Verdict Legal Analysis and Commentary from Justia Thu, 27 Aug 2015 04:01:59 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no Top-free Rights for Women: A Showdown in Manhattan Thu, 27 Aug 2015 04:01:59 +0000 Continue reading →]]> ToplessA battle over whether topless women with body paint who call themselves “desnudas” can solicit tips in Times Square—and whether they might be soliciting them too aggressively—might raise real legal questions; it certainly raises political hackles. In a weak moment, Mayor DiBlasio even threatened to rip up the pedestrian plaza where they have stationed themselves rather than allow them to continue appearing.

But while the controversy over the rights of the desnudas goes on, a separate, but related, protest has surfaced. This one raises no complicated legal question about whether soliciting tips (but not otherwise charging) transforms a non-commercial activity into a commercial one, nor whether the topless women might be engaged in an artistic performance protected by freedom of expression. It is just a few dozen women marching with signs, but without shirts, to support the right of women to bare their breasts in public—a right clearly recognized under New York law. Yet this gathering also drew surprised onlookers (many with video cameras), rampant discussion on social media, and a long article in the New York Times. This reaction is the product not only of a strong social norm that women’s breasts should be covered in public, but also of a widespread misperception about the state of the law.

Public Nudity Laws and the Female Breast

There are many misconceptions about the exposure of female breasts in public. People tend to think the laws are more restrictive than they really are. To take one example, breastfeeding women are routinely ordered to leave public and private locations despite express statutory protection for their conduct (see examples and analysis here). And the New York City police recently had to be educated about the laws of their own jurisdiction because they kept arresting the same woman for conduct that is not against the law: wandering topless around the streets of New York City.

So what is the law of female toplessness in the United States?

Laws regulating public nudity focus primarily on mandating the concealment of genitalia from public. But even that universal animating principle does not produce uniform laws across different jurisdictions. The Model Penal Code criminalizes only exposure of genitals, as do many state laws. Other states refer vaguely to “private parts,” or some other equally ambiguous designation. But not all indecent exposure laws include blanket prohibitions; some only prohibit nudity accompanied by “lewdness”—behavior designed to create, or the product of, sexual arousal.

In California, for example, simple nudity is not a crime. The exposure of “private parts” is criminal only if it’s willful and lewd. And, according to the California Supreme Court, a lewd act is one in which the individual “not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.” In that case, In re Smith, the court reversed the indecent exposure conviction of a man who took off his clothes at a rarely used beach and fell asleep. His “mere nudity,” though it displayed the full monty, was not a crime. (In San Francisco, nudists are now required to place a towel down before sitting on park benches or city buses. The origins of the relatively new ordinance are discussed here.)

What about the female breast? The laws that criminalize the exposure only of “genitalia” are generally interpreted to allow exposure of the female breast. Some indecent exposure laws specify that the female breast does not fall within the prohibition. Laws with vaguer designations and no specific language about the breast have been interpreted in different ways. At least some have ruled that a prohibition on the exposure of “private parts” does not include exposure of the female breast.

If one were to generalize about this patchwork of laws, one might say that female toplessness in public, in general, is not a crime in most states. But there is a fairly strong social taboo against it. Bare breasts tend to be associated with two activities: breastfeeding and adult entertainment. Fights over toplessness at strip clubs and the like tend to be about zoning—where those businesses can be located—rather than about the toplessness per se. Toplessness in that setting is unlikely to run afoul of even a broad indecent exposure law because those laws tend to be restricted to public places and places where other people are present and likely to be offended. Those that frequent strip clubs are not likely to fall in that latter group.

Public breastfeeding has had a controversy all its own—one that has led, over the last decade or so, to the enactment of specific laws to protect breastfeeding women from being charged with indecent exposure when they breastfeed in a public place or in a place, such as a store or an airplane, that is generally open to the public. (This controversy and some recent developments are discussed here.)

Whether they have the right or not, most American women do not appear top-free in public, even at most beaches. This may be in part due to a misperception that such conduct is criminal, but the more likely explanation is the prevailing social norm. One byproduct of the current controversy in Times Square is a movement to get various social media sites to lift restrictions on images of female breasts. (I have it on good authority that #freethenipple is trending on Twitter at the moment.)

Top-Free Rights for Women in New York: People v. Santorelli

Outside of the breastfeeding context, there has been relatively little litigation about women’s right to expose their breasts in public. But, in New York, a very deliberate and public protest brought the issue to a head in the 1980s. Four women who were part of the “Topfree Seven”—the label was chosen deliberately to avoid association with the toplessness of strip clubs—bared their breasts at a public park in Rochester. They did so to test a newly amended public indecency law.

Under a prior version of the indecent exposure law, a New York court held, in People v. Gilbert (1972), that a woman sunbathing nude at a public beach was not guilty of indecent exposure, even though the law expressly prohibited exposure of the female breast. The statute also required “lewdness,” and the court felt the sunbather did not fit that description. After the Gilbert decision, the New York legislature changed the law to make it stricter—it prohibited all nudity, including female breasts “below the areola”, whether lewd or not.

The Topfree Seven had staged similar protests in the past, once a year, and, while they were always arrested, the charges were always dropped. But in 1986, the protest led to arrests, and the arrests led to conviction for indecent exposure. The women appealed on constitutional grounds, arguing that the indecency law, which expressly banned public exposure of all private parts, including the female breast “below the areola,” discriminated against women. Men, after all, are free to bare their chests virtually everywhere, save for restaurants and stores with a “no shoes, no shirt, no service” policy.

The challenge reached the state’s highest court, the New York Court of Appeals, which issued a strangely reasoned opinion, People v. Santorelli. Although the statute had been amended to eliminate the requirement of lewdness, and contained no other predicates or carve-outs, the court held that the blanket prohibition on the exposure of the female breast was “aimed at discouraging ‘topless’ waitresses and their promoters” and, therefore, only applied in situations when breast exposure was either commercial or lewd. With this holding, the court did not need to reach the women’s core claim—that the law discriminated on the basis of sex. But that argument still had its day.

A concurring judge in Santorelli wrote separately, arguing that the majority’s conclusion was based on faulty reasoning. He thought, quite plausibly, that the judges were misreading a clear statute. The text revealed no limitation to bare breasts that were part of a business (e.g., a strip club) or were displayed lewdly. In reading the statute more narrowly, the majority had, in the eyes of the concurring judge, indulged in “artful means of avoiding a confrontation with an important constitutional problem.” He thought the better approach was to give the statute its due—all public exposure of female breasts was criminally indecent—but invalidate it on constitutional grounds. In other words, the Rochester women should have been found guilty of indecent exposure, but the convictions should have been thrown out because the statute violated their equal protection rights under both the New York and federal constitutions.

Under standard equal protection analysis, a statute that differentiates on the basis of gender must survive heightened judicial scrutiny. The government must demonstrate an important governmental interest and a substantial relationship between the means and the end. In this case, the state did not have a good enough reason to single out women and force them to wear shirts. Rather, the concurring judge wrote, the statute “betray[ed] an underlying legislative assumption that the sight of a female’s uncovered breast in a public place is offensive to the average person in a way that the sight of a male’s uncovered breast is not.” But “protecting public sensibilities” was not enough, in his opinion, to outweigh the harm to women of differential treatment. In prohibiting the exposure of genitalia, the statute treated men and women the same. But the judge relied on evidence from the Kinsey report and other human sexuality sources to conclude that the “female breast is no more or less a sexual organ than is the male equivalent.” The judge thought that the differential treatment of male chests and female breasts was not based on a real biological difference, but on the societal meaning attached to the female breast. And the very fact the female breast might arouse men more than the converse is, in his view, “itself a suspect cultural artifact rooted in centuries of prejudice and bias toward women.” The state could thus not justify a “law that discriminates against women by prohibiting them from removing their tops and exposing their bare chests in public as men are routinely permitted to do.”


Santorelli stands for the proposition that non-commercial exposure of women’s breasts in public does not violate New York’s indecent exposure law. The concurring judge’s view that any contrary reading would constitute unconstitutional discrimination has no legal force, however persuasive it might be. But both opinions produce the same result: the topless women currently protesting in Manhattan are well within their rights. So perhaps the question should be about the social taboo—why do we treat women’s, but not men’s, breasts as sexual objects that must be concealed in public?

Joanna L. Grossman, a Justia columnist, is the Sidney and Walter Siben Distinguished Professor of Family law at Hofstra University. She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
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People Born in the United States Are Properly Citizens Wed, 26 Aug 2015 04:01:27 +0000 Continue reading →]]> ImmigrationLast week, Donald Trump released a white paper on immigration reform. It proposes, among other things, to “end birthright citizenship.” Trump himself should not be taken seriously as a presidential candidate, and it should be noted that his draconian views on immigration are controversial even within the Republican primary field. For example, in response to Trump, former Florida Governor Jeb Bush characterized birthright citizenship as “part of our noble heritage.”

Still, Trump’s tough-on-immigration position appeals to many Republican primary voters. Moreover, as his white paper trumpets, even Democratic Senate minority leader Harry Reid once supported ending birthright citizenship. Accordingly, those of us who think that children born in the United States to undocumented immigrants are properly deemed citizens cannot simply ignore Trump’s proposal as attention-grabbing buffoonery.

Section 1 of the Fourteenth Amendment

In the U.S. context, the term “birthright citizenship” refers to the Citizenship Clause of the Fourteenth Amendment, which begins: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” That language was added to the Constitution following the Civil War in order to overrule the infamous Dred Scott decision, which declared that African Americans could not be citizens. However, like other provisions of the Fourteenth Amendment, the language of the Citizenship Clause is general: by its terms, it does not apply merely to former slaves and their descendants but to “all persons born” here.

The Trump white paper does not say how Trump intends to end birthright citizenship. Some people who oppose birthright citizenship call for a constitutional amendment, but other reformers suggest that no amendment is needed. The Citizenship Clause, they note, is limited to those persons “subject to the jurisdiction” of the United States and they argue that children of undocumented immigrants do not satisfy this criterion.

As a textual matter, that claim is odd. As Professor (and Verdict columnist) Ronald Rotunda noted in a 2010 Chicago Tribune op-ed, undocumented immigrants are indeed subject to the jurisdiction of local, state, and federal government—as are their children. If they break the law, they can be prosecuted just like anybody else.

What does the Fourteenth Amendment mean when it refers to people who are born here but not subject to U.S. jurisdiction? The Supreme Court answered that question in the 1898 case of United States v. Wong Kim Ark. Riding a wave of nativist racism against East Asians that bears an uncomfortable resemblance to the anti-Latino sentiments that contemporary immigration hawks sometimes express, Congress enacted and then re-enacted the Chinese Exclusion Act, which placed severe restrictions on the entry into the United States of Chinese persons—including, in the view of the government official who sought to exclude Wong Kim Ark, ethnic Chinese who had been born in the United States.

