty designs may be adopted by the Texas legislature or proposed by private individuals or organizations. Specialty plate designs that come from outside the legislature must be approved (as must personalized vanity plates) by the Texas Department of Motor Vehicles Board, and the Board by law “may refuse to create a new specialty license plate if the design might be offensive to any member of the public” (a term that Texas authorities construe as meaning offensive to a significant segment of the public.) At least some specialized designs, once approved, can be used by members of the general public. As of a month ago, there were about 450 specialty designs that had been approved in Texas, around 250 of which are usable by the public. Although the majority of license plates in Texas are the plain-vanilla non-specialty plates, it is not uncommon on the Texas roadways to see license plates that make use of one of the approved specialty designs.

Applicants who seek approval of specialized plate designs must pay thousands of dollars to have their designs considered, and people who use the already approved designs pay for the privilege, the proceeds going to various state agencies.

The Texas Sons of Confederate Veterans (SCV) is a nonprofit organization dedicated to preserving the memory and reputation of Confederate soldiers. SCV applied for a specialty license plate that featured the SCV logo, “which is a Confederate battle flag framed on all four sides by the words ‘Sons of Confederate Veterans 1896.’”

When this design was rejected by the Motor Vehicles Board (one of only a dozen or so designs that have been rejected), SCV sued, arguing (successfully in the lower court) that the State’s decision to reject the design on the ground that the content of the design—in particular, the depiction of the Confederate flag—might be offensive to some observers constituted impermissible content- or viewpoint-based regulation of expressive activity insofar as the specialty license plate, while State property, is akin to a forum for speech that the government has created and opened up to people to use to express themselves. Texas, for its part, argues that because the State owns all license plates, and because the State of Texas name appears on all plates, including specialty plates, any expression on license plates constitutes “government speech” or at the very least a hybrid of government speech and private speech. Because the government is a (if not the) speaker in this setting, Texas argues, it necessarily has the authority to accept and reject whichever messages it chooses.

The case raises many fascinating and complex constitutional issues—far too many to meaningfully address in a single column. But in the space below, I use three particular kinds of questions that Justices asked at oral argument to illuminate important and often misunderstood aspects of First Amendment doctrine.

Less Can Be More (Important) Under the First Amendment

Let us first consider Justice Kennedy’s questioning of the SCV lawyer. One of the things Justice Kennedy pointed out is that if Texas is not permitted to exclude Confederate flags (or Swastikas, or other potentially objectionable material) from license plates, it will almost certainly choose to abandon the specialty (and also the vanity) license plate design program altogether, and simply use old-fashioned, plain vanilla license plates. The result, said Justice Kennedy, is that we would end up with less, rather than more, speech, because individual expression that is currently taking place on specialty or vanity plates would no longer be permitted, and people would be forced to resort to things like bumper stickers, which they may not like or make use of as much as specialty plates. “If you prevail,” Justice Kennedy asked SCV’s lawyer, “you are going to prevent a lot of Texans from conveying a message. . . . So in a way, your argument curtails speech?”

Justice Kennedy’s question is actually a profound but rarely explored one, in that the First Amendment’s aversion to content- and viewpoint-based laws may indeed sometimes lead government to enact content-neutral counterpart laws that, quantitatively speaking, restrict far more speech. For example, a law that says “no pro-life rallies in the park after 6pm” is clearly unconstitutional, because it regulates speech on a matter of public concern in a traditional public forum in a viewpoint-based way. But if such a law is replaced with a law (that very well might be upheld) that simply prohibits all rallies in the park after 6pm—a so-called content-neutral regulation of time, place or manner—the result could be an even greater overall reduction in speech.

Of course, it is possible that by forcing government to regulate in a content-neutral way, we may actually make it harder for government to regulate speech at all, so that the end result could actually be an increase in the aggregate level of speech. In the example I gave above, perhaps it would politically difficult to pass a law prohibiting all rallies in the park after 6pm (because many kinds of groups may want to hold rallies, and overcoming the political opposition of all of these groups—as opposed to the merely the pro-life advocates—may not be feasible). If that is true, then striking down the law prohibiting pro-life rallies after 6pm will, in fact, increase rather than reduce the amount of speech.

But oftentimes (as in the SCV case) striking down a law on First Amendment grounds may in fact lead to less speech, but it still can be the right constitutional thing to do. The fact that sometimes we invalidate laws in ways that will create less speech overall tells us that maximizing the aggregate quantum of private speech is not the only thing the First Amendment is concerned with. Preventing the government from distorting the debate, by disabling some points of view, or by locking in majoritarian preferences (as is often the case when “offensive” speech is disfavored) is also an important objective. So too is making individuals feel that government respects them and does not act paternalistically and treat them the way parents treat children by telling them what topics they should be focusing on.

What’s Good for the Goose. . . .

A second line of questioning of SCV’s lawyer, this time by Justice Sotomayor, concerned whether the State should be given the same kind of free speech respect as individuals enjoy. Justice Sotomayor pointed out that that in the Court’s most famous license-plate case to date, Wooley v. Maynard, the majority struck down a requirement that New Hampshire drivers make use of a state-issued license plate bearing the State’s message “Live Free or Die.” Justice Sotomayor then asked: “In Wooley we said we can’t compel the individual[s] to put something on their plates that they disagree with . . . Why isn’t the reverse true for the government [if it doesn’t want to be associated with the Confederate flag]?”

Justice Sotomayor’s symmetry instinct (which assumed arguendo that the Texas specialty license plate regime represents at least a hybrid of government and private speech) is very interesting but ultimately unpersuasive, to me at least. There are lots of constitutional rules that protect individuals that do not protect government in a symmetrical way. For example, a criminal defendant is entitled to have access to all exculpatory evidence in the government’s possession, but the government is not entitled to all incriminating evidence in the defendant’s possession, even though both sides are trying equally hard to prove their case.

