Verdict Legal Analysis and Commentary from Justia Fri, 29 May 2015 04:17:43 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no The Front Against Child Sex Abuse Expands to the Family: Josh Duggar, the Duggars, and What Every Family Should Know About Incest Thu, 28 May 2015 04:00:05 +0000 Continue reading →]]> The war against child sex abuse received an infusion of weapons and power when the Boston Globe revealed the pattern of the cover-up by the Catholic hierarchy in 2001. With horror, the world witnessed secondhand the bishops shuffling pedophiles among parishes and fresh child victims. That same pattern has emerged in state after state, like Pennsylvania, where Philadelphia District Attorneys Lynne Abraham and Seth Williams put together thorough documentation in 2005 and 2011 Grand Jury Reports, and Minnesota, where statute of limitations reform has opened the door to the justice system that in turn has revealed the specifics of the cover-up. The unfolding story has also been told in Australia and Ireland.

These revelations painted a paradigm of adults letting children be abused by other adults. I call it “adult preferentialism.” As adults, we are persuaded that our interests (e.g., reputations and jobs and relationships) are much more important than the needs of children. We worry about the long-lasting effects on our reputations, but expect the kids to “get over it.” It is shocking when revealed, but that paradigm has played itself out in one venue after another since 2001, including (1) multiples of religious organizations from the Jehovah’s Witnesses to the ultra-Orthodox Jews, and (2) sports programs from Penn State football to Olympic swimming and speedskating.

Then elite private schools like Poly Prep and Horace Mann came into the spotlight, as well as public schools. Horace Mann is in the news this week because a coalition of alumnae and experts like Judge Leslie Crocker Snyder, Charol Shakeshaft, and I banded together to find a way to make sure the serial abuse at Horace Mann and the institution’s hardhearted response did not happen at any other private schools. The Horace Mann Action Coalition issued a scathing report this week, replete with important guidelines for private schools.

The Irony Underlying All of these Revelations About Child Sex Abuse: Most Abuse Happens in the Home

While we learned about, discussed, and reacted to the abuse in all of these “safe” venues, the abuse that occurs the most remained unspoken: Incest. There was a time when all sex abuse discussions were taboo; that taboo has persisted with respect to family-on-family abuse. Incest is the last frontier for child sex abuse.

These victims are in many ways the most vulnerable, because they rely for the very roof over their heads and the food on their tables on family members who are either perpetrating the abuse or not rescuing them from it. Not to mention the love of family: We have a cultural expectation (for realists, a hope) that children are in safe, loving homes. That is obviously not true when a parent or both are alcoholics or drug addicts. But when the issue is child sex abuse, it usually remains undercover, often quite literally. The child does not understand this is not a normal childhood, suffers shame and humiliation, and the abuse persists right in front of the people closest to the victim.

The Duggar Moment of Public Education on the Reality of Incest

This week, the Duggar family of TLC reality show infamy became the vehicle for the public to start focusing on sibling (and other familial) incest. The Duggars are part of the Christian Patriarchy movement, which counsels that men are the heads of the household, birth control is prohibited, and women should bear as many children as their bodies can stand. In addition, they deliver pious instructions to their young people that suitors may not engage in intimacy—of any kind. (A “side hug”, however, is not considered intimate.)

In this context, Josh Duggar sexually abused five of his sisters. While that is bad enough, that was not the sole issue the public needs to examine. In addition, his father, Jim Bob, covered it up, and the family faith counseled the traditional, religious, and victim-shaming response to such crimes: Forgive and forget.

The hypocrisy of the Duggars’ no-intimacy-before-marriage message after Jim Bob and Michelle knew that their son had sexually abused his sisters in their home is breathtaking. I feel abidingly sad for these girls. The Duggar parents said show after show that girls who have intimate relations with boys before marriage are dirty and unattractive. It reminds me of the abused girls in ultra-Orthodox Jewish homes, where girls have been treated like damaged goods because they were abused. In both communities, girls are trained to believe that marriage is the highest goal, and purity is a pre-requisite to the best marriage. What is a girl to believe in that context?

Moreover, the “forgive and forget” theme is precisely the wrong message to victims, and to young perpetrators like Josh. Studies show that appropriate treatment of an abuser before he or she reaches age 18 radically increases the odds that the abuser will never do it again. The same is not true for youthful abusers who do not receive this treatment.

This was not the first brush this movement has had with sex abuse recently. Leader Bill Gothard was involved in sexual harassment misconduct that involved underage girls and had to step down. Rule of thumb: Male-dominated institutions where men are unaccountable (e.g., Catholic bishops, ultra-Orthodox rabbis, the prophets of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, or FLDS, and men in the Christian Patriarchy movement) mean more suffering for women and less safety for children.

From a public education perspective, the important moment in the Duggar scandal is this: It is the first time that major national media publicity has spotlighted revelations that a brother sexually abused multiple girls in his own family. This time, the focus has lasted long enough for the millions of family victims to hear that their abuse and suffering need not be secret forever. Finally, the public has been shown the reality that abuse happens in families, that they cover it up, that public declarations of “purity” can be false, and that the victims can remain voiceless and faceless as they have with the Duggars. I hope that this reality does not sit well with the public.

Every Victim Who Speaks Can and Often Does Embolden Another

One constant in these ongoing revelations and public education about child sex abuse has been that when one victim stands up or when the public learns about abuse in a new setting, other victims are often emboldened to step into the light from the shadow of shame and humiliation. They hear and see that we as a society blame the perpetrator and institution, not them. They deserve our sympathy and support, not the judgment they have unconsciously expected. In short, it was not their fault. They were kids.

While the Duggar girls have every right to choose when to speak about their abuse, if ever, other survivors are taking this moment to speak up. Accordingly, it is good to see the #CallThemOut social media movement; survivors are increasingly refusing to keep secret the abusers in the inner circles of their families and classrooms.