The Court rejected the government’s attempt to apply the Chinese Exclusion Act on the ground that Wong Kim Ark was a U.S. citizen, even though his parents remained subjects of the Emperor of China. Justice Gray’s majority opinion relied mostly on the common law and practice that formed the backdrop for the Fourteenth Amendment. That backdrop also informed the Court’s understanding of the Amendment’s express qualification: Children born in the U.S. to foreign ambassadors and consuls, or to soldiers or others accompanying invading armies had, by tradition, not been regarded as citizens, as they were not “subject to” our law. But otherwise, people present in the U.S. are subject to U.S. laws and, for that reason, most people born in the U.S. are U.S. citizens.

Yet Wong Kim Ark’s parents were in the U.S. legally when he was born. No Supreme Court case affirming the broad scope of birthright citizenship speaks to the precise question of the citizenship of children born to undocumented immigrants. And in their 1985 book Citizenship Without Consent: Illegal Aliens in the American Polity, Peter Schuck and Rogers Smith relied on an 1884 Supreme Court case holding that Native Americans are not entitled to birthright citizenship to question the broad language of Wong Kim Ark as applied to children of undocumented immigrants.

Thus, if immigration liberals are comforted by the apparently clear implications of the language of Wong Kim Ark, we should remember that before the Supreme Court dignified the claim that Congress lacks the power to require people to purchase health insurance, that claim too was widely dismissed as essentially foreclosed by prior precedent. We should not underestimate the ability of clever lawyers to make off-the-wall arguments sound reasonable—especially if they end up arguing before a Supreme Court that includes new Justices appointed by a future get-tough-on-immigration president.

The Virtues of Birthright Citizenship

Should the opponents of birthright citizenship fail to get what they want by persuading or packing the Supreme Court, they would need to amend the Constitution. What can we say to persuade Americans that such an amendment would be a bad idea?

The best defense of birthright citizenship echoes the position espoused by the Supreme Court in the 1982 case of Plyler v. Doe. Texas tried to deny a free public education to the undocumented immigrant children living in that state. In holding that the state thereby violated the Constitution, the Court noted that the state’s approach was illogical. As Justice Powell explained in a concurrence, no one “benefits from the creation within our borders of a subclass of illiterate persons, many of whom will remain in the State.”

So too with citizenship itself. If we are not going to deport the millions of people born here to undocumented immigrants—and we are not—then there is little reason to withhold the sense of belonging and the concomitant sense of duty that go with citizenship.

Many countries, including countries generally regarded as democracies, reject birthright citizenship, treating parentage as the chief means of acquiring citizenship. As Professor Rotunda noted in his Op-Ed and as Professor Neil Buchanan discussed in his recent column on the Dominican Republic’s treatment of its ethnic Haitian minority, this approach can be ugly. Generation after generation of people who have known no other home are treated as not even second-class citizens.

By contrast, birthright citizenship implements widely shared and characteristically American values. Through the Titles of Nobility Clauses of Article I, Sections 9 and 10, the Constitution abjures eighteenth-century European notions of privilege obtained by birth. Meanwhile, Article III, Section 3 forbids the “Corruption of Blood”—the old practice of disinheriting the heirs of persons convicted of treason or other serious crimes. Together, these provisions reject the proposition that in America the sins of the fathers (or mothers) can be visited on the sons (or daughters).

That notion also informed the Supreme Court’s decision in Plyler. “Even if the State found it expedient to control the conduct of adults by acting against their children,” Justice Brennan wrote for the majority, “legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”

No doubt the American commitment to disregarding accidents of birth has always been under-inclusive, originally grossly so. After all, the original Constitution co-existed with race-based chattel slavery, and we still face the consequences of our collective failure to fully remedy that historic wrong.

But the Fourteenth Amendment—including its Citizenship Clause—was a huge step in the right direction. Curtailing its promise of birthright citizenship would thus be a huge step backward.

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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Police Reform in the Queen City Mon, 24 Aug 2015 04:01:33 +0000 Continue reading →]]> Cincinnati, OhioI spent the better part of last week with the Cincinnati Police Department. They gave me extraordinary access, and I tried to make the most of it. I sat in on planning and brainstorming sessions for soon-to-be launched operations, met with senior leadership about their vision for the CPD, interviewed senior and mid-level command officers about the challenges they faced and the projects underway in their districts, and rode through the city with junior officers. Though they knew I was working on a book on criminal justice reform, no one quizzed me about my personal or political philosophy, challenged me on my background as a criminal defense and civil rights lawyer, or asked me what I intended to write.

I went to Cincinnati because of the long road the CPD has traveled. In 2001, a Cincinnati officer shot and killed an unarmed 19-year-old black man. It was the fifteenth killing of a black man by the Cincinnati police in six years. This time, the city erupted in riots, which finally brought the police department to the bargaining table to settle a lawsuit previously filed by the ACLU and a community group called the Black United Front. Eventually, the parties came to an agreement that would serve as a framework for a new approach to policing and become a model for police reformers nationwide.

The parties agreed that policing in Cincinnati, as well as police/community relations, would be built around five goals. Police and the community would: (1) become “proactive partners in community problem solving”; (2) build “relationships of respect, cooperation and trust within and between police and communities”; (3) “improve education, oversight, monitoring, hiring practices and accountability” of the CPD; (4) “ensure fair, equitable, and courteous treatment for all”; and (5) create “methods” that would help the public understand “police policies and procedures” in order to “foster support for the police.” The final result, called the Collaborative Agreement, is worth studying in full.

It took a long time to hammer out the Agreement, and success was never a foregone conclusion. Precisely how it happened—including the back story that hasn’t yet made it into print—is a tale that needs to be told, since it serves as a lesson for cities nationwide. This isn’t the place for that story, but suffice it to say that it represented a lot of hard work by a lot of people who were not natural allies. While I was in Cincinnati, I had dinner with John Eck, a nationally recognized criminologist at the University of Cincinnati who wrote the initial draft of the agreement and participated in the negotiations. He said the negotiators were on a roller coaster that seemed to cycle up and down about every 48 hours, which means once every other day, for more than a year, he thought it would all fall apart.

Yet the agreement is just a bunch of words on the page, with language that no police department in the country should find objectionable. What police chief would ever say, “I’m sorry, but we don’t want to ensure fair, equitable, and courteous treatment for all, nor do we have any desire to build relationships of respect, cooperation and trust within and between police and communities.” Old habits are the hardest to break, and without a commitment to the spirit of the document, the words on the page would never translate into change in the street. When I was with the CPD, one senior commander told me that many in the department initially did their best to derail the negotiations and undermine the agreement. Looking back, he’s happy and more than a little relieved they failed.

So what does change look like? At a concrete level, what does the CPD do now that they didn’t do before; what have they stopped doing that used to be routine? That’s a big question since the changes reach all aspects of police practice. But fundamentally, change in the Cincinnati Police Department has been driven by the recognition that the overwhelming majority of crime is committed by a very small number of people at a very small number of places, a phenomenon I have described before. At least when it comes to law enforcement, most people are innocuous, and most places are irrelevant.

Aggressive and creative law enforcement has a legitimate role in this environment, but it is vital to understand that outside the problem places and people lies a community that deserves to be treated with dignity and respect. Realizing this, the leadership I spoke with described their enforcement efforts with words like, “surgical,” “precise,” “tailored,” “focused,” and “limited.” On a continuum between “zero tolerance,” where the police stop, ticket, and search everything that moves, and “surgical policing,” which means what it sounds like, Cincinnati has gradually moved away from the former and toward the latter, reconceiving its entire mission.

The difference ripples through everything CPD does. I started to get a sense for that almost as soon as I arrived. On my first morning in Cincinnati, Chief Jeffrey Blackwell invited me to sit in on the bi-weekly meeting of senior leadership, which included Blackwell, his assistant chiefs, the commanders from each of the five districts in the department, and the officer in charge of each specialized unit. After introductions for my benefit, each person briefed the Chief on developments since the last meeting and the status of major projects underway in their respective portfolio.

A captain from violent crimes made the first report. She said that Joseph Deters, the Hamilton County District Attorney, had retained outside counsel, who had apparently advised him that police videos, recorded either from the dashboard of an officer’s squad or a body camera, were the officers’ work product. This meant they were exempt from disclosure under the state Open Records Act. According to the captain, Deters planned to resist the next request he got for disclosure of a video in order to force a definitive ruling by the Ohio courts. In the meantime, videos in his control—meaning those that were part of a criminal investigation, and therefore of greatest interest to the public—would not be disclosed.

In some places, the police leadership would welcome this decision. After all, if the DA can withhold a police video, so can the police. They’d never have to disclose another embarrassing tape. But that’s not how the CPD responded. To say the DA’s plan was poorly received by the Cincinnati police leadership would not do justice to their reaction. The room went silent. “That’s a terrible idea,” one captain finally said. “That’ll really set us back,” added another. Others shook their head in disbelief. One started to think aloud about workarounds. Well, just because we don’t have to disclose a video doesn’t mean we can’t, right? Finally, Chief Blackwell announced, “We’re going to fight this.”

There was a brief discussion, but nobody needed convincing. Everyone knew the CPD could not accept this decision. Since 2001, the leadership of the Cincinnati police department has internalized a culture of transparency. The leadership understood that withholding information, even if legally allowed, could wreck the department’s fragile relationship with the community and undo what they’ve tried to achieve since 2001. If the community thinks the police are trying to hide their dirty laundry, they stop trusting the department and start questioning its legitimacy. They cease to think of the police as partners in a shared campaign to end disorder and prevent crime, and come to see them as partisans committed only to their own agenda. Ultimately, they stop cooperating with the police, and without the community, cops can’t do their job.

And understand, the question is not whether the DA is right about the Open Records Act. In fact, let’s assume the DA doesn’t actually intend to withhold the videos and that the captain misunderstood what she heard, or that the DA’s plans have changed. All of that is beside the point. What matters is that the leadership of the CPD, when presented with a choice, reflexively favored more rather than less transparency, and honesty rather than duplicity in its dealings with the community—even if it meant disclosing more than the law required, sharing material that might cast the department in a bad light, and taking a position contrary to the elected District Attorney. That’s the take away, and it’s a big one.