I think there is asymmetry here as well. Even though the government can operate as a speaker, it is not a specific beneficiary of the First Amendment, and certainly shouldn’t enjoy all the same First Amendment protections individuals (like the individuals who litigated in Wooley) do. Ultimately, the reasons the drivers in Wooley could not be forced to bear the State’s message were rooted in individual dignity and autonomy aspects of the First Amendment. Institutional and organizational actors, as opposed to individuals, can be forced to be a vehicle for government messages and are relegated to engaging in counter-speech as a way of distancing themselves from any government message they don’t like. This was true in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), a case last decade that upheld (9-0) a federal law that required law schools to allow military recruiters onto campus facilities to recruit students, notwithstanding the law schools’ opposition to the then-existing policy of the military to discriminate against gays and lesbians (“Don’t Ask, Don’t Tell”). Like law schools, the State of Texas does not have the same kind of dignity and autonomy attributes that individual motorists have, and so (even granting that Texas has the authority to act as a speaker) requiring Texas to live with the private message on specialty plates and disclaim any endorsement of the message or design on a specialty plate by adding something like “Views on this license plate do not reflect the views of the State” does not violate the Constitution the same way requiring individuals to promulgate such disclaimers would.

The Relevance (or Not?) of a Profit Motive

A third interesting exchange involved the overridingly important question of whether the specialty plates can properly be thought of as pure (or at least hybrid) government speech at all. The State’s lawyer argued that the fact that the government has retained the right to veto all specialty designs from the get-go makes this a government speech case, but that factor standing alone surely cannot be dispositive. If a public airport withheld for itself the power to ban any leaflets whose message it found unattractive, that would not justify its excluding leaflets in favor of affirmative action while permitting leaflets against it. Control is, as many Justices pointed out, a circular kind of argument about government power. Deciding what is and is not government speech is much more complicated than that.

One potential factor was mentioned by Chief Justice Roberts a few times, and that is the profit motive by the State. Why, he asked, should we view these specialty plates as government expression at all when government’s real goal here was not to raise awareness (about anything) but to raise money? This, too, is an interesting instinct. As with Justice Sotomayor’s question, if we analogize to private individual speech, the government fares better; the fact that a private individual or corporation is motivated by a desire to make a profit does not make his/its expression any less constitutionally valuable: the New York Times newspaper represents classic First Amendment speech even though it is published in order to make money.

But as was true for Justice Sotomayor’s symmetry argument, here too I am not sure we should treat the government the same as individuals. It does seem a bit untoward that the State would raise revenue by charging people thousands of dollars for the privilege of submitting license plate designs, and then reject those whose content it doesn’t like. The idea that the State was (mis)using the specialty-design applicants, and the moneys they paid, for its own monetary gain was one of the most sympathetic aspects of the SCV’s case, which was otherwise not very sympathetic given that the Confederate flag has historically been tightly associated with slavery and insurrection (not to mention the fact that SCV’s lawyer took the position that the State could not, consistent with the First Amendment, reject designs with swastikas on them.)

The opinions that emerge from this case in the coming months could be very interesting.

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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Competing Values in the Conviction of a Woman for Feticide Thu, 09 Apr 2015 04:01:10 +0000 Continue reading →]]> Empathy ConceptIndiana has been making the news lately. In addition to its struggles over legislation concerning conflicts between the rights of LGBT people and religious liberty claimants, the state last month reportedly became the first in U.S. history to sentence a woman to prison for feticide. The woman in question, Purvi Patel, claims that she suffered a miscarriage and discarded the dead fetus (after trying unsuccessfully to resuscitate it), subsequently heading to the hospital for medical care, bleeding heavily. The prosecutor claimed (and successfully convinced a jury) that Patel deliberately and illegally attempted to bring about the death of her fetus but delivered a live fetus, a dependent whom she then neglected. For these crimes, she was sentenced to what amounts to 20 years’ imprisonment.

Competing Narratives

According to Purvi Patel, she miscarried her pregnancy. If she is telling the truth, then her conviction and sentence certainly represent grave injustice.

The prosecutor’s story is quite different. According to the prosecutor, Ms. Patel took drugs (though reportedly, no drugs were found in her system) to try to terminate her pregnancy at 25 weeks in a manner that amounted to “feticide,” defined by Indiana law as occurring when “[a] person . . . knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus . . .” provided that what occurred was not an abortion that complies with Indiana law regulating abortion. In addition, the prosecutor claimed that the fetus was born alive (evidenced by an arguably discredited “float test” that proved there was air in the fetus’s lungs, which might mean that the fetus took a breath after birth). If the fetus was alive at birth, then, the prosecutor contended, Ms. Patel’s discarding of the fetus (rather than, for example, taking it to the hospital) constituted the neglect of a dependent that led to its death.

Indiana is not the only state with a law prohibiting feticide. An overwhelming majority of states have passed such laws, and at least one reason offered for them has been the desire to protect fetuses from violent attacks on pregnant women by third parties. In an old California case from 1970, Keeler v. Superior Court, a man learned of his ex-wife’s former infidelity and pregnancy with another man’s child and went on to attack her and stomp on her belly, stating as he did so, “I’m going to stomp it out of you.” Since the woman in that case did not die, the attempt to prosecute her assailant for murder was a failure, despite the fact that he deliberately killed the late-term, viable fetus of a woman who had every intention of taking her pregnancy to term. This was because the fetus did not qualify as a “human being” within the meaning of the California statute. People of all political stripes could join hands in their disapproval for his getting away with what he did, and the prospect of other similar cases played some role in yielding laws prohibiting feticide.

What makes Ms. Patel’s case different from cases like Keeler is that even if the facts are as the prosecutor claims they are, Ms. Patel was not attacked by a third party. Instead, she—according to the prosecutor—decided to intentionally terminate her own pregnancy, albeit in a manner that did not conform to the laws regulating abortion. To the extent that feticide laws were intended to protect women and their wanted pregnancies against third party violence, the use of the law in this case plainly deviated from that intention.

Empathy for a Viable, Perhaps Sentient Fetus

Let us, however, put aside for a moment the objective of protecting pregnant women from violent third parties. Is it not independently legitimate for the law to aim to protect viable, sentient fetuses from violence, regardless of the source of that violence? The U.S. Supreme Court has said that at some point during pregnancy—viability—a woman no longer has the right to have an abortion. And surely, once a viable fetus has emerged from the womb alive, as the prosecutor in this case claims happened here, there would not appear to be a right on the part of the woman (or anyone else) to secure the fetus’s death by discarding its live body in a dumpster.

Instead, having given birth to a viable fetus, doesn’t a woman automatically become responsible for the care of that fetus? To put the point slightly differently, shouldn’t we care about the viable fetus whom, according to her conviction, Ms. Patel first tried to kill with abortifacient drugs and then discarded as trash without assistance after giving birth to it alive?