I expect that the Duggar disclosures will stir many among the millions of incest victims in the United States to step up. When they do, they may well protect the next generation of children, because the child abuser who starts with one family member not infrequently moves on to another, as Josh Duggar apparently did. This can go on sometimes for generations. Adult abusers don’t age out of their abusive tendencies, and they rarely disclose if they can avoid it.

Sadly, the justice system did nothing to redress what Josh Duggar did, in part due to the inadequacies of the Arkansas statute of limitations. A court has destroyed the records, and the report was made too late for prosecutors to go forward, according to them. Instead, the Duggar family profited from the secrets kept while Americans were misled into thinking that their “purity” was real.

What good can come of the Duggar story? We can’t help victims we cannot see. The paradigm of covering up abuse in religious and educational institutions can now be seen in the family. The public needed to hear this message, as well as the message that being righteously religious does not guarantee child safety.

I hope that many more will now be able to see the incest victims silently situated in their abuse and find ways to help them. It is on each and every one of us to ensure the safety of children across all faiths, cultures, jurisdictions, and, yes, even families.

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 Supreme Court’s Muddle in the Wynne Case Wed, 27 May 2015 04:00:02 +0000 Comptroller of the Treasury of Maryland v. Wynne, a case dealing with the limitations on states’ tax systems implied by the dormant Commerce Clause. Continue reading →]]> Tax ConceptLast week, the Supreme Court issued a ruling in Comptroller of the Treasury of Maryland v. Wynne, a case dealing with the limitations on states’ tax systems implied by the dormant Commerce Clause. On May 20, Professor Michael C. Dorf published a column here on Verdict, in which he used that case to analyze the ongoing debate about the validity of the dormant Commerce Clause as a matter of constitutional law. Professor Dorf specifically stated that he had chosen not to comment on the merits of the underlying tax issue.

In this column, I will analyze the ruling in the case, focusing in particular on the several ways in which the majority’s opinion fails to provide any reasonable rationale for its conclusion, and showing that the ultimate implications of the case are completely unclear. Other than counting as a victory for the named plaintiffs, as well as the anti-tax lobbyists that supported their case, the problem with Wynne is that we now know little more about the limitations on state taxation than we did before the decision was handed down.

The Notion of Cross-Border Tax Disadvantage (Warning: This Turns Out To Be a Red Herring)

By now, we have come to expect that 5-4 decisions from the Supreme Court will find Justice Kennedy siding with either Justices Ginsburg, Breyer, Sotomayor, and Kagan, or with Chief Justice Roberts and Justices Scalia, Thomas, and Alito. Here, however, the breakdown was truly unexpected: Justice Alito wrote the majority opinion, joined by Breyer, Kennedy, Roberts, and Sotomayor, while various dissents were filed and joined by Ginsburg, Kagan, Scalia, and Thomas.

The dissents by Justices Ginsburg and Scalia devastatingly exposed the logical incoherence of the majority’s ruling. Justice Ginsburg, in particular, provided a brilliant analysis. (This might not be surprising, because her late husband was Professor Martin Ginsburg, one of the all-time great legal tax scholars produced by this country.) It is simply astonishing to me that—in a case without any obvious political valence—her opinion did not persuade her colleagues on the other side.

The majority seems mostly to have been disturbed by an aspect of the State of Maryland’s tax system that, in the majority’s words, Maryland admits “has the same economic effect as a state tariff, the quintessential evil targeted by the dormant Commerce Clause.” Unfortunately, it turns out that the majority’s holding ultimately does not target that evil (if it is, in fact, evil at all).

Maryland’s state income tax system levies taxes on both a state-level basis and a county-level basis. The state-level tax was not at issue in the case. Each of the state’s counties can adopt a tax, assessed on the same taxable income that determines one’s state-level liability, to provide revenues for county-level services. Howard County, where the plaintiffs live, imposes a 3.2 percent tax on all taxable income of its residents.

The twist in Maryland’s system is that it does not require the counties to grant a credit for taxes paid by their residents to other states (although Maryland does provide a credit for the state-level tax computation). So, if a Maryland taxpayer earns income in another state, and that other state taxes out-of-state residents on their income earned there, then the taxpayer will pay tax both to their Maryland county and to the other state, assessed on the same income. (All of the decisions in the case refer to this as “double taxation,” a common term that is unfortunately a misleading misnomer. Here, I will refer to this more accurately as a “cross-border disadvantage.”)

Imagine that there are two Howard County residents, both of whom have $1,000,000 in taxable income in a given year. (The Wynnes’ income in the relevant year was about $2.7 million.) One resident earns all of her income from business activities in Maryland, whereas the other earns $200,000 of his $1,000,000 in New York. The “tariff” that so upsets the majority arises from the fact that the Maryland-income-only resident will pay 3.2 percent of $1,000,000 ($32,000) in taxes to Howard County and nothing to any other state, whereas the other resident will pay the same $32,000 plus whatever amount New York State levies on $200,000 of income earned in New York.

The idea, then, is that the Maryland system could be seen as discouraging people from doing business outside the state, if they are sensitive to taxes. If there is a constitutional requirement to prevent governments from imposing such cross-border disadvantages, then that would be grounds to challenge this tax system. The plaintiffs argued that Maryland should be ordered to require its counties to credit out-of-state taxes, such that if New York imposed $32,000 or more in taxes in my example above, Maryland could not collect any county-level tax on that income.

Whose Problem Is It?

The plaintiff’s proposed solution—requiring their home state to adopt a rule to prevent this cross-border disadvantage—is not, however, the only way to solve the supposed problem. In the example above, New York State could be required to waive taxes on income earned by citizens of any state that has a system like Maryland’s. (In fact, only Maryland has such a system, although that is irrelevant to the analysis.) Either way, the cross-border advantage would disappear.