Don’t get me wrong. The Cincinnati Police Department is emphatically not a model police force. A number of people I spoke with feel the department no longer strikes the right balance between law enforcement and community engagement, which is perennially the most vexing challenge facing any urban police force. Others worry that the department still relies too heavily on the traditional tools of law enforcement—stops and arrests—and does not approach problem places as creatively as it should. And when I met with a longtime leader in the community and member of the Black United Front, who had been part of both the original lawsuit and the fractious negotiations leading to the Collaborative Agreement, she expressed considerable doubt that the CPD has ever been truly committed to meaningful reform.

But despite its flaws, CPD is one of the best departments in the country. Its leadership and most of its officers have crossed an important bridge from old to new, changing the way the department conceives its mission, plans its operations, and conducts its business. In Cincinnati, many in the department—not everyone, and not enough—genuinely view the community as an essential part of the solution rather than a dangerous part of the problem. Change is slow, and forever a work in progress. But it’s possible, and in Cincinnati, it’s happening.

Joseph Margulies is a 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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Resolving Race and Paternity Questions About President Warren G. Harding Fri, 21 Aug 2015 04:01:14 +0000 Continue reading →]]> DNA Test TubeOver a decade ago, at the request of historian Arthur Schlesinger, Jr., I wrote a brief biography of our twenty-ninth president, Warren G. Harding. I knew a good bit about Harding for I spent a part of my youth in Marion, Ohio, which was Harding’s home town, and had started reading about him when I was about eleven years of age—and I never stopping finding him interesting, particularly given his uncalled for maligning by history. Schlesinger was the editor for a series on all, then forty-two, past presidents, and my book, Warren G. Harding (2004), which turned Arthur from anti-Harding to admitting he had been mistaken, for Harding was a far better president than Arthur had realized.

Two issues, which have long been considered of significance in the Harding story and which I addressed in my biography, were resolved last week: Whether Warren Harding was the first African American president (he was not), and whether he had fathered a child out of wedlock with one of his hometown admirers (he did). With time, resolving these issues should lead to a better understanding of the Harding presidency.

Warren Harding Was Not a Black President

Warren Harding was born in 1864 as the Civil War was ending. His father and grandparents favored the abolition of slavery, with his father fighting for the Union Army. As a result of these abolition sympathies, neighbors who disagreed with them sought to discredit the family by starting the rumor they were African. This rumor erupted nationally in the 1920 presidential campaign when a racist professor at the College of Wooster in Ohio, William E. Chancellor, declared presidential candidate Harding unfit to be president because of his African heritage. Chancellor, who had written some thirty books, said he had “researched” the Harding family and based his “genealogy” on sworn affidavits.

Chancellor’s charges spread far and wide during the 1920 presidential campaign, and although Harding’s Democratic opponents—Ohio Governor James Cox and his running mate Assistant Secretary of the Navy Franklin Roosevelt—stayed away from the charge, others spread the word. A number of Harding biographers bought into Chancellor’s contention as part of the effort to discredit Harding, portraying him as stereotypically lazy and not very bright. For example, Francis Russell, a leading Harding biographer who was educated at Harvard and authored many highly acclaimed books, believed the rumor and sought to prove it with his 1968 best-selling Harding biography, which he wanted to title in a conspicuously racist manner but ended up with The Shadow of Blooming Grove, to convey his message. Russell trashes Harding with his not-so-subtle racist analysis and less than legitimate scholarship. (I took Russell to task in the manuscript of my Harding biography, and Arthur Schlesinger asked if I would remove it because while Russell was dead, Arthur remained friendly with his family and friends. I agreed. Someone still needs to tell the story of how a small group of “progressive” scholars set out and succeeded in ruining Harding’s reputation, inventing a false history that lives to this day.)

Even with Barack Obama as President of the United States, for too many white Americans being black—or even having one drop of African ancestry—is viewed as a negative, as less able than white, a perception that is without any scientific basis whatsoever. It is pure prejudice and racism. On the other hand, many blacks want to believe Harding was one of several black presidents before Obama. This is all based on lore — pure hearsay — rather than fact or science. Google “Black American Presidents” and you will find that most all the lists include Harding among other dubious selections.

It turns out Harding was not of African descent. We know because Harding’s great nephew and newly identified and confirmed great grandson had their DNA tested. While testing to see whether Warren Harding had fathered a child outside his marriage, the test was also done for African ancestry. As reported by the New York Times, while scientists note we all have distant African heritage, it has been “showed for the first time that Harding almost certainly had no recent ancestors with African blood, despite assertions that were spread far and wide a century ago in efforts to sabotage everything from his marriage to his political career.” Dr. Peter Harding, the great-nephew who provided DNA, said with disappointment after learning the results, “I was hoping for black blood.” Peter did find a new cousin, however, James Blaesing, who it was also learned was Warren Harding’s great grandson. Blaesing and his family similarly lacked African blood.

Warren Harding Did Have a Daughter

It has long been known that Warren Harding had a fifteen-year affair with Carrie Phillips, a Marion neighbor, for she saved his love letters. These letters were discovered by Francis Russell in 1963 when working on his Harding biography, and he would surely have sensationalized them—for they are often sexually explicit—had the Harding family not have taken legal action to obtain the letters, and sealed them in the Library of Congress until 2014. As it happened, a friend of mine was given a bootleg copy of the letters by someone not subject to the lawsuit sealing them, and he went to the Harding family for their consent to transcribe and explain the letters, rather than sensationalize them. Jim Robenalt published them in 2009, and I did the forward to his book, The Harding Affair: Love and Espionage during the Great War.

Also it has long been known that Nan Britton, another young woman from Marion, claimed she too had an affair with Harding, which began when the relationship with Carrie was ending and before his run for the presidency. In 1927, four years following Harding’s death in office, a little over half way through his first term, Nan published The President’s Daughter, reporting her affair with Harding and the fact they had a daughter, Elizabeth Ann, whom Harding never saw but whom he had financially supported while he was alive, and president. When the Harding family refused to acknowledge the president’s daughter, Britton published her book, which was a best-seller and enabled her to provide for her daughter.

A number of Harding’s supporters from Marion did their best to discredit Nan, writing a pamphlet titled “The Answer,” claiming Britton had gotten pregnant by someone else and the dead president had become a convenient father. Those attacking Nan claimed her book was only more evidence of her gold digging. Nan filed a defamation lawsuit against “The Answer,” and won. But the jury awarded her no damages. With the passage of time, the issue disappeared, but as I noted in my Harding biography, when Harding’s papers were opened by the Ohio Historical Society, Elizabeth Ann identified herself to a Los Angeles Times reporter. She had married Henry E. Blaesing in 1938 and moved to California.

By 2004, when I wrote my biography, DNA testing had become relatively inexpensive. I tried to find Elizabeth Ann Blaesing, and her family, but they had moved from California. So I added a footnote to my biography suggesting the Harding family and the Blaesing family do DNA testing to resolve this historical question. Nothing happened. I had no response. But following publication of my biography, I did locate Elizabeth Ann and her family in Oregon, only to find she was not interested in being interviewed or providing DNA. Also, following publication of my book, I met several members of the Harding family, none of whom were interested in DNA testing. Elizabeth Ann Blaesing, a widow, died in 2005, survived by two sons: Thomas and James Blaesing.

I passed the DNA idea on to Jim Robenalt, who was deep into the Carrie Phillips letters, where he had discovered many of Nan’s dates in The President’s Daughter uniquely corresponded with the dates in Carrie’s letters. Jim noted this in The Harding Affair, explaining it meant either Nan was telling the truth, or possibly she had seen Carrie’s letters, which would have enabled her to navigate Warren Harding’s schedule during the outset of their relationship where there was some overlap with his letters to Carrie. Nan had destroyed all her letters from Harding at his request, so she had no hard evidence of their relationship.

It was after Peter Harding read Jim’s book, The Harding Affair, and his father’s copy of The President’s Daughter that he became convinced he probably had a long lost cousin in Elizabeth Ann Blaesing and her children. Peter sought out Jim Robenalt, who encouraged him to approach Elizabeth Ann’s children and to do the DNA testing. I joined Jim in talking with Peter as well during one of their many conversations. To make a long story short, we were able to ignite interest in resolving these historical matters and the DNA testing shows Elizabeth Ann and her children have Harding DNA.

The New York Times reported the story on August 8, 2015. Peter Harding, joined by his cousin Abigal, along with Jim Blaesing, provided DNA to AncestryDNA, a division of “We’re looking at the genetic scene to see if Warren Harding and Nan Britton had a baby together and all these signs are pointing to yes,” Stephen Baloglu, an executive at Ancestry, told the New York Times. “The technology that we’re using is at a level of specificity that there’s no need to do more DNA testing. This is the definitive answer.”

What Does It Mean?

Now that we have resolved these historical issues, what does it mean?

When I called for the DNA testing my thought was that resolving these issues could help many people interested in understanding the American presidency get around these questions which seem to deflect attention of those studying Harding’s presidency. Whether he was African American, and had a child with Nan Britton, are really not very important matters in analyzing and understanding how he performed as president—what he did or failed to do for the country as president. (And we have looked beyond these issues with other presidents, just not Harding.) These issues continue to influence the thinking of too many for Harding. As Jim Robenalt told The Washington Post, after the findings were in, if people were not so obsessed with Harding’s sex life, they might realize he was an above-average president. Harding took our nation back to normal after it had been ravaged by World War I; he reversed his much admired predecessor Woodrow Wilson’s refusal to create a Bureau of the Budget (today OMB), and he similarly rejected Wilson’s racism, which had excluded blacks from federal jobs — to mention but a few underappreciated actions by Harding.

Both Jim and I are looking at the larger picture, the long-term impact of resolving these questions, and we hope that legitimate historians will begin to reexamine Harding, as Arthur Schlesinger Jr. did when I provided him information with which he was not familiar. This is not to say that short-term there will be any shortage of small-bore cheap-shot writers who know nothing about Harding; their ignorance about him will not slow them down. For example, Politico gave a platform to Jordon Michael Smith, a peripatetic and less-than-honorable Canadian freelancer—whom Jim Robenalt regrets assisting earlier, for Smith did with the material Jim provided exactly the opposite of what he stated he planned to do.

Short term, the greatest impact of these findings will be on the Harding and Blaesing families. Jim’s wife, Joanna Connors, a real journalist (who does not burn sources) at the Cleveland Plain Dealer, interviewed Peter and Abigail Harding, as well as Jim Blaesing, and found them all pleased with the results of their collective undertaking. Undoubtedly, it will take time for the extended Harding and Blaesing families to take it all in, but I am confident that will occur long before the crackpot journalism and lazy historians further distort a presidency that by any standard of measurement was far better than given credit, and if having affairs in the White House automatically tanks a president, then Harding should be judged with his company.