One answer to this question is “of course we should care.” To the extent that a 25-week-old fetus is already sentient and thus can experience pain and pleasure, he or she is a being worthy of moral consideration. One could argue (and I and others have argued) that given the enormous invasion of a woman’s bodily integrity that an unwanted pregnancy entails, she still should not be forced to remain pregnant, even when her fetus is sentient and viable. But one could respectably hold a different view, at this late stage in pregnancy, and Indiana law appears to hold that different view—one that Supreme Court precedent permits. Furthermore, if—as her conviction indicates—Ms. Patel’s fetus was born alive, then we are no longer talking about her interest in terminating an unwanted pregnancy at all. We are talking about the interests of a sentient infant-like fetus who was arguably entitled, at the very least, to be brought to a hospital into the able hands of medical practitioners.

I would not dispute that one could legitimately feel empathy for the fetus in this case. But the question remains whether the appropriate way to express that empathy is to imprison Purvi Patel for twenty years for what happened. My thinking is that the answer to this question is plainly no.

The pro-life movement has long attempted to prohibit abortion as an act of murder against an innocent human life. Yet even so, as I discussed in another column, people in the pro-life movement in the United States typically aim to criminalize the provision of abortion by third parties to women rather than criminalizing the acts of the women who are actually having the abortions.

One way of thinking about this distinction the movement draws between providers of abortion and the women who seek their services is that it perhaps reflects a recognition (if a rather minimal one) that a woman facing an unwanted pregnancy experiences great stress and pressure, mitigating forces that mean that she should not be treated as sharing the same culpability as third parties who are not in a similarly pressing situation. That is, even those in the United States who believe that abortion is murder appear to view the circumstances of the pregnant woman seeking a termination as reducing her responsibility and as calling for empathy.

Prosecuting Ms. Patel for feticide in connection with her attempting an abortion (assuming that she intentionally tried to terminate her pregnancy, as alleged by the prosecutor and accepted by the jury) denies Ms. Patel the force of that empathy and the corresponding recognition that she found herself in a painful, traumatic, and difficult circumstance that ought to have carried substantial weight in the decision whether to prosecute her criminally for her actions.

And what about her subsequent decision to discard her fetus in a dumpster rather than bringing it to the hospital? Again, from the perspective of the fetus, if it was in fact 25 weeks old, viable, and sentient, then what happened was a tragedy. But even if the fetus was alive, Ms. Patel was most likely confused and unable to clearly process what she was seeing, if we assume that she had previously taken abortion drugs that she believed would successfully terminate her pregnancy and thus kill her fetus. Ms. Patel was not, in other words, a woman having a home delivery of a baby whom she suddenly decided to abandon and to whom she denied maternal care. Even if we accept the prosecutor’s version of what happened, Ms. Patel was in a vulnerable state and might not have known what, if anything, she could have done to save a being whose state of development would have been visually so alarmingly different from that of a newborn baby. Hearing about what happened to Ms. Patel, on the prosecutor’s account, I cannot help feeling a combination of great sadness for the fetus and empathy for the woman. Prosecuting Ms. Patel strikes me as the wrong thing to have done.

Balancing Empathies

It can be easy to forget that we cannot rectify every injustice with retribution and that retribution can sometimes augment rather than ameliorate injustice. Regardless of how one feels about Ms. Patel’s fetus (and regardless of whether one believes that she tried to have an abortion and/or that the fetus was truly born alive), one can see that Purvi Patel is not a “murderer” deserving of a twenty-year prison sentence. Compounding this sense is the knowledge that the last time Indiana prosecuted a woman for feticide, the target was a pregnant woman, Bei Bei Shuai, who attempted suicide and survived, though the fetus did not. Though certainly a different case, its consideration along with Ms. Patel’s highlights a failure of empathy for women in pain whose circumstances, at the very least, call for mercy rather than the pure retributive impulse that appears to be animating the State of Indiana.

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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Religious Freedom Claims in Private Litigation Wed, 08 Apr 2015 04:01:57 +0000 Continue reading →]]> Gavel StrikeControversy erupted last week over the new Indiana Religious Freedom Restoration Act (or RFRA) and a bill in Arkansas that, as Marci Hamilton explained here on Verdict, would go even further. Critics charged that the laws would license discrimination against LGBT persons by individuals and businesses claiming that serving them violated their religious conscience. In rapid response to the backlash, Indiana amended its law and Arkansas produced a substitute bill that the governor signed. The new state laws appear to be more modest, providing a right to religious exceptions that mirrors the federal RFRA.

But the charges that were leveled against the earlier versions of the Indiana law and the Arkansas bill remain relevant for other purposes—including how courts should resolve ambiguities in the federal RFRA and other state RFRAs.

Before they were superseded, the controversial Indiana and Arkansas measures drew criticism based on two particulars. First, they expressly allowed religious claims by for-profit businesses. Second, express statutory language authorized their invocation in private litigation, even when neither the state nor any governmental entity is a party.

Those were indeed noteworthy features of the superseded Indiana and Arkansas measures, but only because the controversial features were express. The federal RFRA contains no express language protecting for-profit businesses, but last year in the Hobby Lobby case the Supreme Court found that such protection was implicit, even for a corporation. Other state courts may interpret their state RFRAs in the same way.

Nor would they be obviously wrong to do so. As Justice Alito explained in his Hobby Lobby majority opinion, there are at least some circumstances in which for-profit businesses can legitimately assert religious claims. He cited a 1961 case involving a kosher market. On average, there may be less reason to grant religious exemptions from general laws in a business setting than in a personal one, but there can be strong claims for religious exemptions even in the realm of the market.

What about the objection that religious freedom claims should not be available in purely private litigation? Here too, the pre-amendment Indiana law and the failed Arkansas bill were unusual mostly in what they said expressly.

The New Mexico RFRA expressly applies only to religious burdens imposed by “a government agency,” so that state’s supreme court understandably held it inapplicable in private litigation in the highly publicized Elane Photography case. But other state RFRAs and the federal RFRA do not clearly state whether they apply in private litigation. Accordingly, some state courts interpret their generally worded RFRAs to apply in private litigation, while the issue appears to be open under the federal RFRA.

Should courts interpret a general RFRA to apply in private litigation if the statute is silent on the matter? That turns out to be a quite complicated question.

State Action and Private Litigation

To see why, we must distinguish between a simple-minded objection to applying general RFRAs in private litigation and two more subtle objections.