What do we do when the same problem could be resolved in two different ways? At oral argument and in their briefs, the plaintiffs’ lawyers relied on generic invocations of precedent that supposedly required Maryland to give way, yet they offered (even under direct questioning from Justice Ginsburg) no principled reason why the burden could not, or should not, be placed on the non-resident state.

How would we decide which way to go in solving this cross-border disadvantage? Maryland argued that the benefits provided by the county to its residents—excellent public schools, fire service, police protection, and so on—justified the county in treating two taxpayers with similar incomes the same. The plaintiffs, on that theory, had chosen to pay taxes to a second jurisdiction, when they could have decided that they were perfectly happy making money in their home state. In any case, both million-dollar earners pay $32,000 to Howard County. What could be more even-handed?

The contrary argument is that other states are perfectly within their rights to impose taxes on activities within their borders, and if an out-of-state resident wants to take advantage of the business opportunities that are supported by that state’s services, then the outsider should still pay taxes to the other state.

This argument is a bit more difficult to sustain, however, when the income that is being earned “in the other state” is, for example, derived from financial investments. Saying that a person who never sets foot in New York, but who makes some financial investments there, is benefiting from New York’s public services, is a bit of a stretch. It is not impossible to find some connection, but at least in degree, it is likely to be quite minimal.

Happily, however, there is a longstanding doctrine (more firmly established than the contested precedents on which the plaintiffs relied, and in fact conceded as a core principle by the Wynnes’ attorneys) that states are permitted to impose taxes on all of their residents’ incomes, wherever those incomes are earned. At best, then, the plaintiffs’ case against Maryland would seem to require the Court to overrule itself and to hold that the right of states to tax their residents’ income disappears when another state taxes that income.

Moreover, even if it had happened that New York was willing to waive taxation on out-of-staters’ New York-sourced income, the plaintiffs claimed that the Maryland system was still unconstitutional, because so long as Maryland kept its existing system, some other state could someday impose a tax on a Marylander that would create a cross-border disadvantage. The mere possibility that such disadvantage could ever exist was, by that analysis, enough to make Maryland’s approach unacceptable.

In any event, at this point of the analysis, it would appear that Maryland should be required to abandon its system of imposing taxes on all of its residents’ income. In fact, however, the majority does not reach that conclusion.

The Internal Consistency Test and the Disappearance of the Majority’s Concern for “Double Taxation”

So far, so bad. Matters become even worse, however, when we get to a second relevant aspect of Maryland’s tax system. It turns out that, although Maryland only credits out-of-state income on the state-level income tax (but not on the county-level tax, which was at issue in the case), Maryland does in fact tax the Maryland-sourced income earned by out-of-staters.

One can see why the optics of this might raise the ire of the majority. Maryland seems to be trying to have it both ways, collecting taxes on outsiders while not crediting the taxes that its residents pay to other states. Beyond the optics, however, why is this a constitutional problem? Why is it not the case that Marylanders could simply say to their legislators, “We don’t mind taxing out-of-staters, but stop taxing us on out-of-state income”? And if that political argument fails, why is that not the end of it?

The majority relies on a so-called “internal consistency test,” which essentially says that a state can adopt any tax system, so long as such a system would not lead to cross-border disadvantages if every other state were to adopt the same system. The majority is correct that, although a state like New York could cure the cross-border disadvantage that is created by the interaction of the current respective state tax regimes, if New York instead adopted a system exactly like Maryland’s, there would still be cross-border disadvantages. Thus, Maryland’s system is not internally consistent.

Although Justice Scalia correctly questions the very legitimacy of the internal consistency test, the more telling point that both he and Justice Ginsburg make in their dissents is that the internal consistency test does not, in fact, solve cross-border tax disadvantages.

The Ginsburg dissent lays out the logic, showing that under the internal consistency test, Maryland could keep its current rule that all residents’ income (including income earned out of state) is taxable, so long as it stopped taxing out-of-staters’ incomes earned in Maryland. If every state were to adopt such a system there would be no cross-border disadvantages.

But this would not solve issue that motivated the plaintiffs, because the reason that they pay higher total taxes than their neighbor is not that they pay more to Maryland and Howard County, but that Maryland’s counties do not credit the taxes paid to other states. As Justice Scalia noted with his usual acidity, referencing his disdain for the artificial origins of the dormant Commerce Clause, “it is only fitting that the Imaginary Commerce Clause would lead to imaginary benefits.”

In short, the tax disadvantage of which the plaintiffs complain is not addressed by the internal consistency test. If New York decides to tax only income that is earned in New York (crediting taxes for income earned elsewhere), its system would also pass the internal consistency test. It is the interaction of that internally consistent system with Maryland’s new internally consistent system that creates the cross-border disadvantage.

The only way to actually eliminate cross-border disadvantages, then, would be to require that all states in fact adopt the same internally consistent system. And that is a level of judicial activism to which the majority does not aspire.

At the end of the day, then, we have a majority opinion that is motivated by the “quintessential evil” of state laws that create cross-border disadvantages, yet that opinion fails to justify not adopting one of two methods that would actually solve that problem (if, again, it is actually a problem at all, constitutionally or otherwise). To top it all off, the majority ultimately holds that the State of Maryland must refund money to its own residents who would have paid exactly the same total amount of money to Maryland and Howard County under an internally consistent rule—and that rule would be identical to the part of Maryland’s current system that affects these taxpayers.