John W. Dean, a Justia columnist, is a former counsel to the president.
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Jared Fogle, Ashley Madison, and When Will We Have the Fences that Make for Privacy and Safety on the Internet? Thu, 20 Aug 2015 04:01:47 +0000 Continue reading →]]> Internet SecurityWhen the Internet began, there was a great deal of celebration that this would be the route to true democracy, justice, and progress. At first, it was such a wondrous thing, it was difficult to imagine its underbelly. But the child pornographers wasted no time polluting the ether with some of the most heinous crimes there are. The Internet in the end, reflects the human condition—a deep and complex mix of good and bad.

Just like real property, good fences make good neighbors in the ethersphere. Therefore, the critical issue facing us all is when will truly effective fences on the Internet become operative. The best fences protect privacy, but they are also constructed in a way that permits the authorities to enforce the law.

The End of Privacy for Child Pornographers

The web has often persuaded people that they can easily trade in illegal images and transactions without consequence, but that is no longer true. While it is true that the child pornographers leapt ahead of law enforcement early on as they took advantage of the Wild West era of the World Wide Web, national and international prosecutors and the western countries have responded with diligent efforts and dedicated resources to aggressively fight them.

The latest person to learn that the Internet (and his computer with its shared child porn images) can be the enemy is former Subway spokesperson, Jared Fogle, who is pleading guilty to child solicitation and porn charges. He had no way out after the former Executive Director of the Jared Foundation, Fogle’s charity, was arrested for having and producing hundreds of images of child pornography. The latest reports indicate that Fogle was not just a passive participant, either.

The problem of child pornography is extreme, so this is just one story of success amidst millions of images shared without consequence, but the good news is that no one viewing or producing child pornography can feel secure. That is a deterrent in itself.

Of course, there is more to be done. For example, Congress desperately needs to amend the law making it possible for victims to sue the viewers and producers of their porn images after the Supreme Court read the law narrowly in U.S. v. Paroline, as I discuss here. Fogle is being forced to pay $1.4 million to 14 victims. There is little doubt that is a drop in the bucket of the children he harmed through not only soliciting but also viewing child pornography.

The Alliances of Child Sex Abuse Victims Made Possible by the Internet

The Internet has also been a tool of empowerment for the victims of child sex abuse whose trauma before the Internet had routinely led them to a place of isolation and loneliness. These victims lived in the shadows with their accumulation of shame and humiliation for decades while the rest of us believed it just didn’t happen that often. The Internet has accomplished extraordinary good as the survivors have found each other and been able to unite and share information that in the past would have been kept in the dark in all likelihood for their entire lives. The information they have been able to share has made it possible to see the patterns of cover up in our major institutions from churches to universities to high schools, and for the rest of us to learn that there is an army of victims who need and deserve justice and support.

Without the web, these victims were at best solitary individuals who had the misfortune of being a victim. With the Internet, these children, men, and women no longer need to remain shackled in silence. The movements now afoot for the protection of our children would not exist but for it, from SNAP to Lauren’s Kids to SOL-reform to Erin’s law.

The Lack of Privacy for Adults Dealing with Adults Legally

The hacking of data about the Ashley Madison site for adults who seek affairs outside marriage is on a completely different plane and shows how far we have to go in refining the fences on the Internet.

The release of millions of names and credit card numbers (or at least the last 4 numbers) has shown how easy it can be for hackers to share at will what others assumed was confidential. Effective fences are needed to keep adults’ legal exchanges from being released. Ashley Madison is just one corner of the mountain of information that is stored on the Internet and available for criminal use through identity hacking or for public embarrassment and judgment by hackers.

Thus, the challenges continue to be enormous: how do we protect legal behavior and information while deterring illegal behavior? That is, in fact, the question we have always faced and will always face, Internet or not. But now the accumulation of crimes and privacy breaks is larger than ever before. That is why every free country needs to invest in finding the best fences for safety and security and privacy that can be built on the Internet. We’re not there yet.

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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The Sixth Circuit Says No to “Butt Dial” Privacy Wed, 19 Aug 2015 04:01:29 +0000 Continue reading →]]> Phone Security ConceptOn July 21, the U.S. Court of Appeals for the Sixth Circuit held in Huff v. Spaw that when a person with a cellphone inadvertently calls a third party (by “butt dialing” or “pocket dialing” her) and thereby exposes personal communications to that unintended third party, the inadvertent caller retains no reasonable expectation of privacy in the matters disclosed, for purposes of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“the Wiretap Act” or “Title III”). In this column, I will examine the ruling in Huff, in the light of how we ordinarily think about privacy as well as the Fourth Amendment doctrine that parallels Title III.

Huff arose when the cellphone of James Huff, the Chairman of the Kenton County, Kentucky, Airport Board (which oversees the Cincinnati/Northern Kentucky International Airport (“the airport”)) placed a pocket dial call to the office phone of Carol Spaw, the Senior Executive Assistant to the airport’s CEO, Candace McGraw, and a liaison to the Airport Board. After picking up her phone, Spaw—who determined that the call was unintended—listened to and took notes on an hour and a half of conversation taking place on an outdoor balcony in a hotel, between Huff and Airport Board Vice Chairman Larry Savage, and then between Huff and his wife, Bertha Mae Huff, in the couple’s hotel room. Spaw also used an iPhone to record the final four minutes of the couple’s conversation.

Title III, among other things, prohibits the “interception and disclosure of wire, oral, or electronic communications” and provides a private right of action. A main question before the three-judge panel of the Sixth Circuit in Huff was whether listening to a conversation to which one has been exposed by a pocket dial counts as “interception” under Title III. The court focused a great deal of attention on the question whether a person has a “reasonable expectation of privacy” in a conversation transmitted to a third party after the person claiming a Title III violation inadvertently exposed that conversation with the third party at issue through a pocket dial. The court answered the question in the negative for the person operating the cellphone but in the positive for the person with whom the cellphone operator (here Huff) was talking (in this case, Huff’s wife Bertha, who was part of the lawsuit against Carol Spaw).

The court in Huff held that because there are ways of preventing one’s telephone from pocket dialing people (as outlined in the device’s owner’s manual), and because Huff failed to take advantage of these options for protecting his own privacy, he thereby also failed, for purposes of Title III, to manifest an expectation of privacy in the communications he exposed through a pocket dial. The court compared Huff’s failure to protect his own privacy with that of the homeowner who leaves his window drapes up and then conducts personal activity in his home, in full view of anyone who happens to pass by the house while walking down the street. Because Huff’s wife Bertha was not the one who operated the cellphone, she also did not assume the risk of exposure of her conversation with her husband. She accordingly retained a reasonable expectation of privacy in that conversation, which she had carried out in her private hotel room.

In the Fourth Amendment doctrine, the U.S. Supreme Court has similarly used the phrase “reasonable expectation of privacy” to refer both to the individual’s manifestation of his own subjective expectation of privacy and to an assessment of the objective reasonableness of that expectation. The Court has held that under the Fourth Amendment, one lacks a “reasonable expectation of privacy” in what one has “knowingly exposed” to public view. This means that if you yell something secret to your friend in a crowded subway, then police on the scene can listen to what you are saying without having to obtain a warrant or acquire any other suspicion-based reason for listening to you. In the words of the Fourth Amendment doctrine that has developed in the Supreme Court, police listening to what people disclose in public forums does not constitute a “search” and therefore fails to trigger any of the obligations (to behave “reasonably”) that the Fourth Amendment imposes on the government when the latter conducts searches.

The Wiretap Act extends federal coverage to zones of human behavior that might not otherwise receive protection from the Fourth Amendment. In a case like Huff, for instance, where no governmental actors are involved, the Constitution has no application to the surveillance that might be occurring. The Wiretap Act, however, applies to interceptions by private parties and, accordingly, at least potentially, to Spaw’s listening in to what Huff said in private conversations with Airport Board Vice Chairman Larry Savage and with Bertha Huff. Despite the expansion of privacy, the analysis of what triggers Title III protection is similar to the corresponding test for what triggers Fourth Amendment privacy protection. Both require a “reasonable expectation of privacy,” and both appear to have a strong “assumption of the risk” ethos, an ethos that I discussed in a law review article about the Fourth Amendment search doctrine.

Did the Sixth Circuit Get It Right?

Given the parallel between Wiretap Act and Fourth Amendment doctrine, a look at how the Fourth Amendment handles similar situations could shed light on the Sixth Circuit’s ruling in Huff. As mentioned above, Fourth Amendment doctrine carries a strong “assumption of the risk” presumption regarding individuals’ expectations of privacy and the potential forfeiture of those expectations.

The Sixth Circuit relied, to a great extent, on the idea that if one can act to avoid taking a risk and fails to do so, then one has thereby also failed to manifest an expectation of privacy in avoiding the risk coming to fruition. For this reason, when Huff failed to take precautions against pocket dialing with his cellphone, he effectively “asked for” what in fact occurred—his cellphone pocket dialing someone on his call list and thus broadcasting his personal conversations to that someone in real time.

The problem with this reasoning is that it differs in an important respect from the Supreme Court’s Fourth Amendment analysis, and reconciling the two could expose people to the very sort of surveillance that the Wiretap Act is expressly intended to prohibit.

In the Supreme Court’s Fourth Amendment jurisprudence, a person who takes particular risks of exposure thereby forfeits any right of privacy in avoiding the exposure at issue, not just in the event that the particular risk comes to fruition. In more concrete terms, if you put out your garbage at the curb for pickup, you risk the garbage being torn open by human children, by nonhuman animals, and by (adult human) snoops. The Court accordingly held in California v. Greenwood that police may retrieve your garbage from the trash collector and examine that garbage without probable cause or a warrant, even when no child, nonhuman animal, or snoop has exposed it to public view. Doctrinally speaking, you lack any “reasonable expectation of privacy” in the trash that you leave out at the curb, because of the risks that you take in leaving it out, regardless of whether children, animals, or snoops actually do anything to your garbage.

Were the Sixth Circuit to use similar logic regarding the risks taken by a person who fails to prevent his cellphone from pocket dialing, it would follow that a failure to take such steps empowers third parties not only to listen to an inadvertent pocket dial but also to place an electronic bug in the areas where the person goes with his telephone, since the risk of pocket dialing forfeits any reasonable expectation of privacy that he might otherwise have had in the conversations that take place near his cellphone. Title III, however, (not to mention the Fourth Amendment, under Katz v. United States) prohibits such blanket interception.

The Sixth Circuit’s narrower approach to the risk of pocket dialing is akin to the Supreme Court having held that because children, animals, and snoops can open your garbage, the garbage is subject to police rummaging without cause only when children, animals, or snoops have already torn open the bag. Though purporting to parallel Fourth Amendment analysis, the Sixth Circuit therefore takes a step that—under actual Fourth Amendment doctrine—would forfeit all privacy nearby a cellphone that could but has not in fact pocket dialed a third party, a step that the Sixth Circuit did not intend to take (and could not have taken, consistent with the law). In this sense, the Sixth Circuit may have erred in its decision.