The simple-minded objection rests on a confusion about the so-called state action doctrine. With the exception of the Thirteenth Amendment’s ban on slavery, the federal Constitution only grants people rights against the government. State constitutions generally follow the same pattern. If a law forbids you to publish an op-ed criticizing the government, the law violates your right to freedom of speech. By contrast, if the editor of a privately owned newspaper rejects your op-ed because she disagrees with it or thinks it is poorly written, you have suffered no violation of your free speech rights. Accordingly, when someone alleges that her constitutional rights are violated, she must show that the government violated her rights.

RFRAs are statutes, however, and statutes often provide private parties with rights that are enforceable against other private parties. For example, a patent is a statutory grant of the exclusive right to produce a product, enforceable in court against anyone who infringes the patent.

More directly to the present point, federal, state, and local anti-discrimination laws grant private parties rights against other private parties. Although a widget-making company that refuses to hire Mormons does not violate the Constitution, it does violate Title VII of the Civil Rights Act of 1964, and an individual Mormon denied a job under the company’s illegal policy can sue to enforce his or her statutory rights. Thus, there would be nothing inherently illogical about a state law that extended religious rights to private parties and rendered them enforceable in purely private litigation.

Nonetheless, RFRAs are styled as “Restoration Acts,” and what they aim to “restore” is the constitutional right to free exercise of religion that was weakened by the U.S. Supreme Court in its 1990 peyote decision. Because a RFRA restores a constitutional right that only applies against the government, it is natural to assume that a RFRA should only be available in litigation against the government.

Yet that assumption may be mistaken. Constitutional rights that only protect people against government action can nonetheless routinely be invoked in private litigation. A few examples illustrate the point.

Reverend Jerry Falwell sued Hustler Magazine for intentional infliction of emotional distress after the latter published a lewd depiction of Falwell. In the lower courts, Hustler unsuccessfully argued that state tort liability should be unavailable for what was obviously a joke. The magazine won a unanimous decision in the Supreme Court on the ground that the First Amendment protects jokes. Even though no governmental entity was a party to the case, Hustler could invoke the First Amendment because the government was present in the case: the common-law tort of intentional infliction of emotional distress created the liability that the First Amendment limited.

Other examples abound. In Orr v. Orr, the Supreme Court ruled that an Alabama statute permitting ex-wives but not ex-husbands to obtain alimony payments violated the Equal Protection Clause. Only private parties were involved in the case but there was no doubt that the constitutional argument was available because, as in Hustler v. Falwell, the government stood in the background as the source of the unconstitutional obligation.

Can religious freedom claims arise in private litigation that does not involve a religious claimant seeking a right to discriminate? It does not commonly happen but it is certainly possible, as a hypothetical example illustrates.

Many RFRA claims involve disputes between churches that wish to expand and local governments that forbid them from doing so, either through historic preservation laws or zoning laws. Suppose that instead of requiring approval from a government board, a local ordinance provides that any substantial expansion of an existing building requires consent from surrounding neighbors. Now suppose that a church that wishes to expand cannot obtain such consent from one or more neighbors. If the state RFRA would allow a claim against a zoning board, there is no obvious reason why it should not also allow a claim against the objecting neighbor. Even in the case of private litigation between the church and the neighbor, there appears to be government action: the local ordinance that grants the neighbor the veto power over the church expansion.

Accordingly, one might be tempted to conclude that absent language inconsistent with the invocation of a RFRA in private litigation—as in the New Mexico law—courts generally ought to treat a RFRA as applicable to private litigation. But now we come to the more subtle objections.

State Action in RFRA Cases

First, even though the simple-minded state action objection fails, there is a better state action objection. This better objection takes note of how a RFRA functions differently from nearly every other rights-conferring legal rule.

When Hustler invoked the freedom of the press against Falwell, it objected that the Virginia tort rule was defective in permitting a public figure to prevail on a claim of intentional infliction of emotional distress based on a subjective standard that afforded insufficient protection for free speech. When Mr. Orr resisted his alimony obligation, he complained that the Alabama statute favoring women over men denied him the equal protection of the laws. In these and many other situations, the party invoking a rights provision in private litigation argues that some legal rule or standard violates his, her, or its rights.

By contrast, a RFRA claim does not challenge any rule or standard. The whole point of a RFRA is that a rights-neutral law may substantially burden someone’s ability to exercise his or her religion in particular circumstances; if so, RFRA authorizes an exception unless the application of the neutral law is narrowly tailored to advance a compelling government interest.

Once we understand that granting a RFRA-based exception to a general rule or standard does not challenge that rule or standard, we can also see that the presence of the state in private litigation under RFRA is of a relatively trivial sort: The state is present only in the sense that a court will enforce or not enforce the private parties’ rights and duties. But with a couple of exceptions that are generally regarded as idiosyncratic, case law does not regard judicial enforcement of private rights under generally valid rules and standards as satisfying the state action requirement.

Thus, faced with a RFRA that does not expressly resolve the private litigation question, courts might legitimately conclude that the legislature that enacted the RFRA did not mean to disregard the longstanding doctrine regarding state action.

Burdening Third Parties

Another subtle objection begins with the fact that courts are reluctant to grant religious exemptions from general legal obligations where a third party will bear the brunt of the exemption. That is why, in the Hobby Lobby case, Justice Alito emphasized that the business owners’ religious objections to providing health insurance covering forms of contraception they regarded as tantamount to abortion could be accommodated without depriving their employees of the insurance coverage. The insurer could simply provide that coverage directly. And because contraception insurance lowers aggregate health costs, the insurer would not be burdened either.

In the wake of Hobby Lobby and follow-up cases, some commentators questioned whether the Court’s solution was really the win-win proposition that the majority claimed it was. Furthermore, the Hobby Lobby Court did not say that religious accommodations are never available when they impose burdens on third parties. Accordingly, it would be premature to read Hobby Lobby as firmly establishing that the federal RFRA only requires cost-free accommodations.

Nonetheless, Hobby Lobby and similar state cases suggest that courts should hesitate before construing a RFRA to authorize an accommodation for religion that substantially burdens third parties. That principle can sometimes be implicated in litigation between the government and a religious claimant, as the dispute in Hobby Lobby itself indicates. But the potential for substantially burdening a third party is always present in private litigation in which one private party seeks an exemption from a civil obligation to another private party.

Thus, a court construing a general-purpose RFRA might conclude that to avoid burdening third parties with the costs of accommodating religious beliefs, the RFRA ought never to be available in private litigation.