Some Supreme Court opinions might be bad on the merits, but at least we know what the Court was actually thinking, and we know what is and is not allowed in the aftermath of the Court’s ruling. Here, the stated concern for interstate neutrality turns out to be empty, and the State of Maryland is left to fix its state tax system in some way that would not hypothetically be disadvantageous to cross-border trade. This is hardly the worst decision the Court has ever issued, but its internal incoherence—incoherence that was highlighted by two justices who almost never agree on anything else—is nonetheless disturbing.

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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The More Things Change, the More They Stay the Same: Parentage Rules for Married, Same-Sex Couples Tue, 26 May 2015 04:01:11 +0000 Continue reading →]]> Stepparent ConceptParentage law—the rules that determine a child’s legal parents—has had to bend at many points in the past few decades to accommodate the so-called new family. Historically, parentage was determined largely by marital status and biology (often one and the same). But the rules have changed in many states to accommodate reproductive technology, unmarried parents, and same-sex co-parenting, each of which throws a wrench in the traditional model.

But with the rapid legalization of same-sex marriage in many states across the country (and potentially soon in all, depending on the outcome of the pending Supreme Court case, Obergefell v. Hodges, discussed here), courts must now deal with an interesting twist. If same-sex couples are permitted to marry, should parentage once again turn primarily on marital status? That question is raised in two recent cases involving same-sex couples—one married, one not—which I will discuss in this column.

Adoption of a Minor: Two Married Women and a Donor

The dispute in this case arose when J.S. and V.K., a married, same-sex couple, filed a joint petition to adopt the biological child of J.S. The two women, already married, together planned for the conception and birth of their son. He was conceived using in vitro fertilization, with sperm from a known donor. The two women were listed on his birth certificate as the parents, and Massachusetts law clearly recognizes both the biological mother and her female spouse as the legal parents of any child born during the marriage. Nonetheless, the couple sought a decree of adoption to avoid the possibility that their joint parentage rights might not be recognized outside of Massachusetts.

Adoption decrees are entitled to the most exacting form of full faith and credit in other states—meaning they merit automatic recognition—while parentage rights arising from marital status or any other factor can be denied recognition by other states. (The problems associated with interstate parentage recognition are discussed here.)

The question for the Supreme Judicial Court of Massachusetts in Adoption of a Minor is whether the known sperm donor is entitled to notice and the opportunity to object to the child’s adoption by his biological mother and her wife. This turns, as so many questions raised by the new family do, on parentage law.

In order for an adoption to take place, a child’s “lawful parents” (in Massachusetts’ particular terminology) must consent. (A child above the age of 12 must also consent.) And only those whose consent is required are entitled to notice that an adoption petition has been filed. For this child, whose consent is required?

The biological mother is automatically entitled to full-blown parental rights. Outside of an enforceable surrogacy arrangement, this is the case under every state’s parentage law. It is also generally the case that a woman’s husband is presumed to be the legal father of children born during the marriage. This rule operates both as a proxy for biology—the husband usually is the father of his wife’s biological children—and as a means to ensure marital stability. The marital presumption, as this rule is called, was traditionally conclusive, but today is more likely to be rebuttable. For a child conceived with sperm from a donor, the husband is still deemed the legal father in most states as long as he consented to the insemination (or use of other reproductive technology).

As states have begun to allow same-sex couples to marry, the marital presumption has been applied on gender-neutral terms. That is, the wife of a biological mother is entitled to the benefit of the marital presumption, even though she does not, in most cases, have a genetic tie to the child. (The exception is rare, but not unheard of in the case law: one woman provides the egg, while the other gestates the child. In that case, the woman who gives birth is entitled to the automatic parental rights, while the woman who provided the egg is the biological parent.) Thus, the reason for extending the marital presumption to a non-biological parent arises squarely out of respect for the adult relationship and the assumption that married couples who bring children into the world do so with the intent to raise them together. And, the Massachusetts court made clear, the marital presumption applies with equal force in a case of artificial insemination as long as she consented to the procedure—just as if she were a husband who was not the biological father.

The court in Adoption of a Minor thus concluded that both J.S. and V.K., her consenting spouse, were the “lawful parents” of the child. But is the known donor also a legal parent? Sperm donors are generally subject to a rule of non-paternity as long as the sperm was donated to someone other than the donor’s wife. This is true in most states even if the donor is known rather than anonymous as long as the woman and donor did not have a preconception agreement to parent the child together. Whether this last rule applies in Massachusetts has never been considered by an appellate court, but the state’s highest court in this case was unwilling to require consent from a man who “may have a theoretical basis to attempt to establish parentage in the future,” but has no tangible or present claim to legal parent status. Rather, the court concluded, this child had only two lawful parents—coincidentally, the same two people who sought to adopt him.

The lesson here is that a married, same-sex couple, while in some ways cutting edge, is subject to the very same traditional rules that have governed parentage for centuries. (For an example of this same trend in a slightly different doctrinal context, read here.)

In re Madrone: An Unmarried, Lesbian Couple and a Child

Now let’s consider another lesbian couple: Karah and Lorrena Madrone. They also ended up in litigation of the parentage of a child, who was born to Lorrena while she and Karah were in a committed, but not formally recognized relationship, at a time when Oregon did not permit same-sex couples to marry. The question for the appellate court in Oregon, in In the Matter of Madrone, was whether Karah, like Lorrena, is a legal parent of the child who cannot be denied contact unilaterally by Lorrena.

But let’s back up a step. Karah and Lorrena met in 2004 in Oceanside, Oregon. As their relationship progressed, Karah relocated to Colorado to be with Lorrena while she recovered from a serious car accident. There, the two women participated in a “commitment ceremony,” with no binding legal effect, and with disputed meaning to the respective parties. They later moved back to Oregon together and eventually bought an inn that they co-managed. In 2007, Lorrena conceived a child—with sperm from two known donors so the true donor’s identity would not be known. After the baby was born, the two women picked a new last name for both of them and the baby, Madrone. Karah was not listed on the birth certificate, but the two women co-parented the child from birth. The following year, the two women entered a registered domestic partnership.