To illustrate its assumption of the risk reasoning, the court draws an analogy to leaving your shades open. Like its narrow assumption of the risk logic above, however, its analogy here is flawed. Police can, of course, walk by your house on a public street and see what everyone else sees, but this does not necessarily mean that police can stand in the street and stare into your house for over an hour, the more apposite analogy to listening to a conversation for 90 minutes after a pocket dial.

In Minnesota v. Carter, the Supreme Court left open the question whether staring into someone’s home for an extended period of time through a break in the blinds from a public area outside the curtilage of the residence invades a reasonable expectation of privacy in the home, with only Justice Breyer saying (in an opinion concurring the judgment) that one lacks any such expectation. Even if listening over a pocket dial is just like looking into someone’s home through open blinds, then, it may still be the case that what Spaw did to Huff here (extended listening) should have been held to violate Title III by invading a reasonable expectation of privacy.

The problem, moreover, with an assumption of the risk approach is that one always has to decide which risks are normatively attributable to the risk-taker and which are instead the sorts of risks that most of us may take without forfeiting our rights. To my knowledge, many of us fail to take the measures necessary to avoid pocket dialing the people on our respective call lists. It is also the case that most of the time, our cellphones are not pocket dialing anyone and when they are, the courteous, expected response is for the recipient of the inadvertent call to hang up and go on with his or her day rather than listening and taking notes for ninety minutes.

The Sixth Circuit found that although Spaw did not violate Title III vis-à-vis Huff, she might have violated it vis-à-vis Huff’s wife Bertha, because the risk that we are speaking privately with someone who has failed to prevent pocket dialing on his cellphone is not the sort of risk that we properly assume. But why not? We could refuse to converse with anyone until all cellphones present have been protected, and if this seems excessive, many people would view having to take special measures to avoid pocket dialing on their own phones as excessive as well.

The question here is accordingly normative, not just empirical, and there is no self-evident reason for saying that Bertha but not Huff retains a reasonable expectation of privacy in the very same personal conversation between the two. The ruling also means that a person may listen to a pocket dial call, as Spaw did, and violate Title III only if and to the extent that some third party over whom the person with the telephone lacks any control (here Bertha) says personal things to the other person holding the cellphone in his pocket (here Huff). This result has the arbitrariness associated with Fourth Amendment standing doctrine more generally.

One could, to support the Sixth Amendment ruling, cite a peculiarity of holding Spaw accountable for listening to a conversation to which she was exposed by Huff’s pocket dial to her. Such accountability would mean that Title III imposes an obligation on third parties to act affirmatively, by hanging up the phone. The law ordinarily prohibits us from taking an action (such as robbing a bank) rather than requiring us to act (such as by intervening in a robbery in progress). If Spaw can be required to pay damages for simply listening to a conversation to which she was exposed through another person’s pocket dial, then the law effectively orders Spaw to hang up her phone when she did nothing wrong in answering it in the first place.

Though the law generally prohibits rather than requires action, however, we do have some affirmative obligations. We must file tax returns and pay taxes, for example, and we must respond to jury summonses and serve as lay witnesses when we are called to testify (absent a privilege). An obligation to hang up the phone when a call is not for us, moreover, is simply common courtesy and hardly qualifies as an onerous burden. If the law of the Fourth Amendment and Title III draw on social custom (which they do), people would likely consider it invasive and discourteous to listen to a private conversation to which one has been privy through inadvertence and to which one is unwelcome. As between Huff and Spaw, in other words, it is Spaw whose telephone etiquette would be found lacking, not Huff’s.

In short, the court’s reasoning in Huff leaves something to be desired. If the Supreme Court sees fit to take this case (or, more probable, a case like it once there is a split in authority on the issue), it should say so in no uncertain terms. Cellphones (and their casual use) have become too pervasive in our lives for the law to convert them into legally permissible listening devices.

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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An Avoidable Human Rights Disaster in the Dominican Republic Tue, 18 Aug 2015 04:01:20 +0000 Continue reading →]]> Haiti and Dominican RepublicFor far too many people in the United States, the issue of “illegal immigration” evokes visions of people crossing the border from Mexico, intent on taking American jobs and using government services without paying taxes. Those images are either gross exaggerations or outright lies. For example, it is now well established that undocumented immigrants pay tens of billions of dollars in taxes in the United States each year, at the federal and state-and-local levels. Nonetheless, right-wing politicians in this country continue to stoke fear and hatred, and opposition to a “path to citizenship” has become a litmus-test issue in the Republican presidential contest.

As depressing as that ongoing problem is, it is important to remember that xenophobic, race-based discrimination also continues to cause problems elsewhere in the world. One of the most disturbing ethnic-fueled crises is occurring right now in the Dominican Republic (DR), which received an influx of Haitian refugees after a catastrophic earthquake in 2010. That refugee crisis inflamed long-simmering tensions between Haitians and Dominicans. The Dominican Republic is the richer of the two countries on the island of Hispaniola, and conflict between the two groups has existed for decades. Haitians tend to be poorer, even those ethnic Haitians who live in the DR, as they are pushed to the edges of the economy and live (at best) subsistence existences. Because Haitians tend to be darker-skinned, they are easily targeted for discrimination.

Many Americans saw the excellent 2004 film “Hotel Rwanda,” an Oscar-nominated dramatization of the events surrounding the 1994 Rwandan genocide in which 800,000 people were slaughtered, including up to three-quarters of the targeted Tutsi population (as well as many Hutu who opposed the genocide that was being carried out in their name). The United Nations and the western powers were aware of the killing, but at crucial moments failed to stop or even slow the attempted genocide.

Although the Rwandan genocide has quite appropriately become an important touchstone to remind us of the consequences of inaction, in some ways its horrors dull the senses to other serious international crimes and humanitarian disasters. Anything less than the atrocities of Rwanda in 1994 can somehow seem like a minor event. What we need to remember is that early action can prevent matters from getting out of hand. And even if a situation does not (yet) involve mass killing, mass displacements are also serious human rights violations.

Interestingly, what is needed in the Haitian-Dominican situation today is not aggressive intervention of the sort that would have made all the difference in Rwanda. Instead, as I will explain below, the best approach for the United States now is simply to withdraw financial support for the DR security forces. Rather than rousing ourselves to do more, we can simply decide to do less. Before explaining how this would work, however, it is important to explain just what the government of the DR is trying to do.

Many ethnic Haitians have lived in the DR for generations. Although they are “Haitian,” they are Haitian in the same sense that I am Scottish, or that my wife is German. Imagine an exchange between an “American” and me:

The American: “You’ve been deemed not to be a real U.S. citizen, so you have to go back to where you came from.”

Me: “You mean … Connecticut?”

A: “No, where your father came from.”

M: “Oh, Ohio.”

A: “Grandfather, then.”

M: “Pennsylvania.”

A: “Great-grandfather?”

M: “Edinburgh.”

A: “Yeah, that one!”

Although it is possible to present this in a humorous way, stripping people of their citizenship—even people whose parents actually did live in another country—and forcing them to return to countries that might not even recognize them, effectively leaving them without a country, is a human rights violation. Yet in 2013, “the Dominican Republic’s highest court issue[d] a ruling that stripped hundreds of thousands of people of their Dominican citizenship, based on a retroactive reinterpretation of the country’s nationality laws.” There could have been no question whom this ruling would affect most, because “the vast majority of those impacted are of Haitian descent, particularly those born to undocumented parents between 1929 and 2010, with an estimated 200,000 people made stateless by the ruling.”

In response to some international pressure, the Dominican government has recently tried to respond to criticism, reportedly offering assurances that no Dominican-born person will be deported, and promising case-by-case adjudication of claims. Even so, the Inter-American Court of Human Rights found in 2014 that the DR had engaged in “a systematic pattern of expulsions of Haitians and persons of Haitian descent based on discriminatory concepts, including collective expulsions.” Moreover, the case-by-case adjudications will require people at risk of deportation to produce documents proving where they were born, which is often expensive or impossible for this vulnerable, targeted population.

Isn’t International Law Hard to Enforce? Yes, but U.S. Law—and Funding—Is What Matters Here

In any international human rights dispute, it can be frustrating to try to figure out what could be done, even if there were the will to do it. It is not simply a matter of calling the FBI to arrest a domestic terrorist, or working with Interpol to track down an international fugitive. (Even those situations, of course, can become complicated very quickly.) We must often ask, for example, what happens if relevant international law does not exist, or if the relevant countries have not ratified the relevant treaties. What, in any case, can one country do about a problem in another country, within an international legal system that uses national sovereignty as the cornerstone of the law?

Fortunately, that problem is only in the background with respect to the current crisis in the DR. Although there are certainly difficult issues of international law in play, there is a law in the United States that permits (and, in some cases, actually requires) the American government to respond to human rights violations. The so-called Leahy Amendments grant the Secretary of State the authority to withhold funding from the security forces of governments that have violated human rights (or, to be more formal, for which there is credible evidence of a gross human rights violation).

In the current situation, the DR security forces are carrying out the illegal deportation orders, moving people into filthy and unsafe refugee camps on the border between the two countries. The letter below details other worrisome aspects of the current situation in the DR, pointing to a developing human rights catastrophe.

Unfortunately, the Leahy laws are riddled with exemptions and limitations, so it is probably not the case that the United States would be required under those laws to withhold funding.

Fortunately, there are other options. Most directly, the United States Congress could simply decide to exercise the power of the purse, declining to provide financial support to a regime that would use those funds to further a system of mass deportation. Even if current law does not require us to do so, this is an opportunity to pass an important new law.

As the saying goes, money talks. And no matter what the Dominican government might say in response to rulings by international tribunals, the prospect of losing millions of dollars of U.S. aid would focus that government’s attention in a way that talking never could. As I noted above, moreover, this would amount to the United States applying pressure by omission—that is, refusing to “meddle in the internal affairs of a sovereign country” to make that country understand that the United States cannot allow itself to be the enabler of that country’s human rights violations.

The Letter from Peace Corps Workers Who Have Returned from the Dominican Republic

The Dominican Republic is the destination for large numbers of U.S. Peace Corps volunteers. Three former DR-based Peace Corps Country Directors recently sent a letter to U.S. Secretary of State John Kerry, urging the United States to enforce the Leahy Laws and stop financial assistance to the Dominican military and police. The letter was co-signed by 560 returned DR-based Peace Corps volunteers. Such a letter is unprecedented, yet it is a morally required statement of concern from people who have spent large amounts of time in the DR. Both The Nation and CNN recently provided positive coverage of the letter.