Beyond the two considerations identified above, the particular language and legislative history of the federal RFRA and each state RFRA will bear on the question of whether to treat it as applicable in private litigation. One thing that is clear is that last week’s developments in Indiana and Arkansas raised but did not resolve important questions with which other legislatures and courts around the country will likely struggle for years to come.

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
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Shhh! It’s Time for Criminal Justice Reform. Keep Race out of It. Mon, 06 Apr 2015 04:01:00 +0000 Continue reading →]]> A black man with hands outside the bars of a prison cellThere is no word in the English language that captures the quintessentially American practice of debating an issue without mentioning the one thing that everyone knows is central to the issue’s resolution. We have expressions for it, like “the elephant in the room.” But we really ought to have a word, since the practice is so common. And it’s front and center when it comes to criminal justice reform.


Much of the talk about changes in the criminal justice system nowadays refers to the work of the Justice Reinvestment Initiative (JRI), which is a public-private partnership between the Department of Justice, PEW Charitable Trusts, and the Council of State Governments (CSG).

Typically, it works like this: A bipartisan coalition at the state level—say, for instance, the governor, the attorney general, the chief justice, and the ranking Democrat and Republican in both chambers—secures a grant from DOJ to hire technical consultants from PEW or CSG, who study the local landscape and recommend data-driven reforms that will improve performance and save money without sacrificing public safety. That, at least, is the theory.

JRI has plenty of critics. Many people complain, quite rightly, that the reforms do not go nearly far enough to reverse the wreckage caused by two generations of irrationally punitive criminal justice policy. Among those who follow this most closely, one often hears the expression, “low hanging fruit.” In addition, the process focuses exclusively on the back end of the criminal justice system (sentencing and corrections) and ignores entirely the problems at the front end (policing, prosecution, and indigent defense), a disconnect that is a particular concern of mine.

Still, more than 30 states have followed the JRI path and implemented some type of legislative reform. And let there be no doubt: these reforms have helped reduce prison populations in a number of states, sometimes significantly.

But what is JRI’s goal? Take a look at its website, and you will learn that “Justice Reinvestment is a data-driven approach to improve public safety, examine corrections and related criminal justice spending, manage and allocate criminal justice populations in a more cost-effective manner, and reinvest savings in strategies that can hold offenders accountable, decrease crime, and strengthen neighborhoods.”

Well, I suppose no one can disagree with a program that will “hold offenders accountable, decrease crime, and strengthen neighborhoods.” But what about correcting racial disparity? What about the fact that people of color are overwhelmingly more likely to end up in jail or prison than whites? Or that perhaps as many as one in four black men will spend time behind bars, or that one in eleven are currently under some form of correctional supervision? What about the evidence of implicit (and sometimes explicit) bias that operates throughout the criminal justice system? Doesn’t JRI have anything to say about that?


In fact, across the entire JRI site, including sections on the “Goals and Outcomes of Justice Reinvestment,” “The Justice Reinvestment Process,” and “Key Requirements for All Jurisdictions Interested in Participating in JRI,” the words “race,” or “racial” (as in “racial disparity”) nowhere appear. Even if you click on a link to a “JRI State Assessment Report,” a comprehensive survey of statewide JRI reforms released by the Urban Institute in January 2014, all reference to race is conspicuously absent. The focus instead is on “data-driven,” “cost-effective” “strategies” to “reduce spending on corrections and increase public safety.” With only occasional exceptions, the same is true for PEW and CSG.

This is clearly no accident. “Right on Crime,” for instance, is a coalition of prominent conservatives who have joined to support criminal justice reform. Its “Statement of Principles” makes no mention of race or racial disparities in offending, sentencing, or prison populations. Instead, it advocates the application of “conservative principles” to achieve “a cost-effective system that protects citizens, restores victims, and reforms wrongdoers.”

Indeed, in the rare instance when race has been mentioned at all, it has been purposely described as irrelevant to the reforms. Recently, for instance, CSG published a report on the changing racial composition of the prison populations in Georgia, North Carolina, and Connecticut in the wake of JRI reforms. In each state, the extent of racial disparity in the prison population has declined, and in the latter two states, the improvement has been fairly dramatic. Admissions to prison in North Carolina among blacks and Latinos fell 26 and 37 percent, respectively, between 2011 and 2014. In Connecticut, the total number of people in prison fell by nearly 17 percent between 2008 and 2015, but the drop in the number of black and Latino prisoners was three times as steep as the decline in the number of white prisoners.

You’d think CSG would shout these numbers from the rooftop. Yet the authors of the study were quick to note that addressing racial disparity was not the objective of the JRI reforms. “State policymakers designed their respective reforms in these three states to increase public safety and to reduce spending on corrections,” and they carefully note that “any finding of a causal relationship between the reforms and the changes in the states’ prison populations is premature.” In short, whatever improvements one may observe in racially disparate outcomes is treated as icing on a cake that was baked for an entirely different purpose.

Other examples could be added, but you get the idea. And in case there were any doubt that this is a deliberate strategy, contrast this report with another written by CSG just a few months ago on racial disparities in school discipline, entitled “You Can’t Fix What You Don’t Look At: Acknowledging Race in Addressing Racial Discipline Disparities.” The entire report is dedicated to developing strategies for “a race-conscious approach to intervention, as a way of beginning to frankly discuss and directly address racial disparities.”

But prominent criminal justice reformers don’t want a “race-conscious approach,” and have no desire for a discussion, frank or otherwise, of racial disparities. The narrative that has taken shape among the most prominent institutional actors deliberately makes no mention of race, despite the fact that everyone recognizes the racially disparate impact of the American criminal justice system.

And here’s the thing: this might be precisely why it’s working. I was recently in Alabama having lunch with Republican State Senator Cam Ward, who is a leader in the JRI legislative reforms that are underway in his state. I asked him why reformers in Alabama weren’t talking about race. He dropped his voice, glanced quickly around the restaurant and said, “If we make this about race, we’ll lose the narrative.” He’s absolutely right.

The sad fact is that for most whites, evidence that blacks are overrepresented in prison makes them more fearful of crime and less likely to favor reform of the policies that produced this result. For most whites, in other words, making a case for criminal justice reform based in the first instance on evidence of racial disparity is exactly what not to do. (The study that found this result is available here).