In 2012, the parties split up, and Lorrena denied Karah any contact with the child. This denial led to the litigation—Karah sought to establish herself as a legal parent with rights to custody or visitation. Is she entitled to that status?

Under Oregon law, a husband is the legal father of a child born to his wife during marriage, even if conceived with sperm from a donor. In a prior case, Shineovich and Kemp (2009), an Oregon appellate court held that it would be unconstitutional to deny same-sex couples, who, at the time, were not entitled to marry, the benefit of the same marital privilege. Thus, the court held that the remedy for the constitutional violation was to “extend the statute so that it applies when the same-sex partner of the biological mother consented to the artificial insemination.”

But does this extension cover all unmarried, same-sex couples? Karah argued that it should apply to any couple who together planned for the conception and birth of a child. In other words, intent should be the touchstone. But the appellate court in Madrone disagreed. The relevant statute, it reasoned, granted legal parentage of donor-conceived children only to spouses. And the court extended the rule in Shineovich simply to cure the unconstitutional discrimination on the basis of sexual orientation—if same-sex couples were not permitted to marry, then it would be unfair to refuse them any path to parentage of a partner’s child. But the statute does not reveal any legislative desire to assign parentage based on intent. Rather, it reflects the importance of choice—whether a couple made the choice to marry and whether the husband made the choice to consent to the insemination of his wife with someone else’s sperm.

Thus, the Madrone court ruled, the touchstone of the inquiry is whether a couple, legally unable to marry, “would have chosen to marry before the child’s birth had they been permitted to.” This rule, the court explained, both cures the constitutional violation of a narrower reading of the statute, and also honors the legislature’s desire to apply the parentage privilege only to married couples. (An unmarried male partner has no rights with respect to a child conceived by a female partner with sperm donated by another man, regardless of whether the couple intended, prior to conception or birth, to co-parent any resulting child.)

For this couple, this standard requires a trial. The relevant fact—whether the couple would have chosen to marry if given the opportunity before the child’s birth—was in dispute. The appellate court enumerated a long list of factors that might be relevant, including, but not limited to, whether the couple took advantage of other means of formal recognition (e.g., domestic partnership); whether they had children during the relationship and shared childrearing responsibilities; and whether they had indicia of marriage like rings, shared surnames, or commingled finances.

For other couples, however, the statute presumably applies only to married, lesbian couples, now that Oregon, like so many other states, allows same-sex couples to marry. We are thus in some sense back where we started—in a world in which marital status is inextricably tied to parentage.


Neither of these decisions changes the world, but they both reflect the changing world. And yet, with all the advances in marriage equality, we are seeing a return to marriage as the primary source of legal parentage. As Jean-Baptiste Alphonse Karr wrote in the January 1849 issue of his journal Les Guepes, “Plus ça change, plus c’est la meme chose.” And as translated (and set beautifully to folk music by Mary Chapin Carpenter): The more things change, the more they remain the same.

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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The Significance of the Supreme Court’s Williams-Yulee Decision Upholding Florida’s Regulation of Judicial Elections Fri, 22 May 2015 04:01:57 +0000 Williams-Yulee v. Florida Bar. In that case, a 5-4 majority of the Court upheld a Florida law that forbids candidates running in contested elections for judicial office from personally soliciting campaign contributions. Amar argues that the ruling provides important insights about First Amendment doctrine and also about the membership of the Roberts Court. Continue reading →]]> Gavel and MoneyA few weeks ago the Supreme Court handed down an important yet under-noticed case, Williams-Yulee v. Florida Bar, in which a 5-4 majority upheld a Florida law that forbids candidates running in contested elections for judicial office from personally soliciting campaign contributions, even though the state permits such candidates to raise money through surrogates (campaign committees) and also allows candidates to find out who contributed to their campaigns. In the space below, I identify four key takeaways from this “sleeper” ruling by the Court, a ruling that affords important insights about constitutional doctrine and also about the membership of the Roberts Court.

  1. The Speech Clause Juggernaut May Be Losing Steam

The (unsuccessful) challenge to the Florida law was brought under the First Amendment; the defendant in Williams-Yulee argued that Florida’s ban on personal solicitation was a regulation that singled out certain speech—a personal request for money—because of its content, in violation of free speech principles. The Court acknowledged that the Florida law was a content-based regulation of political speech (and, as explained in more detail below, thus purported to apply “strict scrutiny” to the matter), but nonetheless upheld the law because of the important countervailing interest in preserving public confidence in the integrity of the judiciary.

In holding that public perceptions of integrity should carry the day, the Williams-Yulee ruling stands in contrast to the great majority of free speech cases decided by the Court over the last generation. Since the early 1990s, the overwhelming majority of plausible free speech claims (and the defendant’s claim in Williams-Yulee was certainly plausible) that have reached the Court have prevailed, and expressive autonomy has regularly trumped competing constitutional and societal values. Over the last quarter-century, the Court has invoked the Speech Clause to invalidate federal, state, or local laws and regulations in well over fifty cases, averaging close to three cases each year, a substantial number given the Court’s small yearly docket of between seventy and eighty cases for most of that period.

But a quantitative inquiry tells only part of the story. It is particularly noteworthy that First Amendment claims grounded in expressive autonomy rights have not just been winning, but have been winning against—and requiring significant sacrifices of—other values that traditionally have enjoyed high esteem in our legal, social, and constitutional traditions, including the efficient functioning of labor unions, the protection of military honor and military families, antidiscrimination laws and norms, election and campaign finance regulation intended to make elections more free and fair, parental control over the upbringing of their children, and consumer protections, among others.