There are situations in which international diplomacy is nuanced and difficult. It seems clear that this is not one of them. We have an opportunity to use U.S. leverage to prevent a developing crisis, which has already inflicted suffering on thousands of people, from becoming worse.

Because of the importance of the letter from the Peace Corps volunteers, I am ending this column by reproducing that letter in its entirety:

Honorable John F. Kerry
Secretary of State
2201 C Street, NW
Washington, DC 20520

cc: Honorable Roberta S. Jacobson, Assistant Secretary of Western Hemisphere Affairs
cc: Honorable Senator Patrick Leahy of Vermont

Dear Secretary Kerry,

As 560 returned Peace Corps volunteers and three Country Directors who served in the Dominican Republic, we are grateful for the privilege of having spent years living, working with, and learning from the Dominican people. It is due to our deep and abiding concern for the most vulnerable members of Dominican society that we are writing to you about the crisis of statelessness among Dominicans of Haitian descent. We urge you to end U.S. involvement in the violation of their human rights: enforce the Leahy Amendments to the Foreign Assistance Act and annual Department of Defense appropriations.

The Leahy laws state that no U.S. assistance shall be furnished to any unit of the security forces of a foreign country if there is credible information that such a unit has committed a gross violation of human rights. Given the Dominican government’s disregard for international law with respect to the status of its citizens of Haitian descent; the violent track record of Dominican security forces receiving funding and training from the United States; and the Dominican Armed Forces’ readiness to execute a potentially massive campaign of rights-violating expulsions, we ask that the United States suspend its military aid to the Dominican government.

In 2013, the Dominican Constitutional Court issued a ruling (168-13) that effectively stripped hundreds of thousands of people, primarily those of Haitian descent, of their Dominican citizenship. This ruling stands in direct contravention of international human rights law—specifically the American Convention on Human Rights, which the Dominican government ratified in 1978. This convention enshrines the right to a nationality and prohibits its arbitrary deprivation. Many Dominicans of Haitian ancestry, including those whose families have resided in the Dominican Republic for generations, were rendered stateless and face forcible deportation to a country where many have no ties whatsoever. A subsequent Dominican law (169-14), which addressed the court’s ruling, further entrenched the negation of the right to citizenship on the basis of one’s place of birth, and retroactively conferred citizenship on the basis of the immigration status of one’s parents.

In 2014, the Inter-American Court of Human Rights (IACHR) ruled in a binding decision that the Dominican government practiced “a systematic pattern of expulsions of Haitians and persons of Haitian descent based on discriminatory concepts, including collective expulsions.” The decision called for redress to victims who suffered illegal deportations, the denial of identity documents, and arbitrary deprivation of nationality. The IACHR furthermore deemed Dominican Law 169-14 “an impediment to the full exercise of the right to nationality of the victims” and a violation of “the right to identity, and the right to equal protection of the law recognized in Article 24” of the American Convention on Human Rights, which are binding obligations.

The Dominican government’s dismissive reaction to the IACHR ruling demonstrated a “shocking disregard for international law,” according to Amnesty International. Dominican security forces have been tasked with implementing these illegal migration policies, according to the declarations of Dominican Defense Minister Máximo William Muñoz Delgado and the head of the General Directorate of Migration, Rubén Darío Paulino Sem. The security forces that appear poised to carry out mass deportations within the country, including the U.S.-trained border patrol agency, CESFRONT, have received more than $17.5 million in assistance from the United States since 2013, the year that the Constitutional Court handed down its ruling.

The Department of State has acknowledged that Dominican security forces have committed gross violations of human rights, including extrajudicial killings and torture. In one instance, according to a 2013 State Department report, migration agents and National Police officers “forcefully entered the home of 31-year-old Haitian immigrant Jean Robert Lors during a mass repatriation round-up” and beat him so severely—allegedly “with the butts of their weapons”— that he died shortly thereafter. A “widespread perception of official impunity” for such egregious acts coupled with routine discrimination against Haitian migrants and their descendants makes it a virtual certainty that darker-skinned Dominicans will suffer severe violations of their human rights as a result of the government’s unlawful policies on migration and citizenship. Indeed, the State Department concluded that within the Dominican Republic, “the most serious human rights problem was discrimination against Haitian migrants and their descendants, including the Constitutional Tribunal’s September 2013 ruling.”

It is exactly this sort of financial assistance to security forces that the Leahy Amendments are designed to curtail, as the State Department demonstrated when it suspended police aid to Saint Lucia in 2013. If the United States is serious about protecting universally recognized human rights, we must no longer abet such actions in the Dominican Republic, much less be complicit in an impending intensification of human rights abuses. In our view, it appears impossible for the Dominican government to move forward with the implementation of its human rights-violating, internationally condemned citizenship laws without involving its security forces in yet more widespread and severe abuses.

We wish to clarify that we make our recommendation not in opposition to the people of the Dominican Republic, but rather against an official U.S. policy of funding and training Dominican security forces that are both responsible for gross human rights violations and positioned to commit many more abuses without a sharp signal from the United States that such practices are unacceptable. By continuing to offer its military aid to the Dominican security forces, the United States is undermining internal efforts by a variety of organizations and individuals in Dominican civil society to protect vulnerable people, defend human rights, and bring the country into compliance with international law. We urge you to suspend U.S. assistance to Dominican security forces and stand up for human rights in the Dominican Republic at this critical moment.

We would greatly appreciate the opportunity to speak with your office about this matter; to this end, a small group of us kindly request a meeting with Assistant Secretary Jacobson at her convenience to further discuss our proposal and address any concerns you may have.


Art Flanagan, Peace Corps Country Director (2011-2014)
Romeo Massey, Peace Corps Country Director (2005-2011)
Dan Salcedo, Peace Corps Country Director (1999-2002)


Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
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Judges Who Broadcast Their Imprudent and Injudicious Behavior Mon, 17 Aug 2015 04:01:54 +0000 Continue reading →]]> Judge WritingType “judges behaving badly” into Google, and you will get over 400,000 hits. There is one story after another about judges acting injudiciously, sometimes criminally. For example, the state of Oklahoma convicted one state judge of exposing himself while presiding over jury trials. He used a penis pump under his robes. His former court reporter testified that she saw him expose himself at least 15 times during a two-year period. In a murder case, the jurors asked the judge about the whooshing sound under his desk. He said he had not heard it. He later said that a fishing buddy gave him the pump as a joke. “It wasn’t something I was hiding.”

When state judges act injudiciously, state judicial discipline is available. The state remedies include the state publicly reprimanding the judge, or suspending him or her without pay for a period, and even removing him or her from the bench. In addition, in many states, the people vote for their judges, so that periodic elections can remove embarrassments.

No so for federal judges. Their lifetime tenure and salary protection make them immune from effective discipline, although Congress can impeach for serious offenses—a rarely used remedy, unless the federal government convicts the judge of a felony. Even then, the judge remains a judge and collects his salary, while serving time in prison, until the House impeaches, and the Senate removes the federal judge.

The framers of our Constitution gave federal judges lifetime tenure and salary protection to to make judges independent, not to authorize them to act with gay abandon. Some judges do not understand that, when they ascend to the bench, they are supposed to leave their politics behind.

Let us consider District Judge Richard Kopf of the District of Nebraska. He wrote a blog he calls, Hercules and the Umpire. In Burwell v. Hobby Lobby Stores, Inc. (2014), the Supreme Court held that a regulation of Health and Human Services could not force Hobby Lobby to pay for abortifacients to give to its employees. Congress could pay for the abortifacients if it chose to do so. There would be no constitutional problem with that. Indeed, Congress could distribute free abortifacients on vending machines each street corner, but Congress (actually, in this case, the Secretary of HHS) could not force one private party to pay for another’s abortion. That violated a federal statute directly on point. The decision protected the religious liberties of the employer.

Judge Kopf published his analysis of this decision in is blog. It was pithy: “As the kids say, it is time for the Court to stfu.” Where he prints “stfu,” he added a hyperlink to the Urban Dictionary, helpfully explaining to the reader what “stfu” means. All in all, for that one posting, one sees the term “stfu” 64 times. Kopf says that the majority decided as they did because they are Catholics. Kopf, by the way, compares his own legal analysis to that of the late Professor Alexander Bickel of Yale, whose writing is more eloquent.

Judge Kopf’s blog gave him 15 minutes of fame in the popular press, with an article in the Huffington Post and a few other places about his language. Not content with just 15 minutes, he later decided to attack Senator Cruz. On July 6, 2015, Judge Kopf told us, “Senator Ted Cruz is not fit to be President.” I hold no brief for Senator Cruz; I do wonder, however, why federal judges (who are supposed to leave their politics behind when they assume the bench) would signify their disapproval, rebuke, or endorsement of any presidential candidate.

If Judge Kopf wondered whether it was ethically proper to give his official seal of approval or disapproval to a presidential candidate, he was not cast adrift with no navigational aids. The Administrative Office of the U.S. Courts publishes is Code of Conduct for U.S. Judges. The very first sentence provides, “Federal judges must abide by the Code of Conduct for United States Judges, a set of ethical principles and guidelines adopted by the Judicial Conference of the United States.”

The title of Canon 5 provides, in bold letters no less, “A Judge Should Refrain from Political Activity.” Canon 5A(2) states and a judge should not “make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office.” [Emphasis added] That sentence is not difficult to understand. The Administrative Conference also provides ethics opinions to explain further what is not permitted. The Committee on Codes of Conduct Advisory Opinion No. 19 (June 2009) explains that Canon 5A(2) is so strict that the judge should resign membership in a political club advocating and maintaining the principles of any political party even though the judge does not actively participate in the club.

In case one wonders what about Senator Cruz so irked Judge Kopf to proclaim his public opposition to Cruz’s candidacy, Kopf—who concedes that he should not be handing out such pronouncements—tells us in no uncertain terms:

As a federal judge, I am duty bound not to play politics. However, when a politician makes an extreme proposal [emphasis added] to amend the Constitution and fundamentally alter and harm the federal judiciary and the Supreme Court, I have the right as a federal judge, and dare I say the duty, to respond to the proposal. Senator, and Presidential candidate, Ted Cruz has recently stated,

I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.

Because Cruz “is serious” about this “extreme proposal,” Cruz “is demonstrably unfit to become President.” Judge Kopf actually claims that he “did not label Senator Cruz unfit to serve in order to oppose his candidacy”; Kopf could have fooled me. I thought that if you say that Cruz is not fit to become President that means that you oppose his election to that office. No, says Judge Kopf, who claims he made his statement “rather to demolish [sic] and protect us all from his intemperate legal attacks on the Supreme Court.”