And this helps explain why JRI, PEW, CSG, and so many other key actors in the reform movement assiduously avoid all mention of race: they have come to believe it’s counterproductive. Instead, they have developed a bureaucratic narrative, to which they scrupulously adhere, of “cost-effective,” “data-driven,” “strategic” reform that “increases public safety” even as it “holds offenders accountable.”

A number of people are deeply disappointed by this whitewashed narrative. They consider it appalling that reform is couched in the cold language of actuarial efficiency, and that the moral bankruptcy of mass incarceration—what Michelle Alexander calls “the New Jim Crow”—cannot be denounced for what it is. By contrast, when a mosque is defaced, no one thinks the proper response is to fret about the effect on property values.

Critics also point out, with considerable justification, that the current narrative relieves white America of the obligation to confront its responsibility for the programs and policies—like the war on drugs and disparate sentencing for crack and powder cocaine—that contributed so much to create these disparities in the first place. Likewise, they note, again with great force, that an obsessive focus on “data-driven,” “cost-effective” reform makes it too easy to ignore the morally urgent obligation to repair the socially, culturally, and economically devastated environments where crime is so rampant.

I am sympathetic to these criticisms, as are many of the people involved in various aspects of criminal justice reform. No one should think, for example, that the Obama/Holder Justice Department doesn’t get it. But many reformers have made a conscious, pragmatic decision to get behind the colorblind narrative because it’s finally allowing for some progress.

Some of these reformers have toiled in these fields for decades, during which time mass incarceration grew only worse. Now, finally, there is a possibility for change, and they would rather endorse an incomplete narrative that produced modest improvements than a complete narrative that accomplished nothing.

I cannot fault them for their decision, but on balance, I have to believe that burying our head in the sand is not a sign of progress. I think the authors of the CSG report on school discipline had it right when they observed:

Racial disparities are not easy for Americans to confront, in large part because of a longstanding reluctance to talk about issues of race and ethnicity frankly and openly. . . . [But if] we are to undo the racial inequities that continue to plague us, we must find constructive ways to talk about them and intervene constructively and consciously to end them.

Fortunately, there are people working on creating this constructive and conscious narrative; their work will be the subject of my next column.


After this column appeared, I was contacted by Michael Thompson, the Director of the Council of State Governments, who took issue with several of my observations. We had what I thought was a productive conversation about the limits and promise of criminal justice reform. The upshot of it all is this:

First, the study on racial disparities in school discipline that I cited in the column was not written by CSG. It was re-posted on their website at a page with the CSG logo, but was in fact prepared by The Discipline Disparities Research to Practice Collaborative. My apologies to both organizations for that error. Thompson asked me to stress, however, that CSG has authored a number of other reports on racial disparities in school discipline, just not this one.

Second, Thompson thought I was overly critical of CSG in my remarks about their report on the changing racial composition of the prison populations in Connecticut, North Carolina, and Georgia. Thompson interpreted my remarks as a call for CSG to go beyond the limits of their research and to stress a causal connection that has not yet been proven. That was not my intent and I have no desire to see CSG argue a causal connection that cannot be supported by the evidence.

Instead, my point was that CSG has consistently omitted race and racial disparity as a reason for criminal justice reform, even in a report like this, which was otherwise about race. Thompson agreed with this, and explained that their work is bounded by the nature of the request put to them by state legislators, who have likewise steered clear of race. I’m sure that’s true, which was the point of my column.

The challenge, as I indicated in my initial column, is to develop a narrative about the meaning and direction of criminal justice reform that does not ignore race, but incorporates it into a productive conversation that transcends black and white. Thompson and I agree this is not the current narrative of JRI.

Joseph Margulies is a Visiting Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.
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Getting Answers on Shaming and Related Issues Fri, 03 Apr 2015 04:01:44 +0000 Continue reading →]]> Shame and BlameFollowing up on my prior column based on two recent books on shame and public shaming, I was curious about the legal implications of this subject. Accordingly, I sought out Bennet Kelley of the Internet Law Center, who agreed to address my questions. I first discovered Bennet when working on my book Worse Than Watergate (2004)—he has written for the Huffington Post for years and shared my concern about former President George W. Bush’s propensity to dissemble about important matters. Then, when I was publishing my most recent book, The Nixon Defense, Bennet invited me to do his weekly radio show, Cyber Law and Business Report where he discusses topics relating to cyber law, although so far we have been unable to schedule it. Here is our email exchange, and it contains information I was unaware of and appreciate having:

Q: Can you summarize in a general way the nature of privacy that a person might have online if he or she is active on social media? Do we give up any privacy rights by opening social media accounts—in addition to information that social media companies might glean from our accounts?

A: By its very nature engaging in social media involves relinquishing some privacy. How much we give up is a factor of the privacy settings of the site and what and how we choose to post information. The important question is do consumers fully understand this when they engage a social media site. My belief is that the answer to this question is both “yes” and “no” since few people actually read site terms. For example, in 2010, a gamer website pulled an April Fools prank where they changed their terms to give consumers a choice of receiving $10 or granting the site the “option to claim . . . your immortal soul,” and only 12 percent chose the cash.

Q: Following up on the situation confronting author and journalist Jon Ronson (via YouTube), who had his identity used by three academics who had their own Jon Ronson Twitter account posting messages generated by algorithms, would the real Ronson have a remedy in the United States?

A: In California he would since the state passed the first in the nation “e-personation” law which outlaws credible attempts to impersonate someone online for purposes of harming, intimidating, threatening, or defrauding another person The law has both criminal penalties and enables a victim to pursue civil remedies for damages or an injunction.

Q: Let’s say you are not a public person and your only public activity is your social media accounts on Facebook and Twitter (or wherever). Can others on Facebook and Twitter attempt to shame you over what might be totally innocent comments that the shamer has chosen to distort or misread? Is there any legal remedy? Does shaming at some point become cyberbullying, if so, when?

A: In 2011, I tweeted about some of the lesser known candidates running for President, one of whom was Sofia the Logos who claimed she was crucified in 2003 by “the Armenian mafia” and is the reincarnation of St. Mary Magdalene.” (Surprisingly she did not win.) I have a stalker who spun that to mean that by quoting such a statement I was adopting it and therefore was an enemy of the Armenian people.

Current law provides civil remedies for publishing false information, with claims for defamation or false light, but damages are difficult to prove, making it very expensive to pursue. If it gets to the point that it involves threats of physical harm or is causing extreme emotional harm then it becomes harassment and a victim may obtain a restraining order.