Whether Williams-Yulee represents simply one exception to this great tide of free speech victories, or instead should be viewed as part of the beginning of a more balanced approach to free speech cases remains to be seen. There are at least two (and maybe more) other interesting and difficult free speech decisions yet to be decided this Term. The first is a case that considers the extent to which the First Amendment protects against prosecution individuals who utter words that cause objectively reasonable people to feel fear (Elonis v. U.S.), and the second is a case about how readily a State can discriminate among messages on personalized automobile license plates (Walker v. Texas Division, Sons of Confederate Veterans). It is possible that the free speech claimants in both of those cases (who assert plausible, if to my mind flawed, free speech arguments) will also lose. If that happens, commentators will begin to wonder whether the free speech juggernaut is indeed beginning to slow.

  1. “Strict Scrutiny” Is in the Eye of the Applier

As I noted above, the Court in Williams-Yulee applied strict scrutiny—which requires the government to prove that the law in question is narrowly tailored to serve a compelling interest—to the Florida election regulation. But, as Justice Scalia remarked in dissent, “[although the Court] purports to reach [its] destination by applying strict scrutiny, . . . it would be more accurate to say that it does so by applying the appearance of strict scrutiny.” In particular, the Court seemed quite tolerant of underinclusiveness in Florida’s scheme, whereas significant underinclusiveness usually prevents a statutory scheme from being considered “narrowly tailored” in the way that strict scrutiny dictates.

For example, the defendant pointed out that Florida permits candidates to write personal thank-you notes to donors (guaranteeing that the candidates will know who the donors are) and also allows campaign committees to act explicitly on behalf of candidates in directly soliciting donations. If personal solicitations by candidates undermine “public confidence in judicial integrity,” why do not these other practices create the same harm? The Court acknowledged that Florida does allow activities that might create some suspicion over whether judges are beholden to or favor donors, but concluded that “narrowly tailored” does not mean “perfectly tailored,” and that the “First Amendment does not put a State to [an] all-or-nothing choice.” For the Williams-Yulee majority, it was sufficient that Florida has targeted the “conduct most likely to undermine public confidence[,]” and that personal solicitations are “categorically different” from solicitations by campaign committees. The Court did not go to great lengths to explain this “categorical” difference, other than to say that while committee and personal solicitations may be “similar . . . in substance, a State may conclude that they present markedly different appearances to the public.”

Importantly, though, the Court did not cite to, or seem to insist upon, any proof by the State that these two types of solicitations were viewed differently by the public. Indeed, when the Court said that a State “may conclude,” it was using language most often associated with deferential review—where benefits-of-the-doubt about the real-world state of affairs are given to the government—not the language of truly strict scrutiny, in which the government must establish not just that its views are plausible, but that its views are grounded in actual fact.

  1. Stare Decisis Is Often Not Very Powerful at the Court

The seemingly generous implementation of strict scrutiny brings up another important facet of Williams-Yulee—its tension with the most relevant Supreme Court case in the realm of judicial election regulation. There is, as one of the Williams-Yulee opinions put it, “only [one] prior case concerning speech restrictions on a candidate for judicial office”—the 2002 case of Republican Party of Minnesota v. White. And in that case the Court (in striking down Minnesota’s judicial election regulation) applied a stricter version of strict scrutiny.

In White five Justices used the First Amendment to strike down a Minnesota law that prohibited candidates for judicial office from speaking out on controversial issues of the day. The law at issue prohibited a candidate for elected judicial office from “announc[ing] his or her views on disputed legal or political issues.” The prohibition went beyond candidate “promises” and forbade, for example, a candidate from criticizing a past court decision and indicating a willingness to consider a different result in similar cases down the road.

Minnesota argued that it needed to regulate candidate speech to ensure that the public believes that judges are sufficiently open-minded about important matters that might come before them, an interest very similar to Florida’s goal of “preserving public confidence in judicial integrity.” But Justice Scalia’s opinion for the majority in White rejected this justification for Minnesota’s law because the scheme was woefully underinclusive, insofar as judicial candidates were not prohibited from voicing their views prior to the time they became declared candidates. The Court rejected the argument, made by dissenting Justices, that “statements made in an election campaign pose a special threat to open-mindedness because the candidate, when elected judge, will have a particular reluctance to contradict them.” The Court said that the idea that judges feel particularly constrained by statements they make qua candidates is “not self-evidently true[,]” and thus cannot carry the day given the “burden [on the government] imposed by our strict scrutiny test to establish th[e] proposition that campaign statements are uniquely destructive of open-mindedness [or the appearance of open-mindedness].”

The tension between White and Williams-Yulee is clear. In the former, the State lost because it did not prove that campaign statements were “uniquely” destructive of the appearance of open-mindedness, but in the latter the State prevailed because it was allowed to “conclude” (without any proof) that personal solicitations “present markedly different” appearances to the public as compared to committee solicitations. Why Minnesota had to prove “unique” destruction of confidence whereas Florida could simply reasonably surmise “markedly different” problems of public perception is left unexplained.

Let me be clear here that I think the overall approach of Williams-Yulee is largely correct and that the analysis of the White majority was largely misguided. As I have written in law review articles and elsewhere, while the First Amendment protects one’s right to speak about the bench, there is no right to to sit on it, and the Tenth Amendment gives states broad powers to regulate the process by which people become judges. The key point is not merely that judges are not supposed to be politicians; it is that throughout American history, we have often selected judges (but not legislators or chief executive officers) without the use of contested elections. And in these non-election processes, what would-be judges have said and done is held against them by government decisionmakers. Just as the president and the Senate certainly, and permissibly, may refuse to make someone a federal judge because of what that person has said, even though such refusals are undeniably “content-based” and indeed “viewpoint-based,” and thus might, in other contexts, run afoul of basic First Amendment principles, a state should be generally available to deny judicial office to candidates who speak in ways that contradict certain judicial decorum norms set by the state. (There is the separate question, implicated in both White and Williams-Yulee, of whether the sanction for violating campaign rules can extend beyond mere disqualification for judicial office, which is a topic I save for another day.)