Whether one thinks that the idea of having term limits for judges is a bad idea or a good one, a proposal for a constitutional amendment is hardly an intemperate attack or an extreme proposal. In 2009, Professor Paul Carrington of Duke University urged Congress to consider term limits for Supreme Court justices. Last October, Dean Erwin Chemerinsky of the University of California Irvine, said, “I do believe there should be term limits for Supreme Court justices.” He presents his arguments in his article, Ted Cruz Is Right: The Supreme Court Needs Term Limits. Was that yet another extreme proposal or an intemperate attack on the Supreme Court? Chemerinsky argues that judicial elections are not the answer. Instead, he proposes that each justice should be appointed for an 18-year, non-renewable term, thus creating a vacancy every two years. He develops this idea in one of his recent books. Linda Greenhouse has also proposed 18-year terms.

Polls show that a large majority of Americans, without regard to party, support some sort of term limits for U.S. Supreme Court Justices. Last June, the Supreme Court ruled held that there is a constitutional right to same-sex marriage nationwide (a result that drew popular support) and that it would reject another challenge to President Barack Obama’s healthcare law (which does not enjoy such widespread support). A month after those two cases, a Reuters/Ipsos poll showed that the people, in general favor term limits for Justices: 66 percent of Democrats, 74 percent of Republicans and 68 percent of independents all favored the 10-year term limit for Justices. Are two-thirds of Democrats “intemperate” because they want limits on Supreme Court Justices that are stricter that what Cruz proposed?

Judge Kopf no longer updates his blog. He shut it down on July 9, 2015 (“I am today pulling the plug”), three days after he told us that Cruz is unfit to be President. His pages are still available on the web, but he no longer updates. Why? He says that it is not because of any judicial discipline, and anyway, any discipline complaint “would not discourage me from blogging,” he adds. In addition, “I am not pulling the plug because of any mental or emotional struggles or treatment.”

Instead, “I am pulling the plug because I learned a couple of hours ago about a discussion held at a retreat for our employees.” What did he learn? The Chief Judge asked, “how many of the employees felt the blog had become an embarrassment to our Court. The great majority raised their hands.” (Emphasis added.)

That is why he is pulling the plug. He is an embarrassment to the federal courts.

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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UC Story: Parting Reflections as I Transition Away From the University of California Fri, 14 Aug 2015 04:01:34 +0000 Continue reading →]]> University of CaliforniaWhat can I say about a university system that I am leaving after twenty-three years as a professor? That it is extremely impressive. And overly bureaucratic. And that it is facing serious challenges because of a changing California landscape. And that I shall miss it dearly even as I look forward to new adventures and opportunities.

Today is literally my last day (for now, at least—I suppose one never knows what will happen down the road) as a professor and administrator at the University of California. I leave the UC Davis campus to begin the deanship at the University of Illinois College of Law this weekend. Having joined the UC system as a professor over two decades ago, and having taught not just at Davis but also at UC Hastings and (as a visiting professor) at UC Berkeley and UCLA, I’d like to use the space below to offer a few remarks about the remarkable UC system before I depart.

Still the Greatest Public University System in the World

When Californians created the “Master Plan” for higher education about 50 years ago, they had in mind not just maintaining one or two great university campuses, which UC Berkeley and UCSF (in health sciences) undeniably were, and UCLA was quickly becoming, but a great system of public university campuses. And in that ambition they clearly succeeded. It’s hard to believe that until the early to mid-1960s, the UC campuses at San Diego, Santa Barbara, Davis, and Irvine either didn’t exist, or were extremely small and limited in scope. Today all of these campuses are major, comprehensive, global research universities (and the campuses at Santa Cruz and Riverside have also earned acclaim in selected areas). Indeed, it is hard to argue that any other state (or nation) even comes close to the University of California, as a system (maybe the Indian IITs in STEM fields). To be sure, there are public flagship universities in other states (Michigan, Virginia, Illinois, Wisconsin, Texas, North Carolina, and Washington come to mind, and there are others) that are superb universities that rival even the best of the UCs, but in each of these states there is one—in some instances perhaps two—public university campuses that could compare with any of the top six or seven UCs.

Consider last year’s US News rankings of America’s top national research universities. If we look at where public universities placed in relation to each other, the UC system claimed the first, second (tie), eighth, ninth, tenth, and eleventh (tie) slots (with only Michigan, Virginia, North Carolina, William and Mary, Georgia Tech, and Illinois among schools from other states placing in the top dozen publics). Or consider the most recent British Times Higher Education World University Rankings (which uses a different methodology than US News and which rates universities not just in the United States but from around the world). Of the top 50 global universities overall, twelve are American public universities. They are, in order: UC Berkeley, UCLA, Michigan, Washington, Georgia Tech, Texas, Illinois, Wisconsin, UC Santa Barbara, UC San Diego, Minnesota, and North Carolina. Again, the list is dominated by UCs—4 of the 12 (indeed 4 of the top 10) are part of the UC system.

An Internal Challenge to the University of California: A(n excessive?) Zeal for Process

None of this is to say the UC campuses don’t have their challenges. One that I gleaned up close from my perspective as an associate dean at UC Davis is that the University of California is extremely bureaucratic. I fully understand that public universities are obligated to go through complex and often cumbersome processes from which private universities are freed. And I don’t delude myself into thinking that Illinois or other great public universities are vastly less burdened by paperwork than the UC system. And, finally, I think there is often tremendous upside to having internal campus processes that promote accountability and productivity; when I compare the processes at UC Davis to those at UC Hastings College of the Law (which is affiliated with the University but which is not part of a full-fledged UC campus and instead is free-standing), I think the fact that at Davis our law faculty must demonstrate their worth to physicists, economists, and historians on campus increases general productivity more than would be the case where a law school stands alone and needn’t prove itself to other units on campus.

But having said all that, I must also add that the level of detail and redundancy in the memos that need to be written, reincorporated, reconfigured, and reprocessed in the UC can be surprising. So too is the number of committees that often must approve simple matters and the time that elapses before important decisions on which people are anxiously waiting can be executed. Colleagues from other universities are also frequently surprised by the need to obtain extramural reviews before UC faculty members can be promoted to various steps along the academic personnel ladder, even when a candidacy is a no-brainer. And the relationship between the UC Office of the President in Oakland, California (which oversees the whole system) and the various campuses is complicated and opaque.

As someone who teaches and writes about procedures used by government, I appreciate that procedural systems are often designed with the hard cases, and not just the easy cases, in mind, and that it may be difficult for a variety of reasons to treat particular individuals or departments differently from others. But public universities are not just public – they are universities too. And as universities must become more efficient and streamlined in a globally competitive marketplace, I hope the University of California system can continue to take advantage of its vast networks both within and across campuses, but do so in a way that frees up professors to focus on what they do best—research and teaching.

More Vexing External Challenges to the University: The Legislature and the Alumni

From my perspective, the biggest challenges to the UC over the last few decades arise not from within, but from the lessened support it has externally—in the legislature and, importantly for the future, among many alumni. It is no secret that since the 1990s, state funding for the University (in inflation-adjusted terms) has dropped precipitously. While such a decline may be seen in other states too, it is particularly stark to see it in California, where the Master Plan was a bold statement that California would be unique in its ambitions for and commitment to public higher education. It’s hard to know exactly what accounts for the drop in public funding in California. The money that has gone into prison operations and other aspects of the corrections budget is part of the explanation. So too is the related fact that public universities are one of the few components of the state budget whose yearly allocation is not predetermined by a formula adopted by voters in one of a number of statewide initiatives; as more and more of the California state budget is constrained by these voter-enacted measures (e.g., K-12 education, the biggest single item of state spending, is protected by Proposition 98), the few items that lack a voter-backed claim to a particular budgetary allotment are pitted against each other for the budget scraps.

As important as these technical fiscal barriers are, I sense as well that elected leaders in Sacramento don’t connect with the University the way they did when I was an undergraduate at UC Berkeley 30 years ago. I have not done empirical research, but I would be surprised if the percentage of state legislators who are themselves graduates of a UC campus has not declined since the 1980s. Why this might have occurred is not easy to say, but it does seem that being a legislator in California now is less attractive than it used to be—because of low pay, term limits, and intense partisanship—so that many successful UC alums who in earlier times would have considered public service might be less inclined to do so today. It also doesn’t help matters that current Governor Jerry Brown, himself a graduate of UC Berkeley, seems to think that the University spends too much money on lavish facilities, light teaching loads, and high executive pay. (And news accounts of retiring UC executives being paid lots of money as they retire don’t improve perceptions in Sacramento.)

On top of all this, my (admittedly very anecdotal) impression is that many well-heeled alums of the UC (especially alums of its strongest campuses), who once were very enthusiastic about their alma maters and all that they offered, have become less enamored of the system, especially as their own children and the children of friends and relatives are not being admitted to the campuses of their choice and instead are having to attend private universities or public universities in other states. I can tell you that where I currently live (five miles east and in the shadow of UC Berkeley) there are countless Cal alums who feel less fond for Berkeley upon seeing so many talented children in this area being rejected when they apply to Berkeley or other very competitive UC campuses. I don’t know whether, in reality, it is considerably harder to get into Cal now than it was a generation ago (and admission rates themselves say very little about that because many more non-competitive students apply today on account of the ease of application). But it may be harder for certain kinds of children—i.e., able, suburban, affluent children who test well but who may not rank at the top of their very talent-rich public high schools—to get in, as the University has focused very heavily on high school grades and also on socioeconomic diversity. And whether it is or isn’t harder for these children to get in, I do sense that parents believe it is harder for them to be admitted than it used to be. (Some of the things critics also often believe, such as the notion that out-of-state students are crowding out Californians, simply aren’t the case, as I explained in an earlier column). And these are often the parents who not only would be called on to make donations to the University, but also the parents who might have influence with various state legislators and other key players in this complex system.

So I see the biggest looming challenge for the UC (and perhaps other state systems too—I don’t know) to be the potential emotional disinvestment by large numbers of successful and influential alums because their children are often not being admitted.

Farewell, dear University of California. As the title and first paragraph of this essay (a play on Erich Segal’s Love Story) suggest, I have deep affection for this extraordinary institution. You will always be a part of me, and I hope that in some small way the converse is also true.