Q: How have you dealt with your stalker?

A: She was the defendant in a cyber-harassment case I brought in 2009 and will soon be tried for multiple counts of criminal harassment and restraining order violations.

Q: Let’s say you have no social media account whatsoever, that you are a totally private person, but you have fallen on tough times and your neighbors want you to repair and paint your house, and when you do not respond they launch a vicious anonymous attack against you that you learn about from others.

A: This is something all of us face every day. One person who knows even the slightest bit of information about us can upend our lives based on a viral campaign that includes something we did or did not say or do.

In China there is this phenomenon known as the human flesh search engine where social media is invoked to identify and shame someone who may have committed some perceived wrong. Once you are charged and convicted in one swift click, the wrath of social media includes death threats and pressure on your employer to fire you.

Legally it would be possible here in the United States for such a victim to obtain a restraining order or call law enforcement, but whom do you sue or arrest when your tormentors are in the thousands and all you know are their email addresses or fake user names. This requires some effort.

Q: Is there something similar to the “human flesh search engine” operating in the United States? Any examples? And are you saying there is no legal remedy for such aggravated activity?

A: You see it from time to time here, like the disturbed Florida woman who foolishly posted a racist rant towards Dunkin’ Donuts employees, the “MySpace Mom” who pushed Megan Meier to suicide, or the women speaking out against sexism in the video game industry who rightly or wrongly quickly feel the wrath of the “Twittersphere” which may include threats of harm.

The Gamergate controversy has highlighted the failure of the law to properly respond in such cases and Congresswoman Katherine Clark (D-MA), who represents one of the victims, has publicly chided the Justice Department for not doing more to prosecute these types of abuses. Their certainly are civil remedies available to victims, but I think it would send a huge message if law enforcement were more robust in this area.

Q: Setting aside for the moment Section 230 of the Communication Decency Act (CDA) which protects Internet Service Providers (ISPs) from content placed on their services by others, are there any viable legal actions against those who use the Internet to attack others?

A: You have to be creative. For example I am currently drafting a RICO and SPAM complaint against a band of online fraudsters who have bombarded my client with malware. This approach allows us to recover substantially more damages and fees than we would in a simple defamation or false light case.

Q: With regard to Section 230 of the CDA is there a need to change that law so if ISPs are given formal notice that they are publishing false and defamatory material that they be forced to remove it?

A: Among Internet legal authorities, Section 230 is considered by many to be the First Amendment or Magna Carta of the Internet and should never be touched. I think if something is adjudicated to be defamatory it should be taken down. Beyond that we should create better incentives to address online abuse by creating civil penalties and awarding attorneys’ fees in cases of serial defamers.

Q: Does participation in social media where a person vigorously debates public issues result in that person becoming a “limited public figure” under current defamation case law? Do the anti-SLAPP statutes come to play in seeking a legal remedy against abusive Internet conduct?

A: This is an evolving issue and one that remains somewhat unclear, but courts are finding that blog posts and online reviews can raise matters of public interest. In the recent Crystal Cox case, the Ninth Circuit reversed a ruling that only traditional forms of media and not bloggers were entitled to First Amendment protection.

The availability of an anti-SLAPP motion is something a harassment plaintiff must consider before filing any action. Fortunately and unfortunately, the behavior of the worst online offenders is usually sufficiently extreme so as to survive such a motion.

Q: When a person is inappropriately or disproportionately shamed—or excessively attacked by Internet vigilantes—how do you recommend they deal with the problem of all that negative information forever being on the Internet? Do reputation management companies effectively fix the problem, and if they do how do they do it?

A: It often is a multi-faceted approach that includes a legal response, online remediation which includes everything from creating more content to working with SEO [search engine optimization] and reputation repair companies to push the good content up and bad content down in search results; and (where appropriate) a media response to either draw sympathy for the victim or shame the shamers.

Q: Has American law on privacy and defamation kept pace with the Internet? Is there any country whose laws are keeping pace with the problems?

A: Law is reactive, so it will always lag somewhat as problems emerge. At the same time, I do agree with University of Maryland Law Professor Danielle Citron that we have been slow to respond to cyber harassment and even wrote a Huffington Post column entitled The Unbearable Unawareness of Cyber Harassment in 2010.

Even in privacy, the rapid changes in areas like behavioral targeting and big data have been a challenge for policymakers to comprehend and address.

One thing that I would stress is that while existing laws can often be used to address many of these problems, one should not underestimate the normative value of enacting legislation declaring that this city, state, or even nation will not tolerate certain conduct.

As to how we compare with other countries, while I am not an expert on European law, I think the United States has consistently been the first to address many of these issues as they emerged. We may not have always got it right, but I am not sure of another jurisdiction that can say it has done better.

John W. Dean, a Justia columnist, is a former counsel to the president.
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How Breast Exams Are Like Dog Sniffs Thu, 02 Apr 2015 04:01:22 +0000 Illinois v. Caballes, in which he opined that the possibility that dogs would incorrectly indicate the presence of narcotics and lead to an invasive search meant that such dog sniffs constitute searches for Fourth Amendment purposes. Continue reading →]]> Drug DogsOn March 17, the New York Times ran a story about the troubling inconclusiveness of breast biopsy results. Some results are clear and generate a reassuring consensus among pathologists examining the tissue. But for “grey area” results, some doctors find reason for alarm and thus for more tests and procedures, while others believe that all is essentially well. In this column, I will compare this phenomenon of ambiguity-generating medical tests with a seemingly unrelated phenomenon that surrounds dog sniffs for narcotics. I will suggest that when a test’s results are less than definitive, we may have a reason to avoid taking the test in the first place, even when the test itself is relatively uninvasive or innocuous on its own.

Medical Screenings

A number of years ago, I remember hearing about a traveling van that would allow free preliminary screenings for breast cancer and possibly other sorts of cancers. My reaction to the idea of this van was strong and unequivocal—I would not take advantage of the free offer, because of something known in statistics circles as “Type I errors.”

Since screening devices are rarely even close to perfect, they will predictably generate two different kinds of errors (and their calibration can affect which error predominates). Type I errors, also known as “false positives,” will identify a target as having the condition in question even though she does not in fact have it. A highly sensitive metal detector, for example, might falsely indicate that a plastic zipper contains metal (perhaps because a tiny piece of metal once came into contact with the zipper). A highly sensitive test for cancer might likewise indicate that someone has cancer when she does not.