But my point here is not that Williams-Yulee’s result is wrong—only that its application of strict scrutiny is not very authentic and that its leniency contradicts the approach in White.

  1. Chief Justice Roberts Is no Clone of Chief Justice Rehnquist

How do we explain the tension between White and Williams-Yulee? The answer seems to rest largely on changes to the Court’s personnel. White was a 5-4 case, with the majority consisting of Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas. The dissenters were Justices Stevens, Souter, Ginsburg, and Breyer.

In Williams-Yulee, the remaining White dissenters (Ginsburg and Breyer) are (predictably) in the majority, and the remaining members of the White majority (Justices Scalia, Kennedy, and Thomas) are (predictably) in the dissent. Between White and Williams-Yulee, Justice Alito replaced Justice O’Connor, and voted the same way as we would have expected her to vote, and Justices Kagan and Sotomayor replaced Justices Stevens and Souter, and voted the same way as we would have expected them to vote. So far, so good—an even swap.

But Chief Justice Roberts, who replaced Chief Justice Rehnquist, did not follow in the footsteps of his predecessor here. So what was a 5-4 majority in favor of the First Amendment claimant in White became in Williams-Yulee a 5-4 majority in favor of the State. Chief Justice Roberts apparently has a different view of judicial elections (and the extent to which First Amendment protections for election-related speech apply to them) than his mentor and former boss. Whether there is a broader divergence between Chief Justice Roberts and his predecessor in First Amendment cases is a question that might be worthy of more attention now that the Roberts Court is finishing its first decade.

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
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The Return of the Paranoid Style in American Politics Thu, 21 May 2015 04:01:56 +0000 Continue reading →]]> Paranoia“The Paranoid Style in American Politics,” first published in Harper’s Magazine in 1964, is an essay by the historian Richard J. Hofstadter, who noted the recurrence in U.S. politics of a pernicious brand of fact-resistant ideology. In justifying the use of a psychological term to describe a political phenomenon, Hofstadter referred in particular to “the sense of heated exaggeration, suspiciousness, and conspiratorial fantasy” that motivates certain political movements in this country, and he made very clear that he was condemning that style.

Although Hofstadter’s immediate focus was on the nascent conservative movement that had coalesced around Republican presidential nominee Barry Goldwater, he was quick to say that the paranoid style was not always limited to right-wing movements. Indeed, at any given time, one can find conspiracy mongers on the left as well; what they had in common with the conspiracy theorists on the right was that they all ascribed evil intent and supernatural powers to their enemies. In Hofstadter’s words, the enemy is seen as “a perfect model of malice, a kind of amoral superman—sinister, ubiquitous, powerful, cruel, sensual, luxury-loving.”

I am hardly the only person who has noticed the current relevance of Hofstadter’s analysis, in this era of anti-Obama zealotry. The Wikipedia page discussing Hofstadter’s thesis, for example, cites to articles from 2011 and 2010, both of which note the timeliness of his diagnosis. There is also a link to a 2007 article—which demonstrates, at least, that the Obama-related aspects of current right-wing paranoia are merely mutations of a pre-existing social illness.

Again, there is nothing inherent to this paranoid style that limits its allure to those on the far right. More than fifty years after Hofstadter’s article was published, however, it is certainly the case that we can see the paranoid style most clearly on the right in this country. Moreover, to the extent that one can identify examples of people with left-leaning views who exhibit similar types of paranoia, the distinct difference is that none of those detached-from-reality leftists hold positions of substantial influence or authority, whereas nearly all of the country’s most important Republicans (those holding public office and otherwise) regularly espouse views that exhibit key elements of the paranoid style.

There are, of course, limits to how far even the most extreme right-wing politicians are willing to go. The recent controversy over “Jade Helm 15,” an otherwise-unremarkable military training exercise, is instructive. Although the Republican governor of Texas ordered his own state guard to “monitor” the U.S. military while it is in his state (which is, of course, still one of the fifty united states that our armed forces protect), and even though the reliably unhinged Rep. Louie Gohmert was willing to make explicit conspiratorial claims, the Republican presidential candidates have been notably circumspect on this non-issue.

As bizarre as that particular conspiracy theory was, and as satisfying as it was to see that the general response was to ignore or mock the theory, that does not mean that the paranoid style is not in full bloom elsewhere in the completely mainstream right in America.

Paranoia About the Internal Revenue Service

In a recent three-part series of Verdict columns (here, here, and here), I described the decades-long effort on the part of the Republican Party to demonize the Internal Revenue Service. Rather than treating the agency as an essential, though inevitably flawed, law enforcement agency (“inevitably,” because all human creations are flawed), Republicans have instead treated the IRS as an alien, unyielding, relentless force for evil. To repeat Hofstadter’s description, which I quoted above, the IRS is now viewed by the right as embodying “a perfect model of malice, a kind of amoral superman—sinister, ubiquitous, powerful, cruel, sensual, luxury-loving.”

The words “sensual” and “luxury-loving” might seem a bit out of place here, but the Republicans have indeed demonized the IRS for supposedly excessive spending on conferences, and it is now a standard move to recount the story of a silly “Star Trek”-themed IRS video as evidence that the agency is a gluttonous drain on the public purse.

As I noted in my second and third Verdict columns in that series, a recent report from the House Ways and Means Committee’s Republican staff traffics in exactly this kind of paranoid nonsense. Importantly, that report treats the IRS as an entity with its own consciousness, intent on making decisions to thwart the will of the people. By describing the IRS not as a collection of human beings, but as a malevolent entity, the report denies the personhood of the people who work at the IRS, and Republicans’ efforts to make them miserable are simply part of the party’s greater strategy.