Vikram David Amar is the Iwan Foundation Professor of Law and the dean at the University of Illinois College of Law. Previously, he served as 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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Should We Expand Social Security, Do Nothing, or Do Something Else? Thu, 13 Aug 2015 04:01:01 +0000 increased. Continue reading →]]> Economics ConceptSocial Security turned eighty years old this week. Should retirement benefits paid by Social Security be increased? That question might seem odd, because most discussions about Social Security over the last few decades have pitted critics of the system who say that Social Security benefits must be cut (with many of these critics preferring to privatize the whole system) and those like me who have argued that the system is fine as it is (or at most that it might need to be tweaked). The conversation has not, however, generally even considered the possibility of expanding Social Security. It has always, it seems, been a discussion about “solvency” and what that means, for the system as a whole and for the future of younger Americans.

The surprising thing is, however, that the substantive debate over solvency and those related issues is over. In a Verdict column earlier this week, I discussed some of the most common falsehoods that have been leveled repeatedly against the Social Security system over the past few decades. The pro- versus anti-Social Security debate is truly odd, because there really is nothing to the arguments of people who try to scare post-Baby Boomers by talking about Ponzi schemes, or the purported miracles of private accounts, or the supposedly “empty” trust fund, and so on. That does not mean that the fear-mongerers will ever give up, but they have been reduced simply to repeating false claims with ever-intensifying certitude. (See also “denials of climate change.”)

The worst that can actually be said about Social Security as it currently stands is that, depending on what happens over the next few decades, retirement benefits might—might—end up being re-set in the future. Why do I say “re-set” rather than simply “cut”? Because if, as the latest “mid-range” (but actually pessimistic) forecast from Social Security’s trustees turns out to be true, benefits starting in 2034 would need to be reduced by about 21 percent, compared to the scheduled benefit levels. But, as I described in another Verdict column two years ago, because future benefits are forecast to increase from today’s levels, the possibly reduced benefits after a cut in 2034 (or in whatever year such a thing might happen) would be roughly the same as they are today, adjusted for inflation. Compared to today, therefore, there would be no cut. Even that outcome is avoidable in many ways, but if it were ever to happen, it would hardly be the disaster that Social Security’s opponents claim.

Even though those who attack Social Security cannot win the debate on the merits, as I noted above, they have succeeded in putting Social Security’s supporters on the defensive. Large numbers of young people, no matter their political affiliations, have been misled through constant disinformation into believing that Social Security “will not be there when we retire.” Even many Democrats in Congress, as well as the Obama Administration, have foolishly put Social Security on the table in budget negotiations, believing that when it comes to retirement benefits, there is nowhere to go but down.

In the last few years, however, there has been some pushback from the progressive wing of the Democratic Party. Former Senator Tom Harkin of Iowa issued a proposal to increase (and pay for) expanded Social Security benefits for low- and middle-income retirees, and Harkin’s project has new champions in Senators Sherrod Brown, Elizabeth Warren, and Joe Manchin, as well as many other Democrats in Congress, and it is becoming increasingly popular among progressives across the country. It is also popular with likely voters, more than three-fourths of whom have told pollsters that they support expanding Social Security.

But is it a good idea? Should Social Security’s tax and benefit structure be changed to increase benefit levels for those who are barely getting by, and to make the system more economically progressive? Are there any alternatives to doing so that would avoid the political or economic pitfalls that might make Social Security expansion problematic? Unlike the debate over cutting Social Security, which is entirely one-sided, the debate over expanding Social Security is surprisingly nuanced. Even progressives could reasonably oppose Harkin’s plan, either to stand pat with the current system or to propose an alternative plan. Although I ultimately come down in favor of those who would push for expansion, I am the first to confess that this is a very difficult set of questions.

The Need for Social Security in an Age of Retirement Insecurity

The traditional way to think about retirement security in the United States has been to describe each retiree’s “three-legged stool”—the combination of a pension plan provided by the retiree’s lifelong employer, plus government-provided Social Security benefits, plus the worker’s private savings accumulated over a lifetime. A well-planned retirement could draw from all three sources, and we generally believed that nearly every worker could thus count on enjoying a dignified retirement.

Unfortunately, the rise in inequality that took shape beginning with the Reagan years devastated two of the three legs of the stool. Private pensions went the way of the dodo bird, done in partly by increasing worker mobility and partly by deliberate government policies that allowed or even encouraged companies to supplant traditional pensions with 401(k)-style plans—when, indeed, companies chose to offer any retirement security options at all.

At the same time, workers’ wages and salaries began to stagnate, with even highly productive workers seeing little or nothing in the way of raises. This made it much more difficult to save as much money as those workers might otherwise have saved, and it certainly made it all but impossible for workers to contribute to 401(k) plans in amounts necessary even to come close to replacing traditional pensions.

The net result of all of these changes has been devastating for workers’ retirement finances. One-third of retirees now rely entirely on Social Security for their retirement income, and as more and more companies drop pension plans, that number will rise. The people who have put money into 401(k) and other saving vehicles generally have not put nearly enough money into those accounts to provide even moderate economic security. The wealthy are doing well, of course, in both their working years and afterward. Nearly everyone else, however, faces an increasingly uncertain future.

These facts certainly make it clear why no one—and certainly not Democrats—should favor proposals to reduce Social Security benefits (even indirectly, such as the White House’s flirtation with the idea of reducing cost-of-living adjustments). The average Social Security benefit is currently only $16,000 per year, so if anything, we really should be looking to increase benefits. This is anything but a lavish program.

The case for a benefit increase is, therefore, quite strong. And the leading proposal to do so is fully funded, so that we do not have to go back over all of the arguments that I discussed in my Verdict column on Tuesday. The only question is whether to fight this fight now, which requires looking at both the politics and the alternatives.

The Fraught Politics of Social Security Expansion

Even before expanding Social Security recently became thinkable in Washington, progressives worried about the inherent dangers in doing anything to open up Social Security to the legislative process. That is, even if one could imagine some good ways to change the system, the political forces lined up against Social Security would surely try to hijack any legislation in order to make the system worse overall.

This meant that even relatively uncontroversial fixes to Social Security were too dangerous to bring forward. For example, many Democrats would almost surely have by now happily lifted the annual earnings cap on labor income that is subject to the Social Security payroll tax. (I actually would not have supported that particular proposal, for reasons that are not relevant here.) But people who understand the legislative process warned that the bill that would have come out of Congress would quite possibly have included many time bombs and other attempts to undermine the Social Security system.

That strategic concern, however, was based on a situation in which liberals and progressives are on the defensive: “Hey, we agree that there is a solvency problem, and we’d like to fix it now. So here is the minimalist plan to do so. Let’s do that and nothing more.” Now, however, we have a proposal to expand benefits in a way that helps the middle and bottom of the income spectrum, including proposals to finance the increased benefits.

Therefore, the initial negotiating position is no longer merely holding the line, a position from which one can only lose ground. Instead, even after the give-and-take of legislative compromise (assuming that legislative compromise is not completely a thing of the past), the side that is backed by a large majority of people might still accomplish something positive.

Such a positive outcome is not, however, guaranteed. Even extremely popular proposed laws, such as the background checks for gun buyers that were supported by 90 percent of the population after the Newtown tragedy, can still end up going nowhere. And it is even possible that the final result will be a net move backward, not forward.

The political question, then, is not just whether the change would be popular, but whether peeling the lid off of Social Security and allowing the current Congress to root around inside would end in disaster. As I noted above, this is a difficult call. It does, however, seem unlikely that Republicans would actually end up passing highly unpopular benefit cuts, with at worst a deadlock resulting in no changes being made.

All of this is still risky, but it does seem that the upside is large, the downside is small, and the odds are in favor of progressive reform, even in a Congress dominated by Republicans. After all, the most obvious way for Republicans to derail a progressive proposal would simply be to kill it in committee, which would leave us with the status quo ante. We need progress, but at least that would not move us in the wrong direction.

Private Alternatives to Social Security Expansion

Retirement security could possibly be enhanced in other ways, beyond simply increasing Social Security benefits. For example, there are methods—most of which can be set up to be economically progressive—to allow workers to increase their savings levels for their own retirements. This would be a way to bring back at least one of the lost legs of the retirement stool.

How could this be accomplished? Ten years ago, the Bush Administration failed in its attempt to divert Social Security payroll taxes into private accounts, and its failure was well deserved. The problem was that they wanted to take two percent of the 6.2 percent of payroll taxes and divert those funds into private accounts. This set up an immediate problem with the ongoing financing of the system, as it would have reduced the system’s surpluses and then increased the drawdown from the trust fund. It was, in short, a formula to undermine the system.

Liberals, however, have made proposals over the years to encourage people to increase their savings, above and beyond their Social Security payroll tax contributions. In the Clinton years, for example, the administration floated proposals to offer matching savings plans for workers, with the government offering up to (in one plan that I recall studying) seven dollars of government benefits for every one dollar that a worker contributed to her retirement plan.

As appealing as such proposals might be, they have two distinct problems. First, it is not at all clear that people will respond even to very generous matching systems, especially because of the wage stagnation that has made it ever more difficult for families to live from paycheck to paycheck. If people do not contribute to their savings plans, there will be no accumulated savings on which to rely during their retirement years.

Second, and crucially, such a system does nothing at all for people who need money today. This is the same problem that the country faced when we created Social Security eighty years ago. Back in 1935, in the depths of the Great Depression, and with an elderly population that was experiencing crushing poverty, Social Security needed to provide benefits right away.

It is true that the first generation of retirees had not “paid in” to the system, but that was most definitely not the point under those circumstances. The system thus needed to be set up as a pay-as-you-go system, because even though one could churlishly argue that then-current retirees had not “earned it,” at least every other generation (starting with the workers in 1935) could pay their dues and receive their rewards, and the system could continue in perpetuity.

The same logic applies today. Maybe it is true that current and soon-to-be retirees did not pay in as much as they might have, but this is not their fault. And current workers who will finance the current expansion will retire under a system that has been expanded and that will be financed on a pay-as-you-go basis henceforth.

In short, even though it is possible to describe a hypothetical past in which we had set up a retirement system unlike Social Security, and even though we can further describe imaginary pasts in which we had already adjusted taxes to build up the trust fund further, the reality is that we are never in the fortunate position of facing a possible future problem that has no current concomitant need. (And if there really were such a problem that would only exist in the future, the political system would surely ignore it.) The need exists now, and the only way to deal with the problem right away is to increase Social Security benefits progressively, and to pay for it on a permanent pay-as-you-go basis.

The question of expanding Social Security benefits is a surprisingly difficult one. Even though the trends in inequality of the last 35 years make a strong case for action to support the many workers who have been struggling for their entire lives, political risks could result in the system being harmed, rather than helped, when all is said and done. Even so, the need is pronounced, and it is immediate. Although I certainly respect those who worry that the risks are too great, this seems like a very good time to try to make our greatest social program even better.

Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
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