A second kind of error is a Type II error. This type—also known as a “false negative”—occurs when a screening device misses the presence of the condition for which it is screening in a particular target. The metal detector, for instance, might fail to identify the metal weapon that has entered the screening device.

Neither of these errors is desirable, of course, but we make calculated decisions to prefer one type over the other, depending on the context. In criminal trials, as a policy matter, we strongly favor Type II errors, and we express that preference by asking jurors to bring back a “not guilty” verdict even if they are convinced that the defendant is probably guilty of the crime charged, so long as the evidence does not yield confidence of his guilt beyond any reasonable doubt. This preference for Type II errors reflects the normative judgment that it is far better for a guilty person (or even ten guilty people) to go free than for an innocent person to be convicted and punished.

We make a different judgment call in civil cases and allow for close to numerical parity between Type I and Type II errors by applying a “preponderance of the evidence” standard, whereby plaintiffs prevail if the odds of their being right even slightly outweigh the odds of the defendants being right.

The cancer screening van that I mentioned earlier, as far as I could tell, would strongly favor Type I errors—false positives—if only to avoid liability for mistakenly giving someone with cancer a clean bill of health. As a result, my expectation, upon exiting the screening, would be to hear something like the following speech: “Our tests show that you may have cancer in one of several locations in your body. These tests are not conclusive, so there is no reason to panic or to be alarmed. Our recommendation is that you see a physician and show him or her these results so that your doctor can pursue additional tests or screenings, where appropriate. Such tests might include X-rays, fine-needle aspirations, or biopsies, etc.”

I could then choose either to ignore what I had just heard or subject myself to a battery of time-consuming, invasive, painful, frightening, and expensive tests. The one thing I could not do would be to go back to my previous state of blissful ignorance (in some relevant ways similar to my new state of high-anxiety ignorance). The screening would have robbed me of the option of remaining in that state.

Dog Sniffs and Justice Souter

What does any of this have to do with dog sniffs for narcotics? To understand the connection, we need some background in the Fourth Amendment and dog sniffs. In the most recent case on the topic, Rodriguez v. United States, the United States Supreme Court is currently considering whether lengthening a completed routine traffic stop for a brief narcotics dog sniff violates the Fourth Amendment right against unreasonable seizures. I discussed Rodriguez in an earlier column. The case focuses on the freedom from unreasonable seizures rather than unreasonable searches because the Court has already held, in Illinois v. Caballes, that a dog sniff of a car for contraband does not constitute a “search” of the car and therefore triggers no Fourth Amendment protection against unreasonable searches. The reason, explained the Court, is that exposing the fact that a car does (or does not) contain contraband reveals no private or personal matter in which anyone holds a reasonable expectation of privacy.

Justice Souter dissented from the Court’s opinion in Caballes. He argued in his dissent that dogs are not infallible and that therefore, on occasion, a dog will alert to the supposed presence of contraband and thereby lead police to perform an invasive search (either with a warrant or in the presence of an exception to the warrant requirement such as an exigent circumstance), and it will turn out that the person who experienced this invasive search was in fact not in possession of contraband. For this reason—the worry, in effect, about Type I errors in the dog sniff process—Justice Souter contended that a dog sniff should be classified as a Fourth Amendment search that should therefore occur only in the presence of some level of individualized suspicion (such as probable cause).

When I have taught Caballes in my Criminal Procedure Investigations course, I have been quite critical of Justice Souter’s analysis here. To determine whether a dog sniff for contraband is or is not a search, I have explained, the fact that dogs are fallible is irrelevant, as is the fact that a search will likely follow a dog’s positive alert.

No one is infallible, I would maintain, including human informants, and the question of how accurate or inaccurate dog sniffs might be, I would propose, goes to whether a dog’s positive alert to narcotics is enough, on its own (or maybe even coupled with other evidence), to justify a search, just as the proper question in considering the fallibility of human informants is whether the informant’s statement is enough, either alone or coupled with other evidence, to justify a search, not whether questioning a (necessarily fallible) human informant constitutes a “search” of the suspect being investigated (which it does not).

Though I still think this is the most logical way to think about Caballes and dog sniffs, I have become more sympathetic to Justice Souter’s position as I have thought about his concerns in the context of the uncertain medical screenings for cancer and other conditions that seem to be proliferating.

There is a momentum that gets going once we get a positive result from a test, whether it is a cancer screening with a high rate of false positives, or whether it is a positive alert for narcotics from a (fallible) dog working with a police officer. When the positive result comes, it is natural and expected that we will want to do further, and probably more invasive, tests, to find out whether or not there is “something there.”

Once a positive result comes back from a mammogram or a biopsy or a Prostate-Specific Antigen (PSA) blood test, it may feel affirmatively neglectful not to follow up with more invasive investigation. And likewise, once a dog alerts to narcotics, it may seem positively irresponsible for the police to ignore the alert and do nothing to find out whether in fact there are drugs (and in what quantity) in the car to which the dog has alerted.

If this is true, then Justice Souter may have a point. Just as many women might now choose to forgo mammography or other imperfect cancer screening (and just as many men might choose to forgo PSA tests), to avoid falling down the rabbit hole of biopsies and potentially unnecessary and disabling surgeries and treatments, Justice Souter may want us to forgo the dog sniffs, at least absent a level of individualized suspicion that would justify a real search, thereby avoiding a similar rabbit hole of highly invasive searches of property that will almost inevitably follow a positive alert from a dog.

The problem with screening devices with a high (or even a substantial but not especially high) frequency of Type I errors is that they seem much more innocuous than they actually are. They seem to be just the single test (perhaps a blood test or even a minor biopsy) or a dog’s quick walk around a vehicle, but they rarely if ever end there if the result is positive. Given this fact, Justice Souter (in the context of dog sniffs) and I and others (in the context of medical screenings) might want to treat that first, seemingly innocuous, step as the whole staircase that it may rapidly become and approach it with care.

For medical tests, this could mean avoiding many screenings in the absence of either symptoms or some other reason to believe there is a problem. And for dog sniffs, it could mean requiring some independent, articulable suspicion (or probable cause) beforehand. Such moves could potentially serve us well by reducing the considerable collateral harm caused by the (foreseeable) Type I errors occasioned when we apply screening devices promiscuously, in contexts in which we have no pre-existing reason to believe that there is anything to be found.

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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