This is, again, not limited to the fringes of people who believe in Jade Helm-like paranoid delusions. The majority staff of the powerful tax-writing committee is completely on board with this effort to undermine the IRS. Moreover, even the writer of a notably responsible piece of commentary in a right-wing magazine, who correctly argued that the IRS is not really the problem (Congress is), could not stop himself from writing that “[t]he IRS deserves more than its fair share of rebuke for targeting groups with views it didn’t like.”

The IRS, in this view, is not merely an agency; it is an agency with likes and dislikes. And because it purportedly does not like conservatives, Republicans have acted as if the IRS is out to get them. When the IRS’s spokespeople try to say that the agency has no such agenda, the response is perfectly paranoid—in essence, “Well, what would you expect an agency that’s out to get us to say?!”

The Non-Scandal Scandal Again

Two years ago, an IRS employee announced that some employees of the agency had used certain politically loaded words— “tea party,” “patriot,” and a few others—when it was sorting through applications for tax-exempt status from some would-be “social welfare organizations.”. Later, we learned that those staff members had also used search terms like “occupy” that would tend to target left-leaning groups. Because that particular type of tax-exempt status is to be denied to groups that devote the majority of their efforts to political activities, such search terms were hardly irrelevant; but higher-level employees at the IRS nevertheless knew that scrutiny on the basis of ideological affiliation (even if done across the political spectrum) was unacceptable, and they discontinued the practice after learning that it was happening. Even so, because more right-wing groups than left-wing groups were affected by this now-discontinued practice, this was taken by Republicans as proof that the IRS intended to scrutinize right-wing groups all along.

This non-scandal has been a gift to the paranoid right, where people—very much including the most powerful people in Congress—have directly accused the Obama Administration of orchestrating a political hit job on right-wing groups. Two years of inquiries have turned up nothing, but that does not matter to the fantasists, because the failure to uncover evidence of the scandal is taken as incontrovertible proof that the evil left-wing malefactors are especially skilled at hiding their schemes.

Again, this is not limited to the tin-foil-hat-wearing right in this country. In my most recent Verdict column, I noted that a mainstream conservative think tank had published a very good rebuttal to Senator Ted Cruz’s call to abolish the IRS. Even so, consider the construction of this weak defense of the IRS: “In fact, while IRS discrimination under the Obama administration against conservative political nonprofits has only increased the contempt many Americans have for the agency, the IRS does a fairly good job of collecting taxes and has relatively few scandals in its history.”

Note the McCarthy-esque phrasing: “. . . IRS discrimination under the Obama administration . . . .” The author never expressly says that President Obama or his aides ordered the “discrimination,” relying instead on innuendo. It happened under the Obama Administration. The sun has risen in the east every day “under the Obama administration,” too, but there would be no reason to phrase it that way, other than to try to connect the two, which in this case is to insinuate that the conspiracy theorists are actually correct.

Later in that article, the author defends the IRS as no “more incompetent or corrupt than your average federal agency,” and it credited the Ways and Means Committee Republican staff report (to which I referred earlier in this column) with exposing “standard, if still shameful, federal failures.” And these are the responsible people on the right—the ones who are resisting the worst kind of paranoid fantasies.

The Conspiracy Theories Around the Affordable Care Act

As I noted in my recent Verdict series on the Republicans’ demonization of the IRS, one of their major complaints is actually that the IRS did something right: The IRS is being blamed for effectively setting up the mechanisms necessary to collect the tax penalties that might be required under the Affordable Care Act (ACA).

A recent public hearing held before the U.S. Senate Committee on Small Business and Entrepreneurship offered an opportunity for Republicans to complain about the ACA, and in particular to suggest that somehow the Obama Administration was duping people by setting up the mechanisms required under that law.

One invited witness, a representative from a very mainstream libertarian think tank, went “full Hofstadter,” if you will.(Unfortunately, I have not been able to find a transcript for this testimony that is not behind a pay wall. The only link that I could find is hereUpdate: The testimony can be downloaded at no cost here.) Calling the IRS “corrupt,” the witness called for yet more oversight hearings, this time to determine whether the administration had misled the public.

Upon reading the witness’s prepared testimony, however, what one finds is that the IRS’s purported corruption is actually nothing more than the IRS’s decision not to say that the government should lose the King v. Burwell case, and then faulting it for failing to tell people what will happen if the Supreme Court actually does rule against the government in that case.

For example, we are told that, “[e]ven after the Supreme Court granted cert in King v. Burwell in November 2014, two officials (including HHS Secretary Sylvia Burwell) “publicly proclaimed, ‘Nothing has changed.’ Each knew it was not true.” What actually had changed? Well, now that the Court has granted cert, there is a greater chance that the subsidies that the IRS administers under the law might ultimately be disallowed.

So, one asks, what exactly was Secretary Burwell saying, when she said that “nothing has changed.” She obviously did not mean, “It’s not possible that the government will lose this case,” but that “People can be assured that we are proceeding to administer the law, until and unless we are ordered not to do so.”

“Nothing has changed,” then, simply means that the relevant agencies are telling Congress and the public that this newsworthy item is, for the moment, nothing more than a newsworthy item. Those agencies are appropriately proceeding on their existing path, in case the government wins the case, and apparently making some contingency plans if the plaintiffs prevail.

Nonetheless, the witness’s testimony goes on: “Oversight hearings would give [the HHS officials] a chance to explain why they told consumers ‘nothing has changed,’ and whether . . . that was fair to say while testifying before Congress under oath.” Note the “under oath” part. There is not a chance in the world that this testimony would be deemed untruthful in a court of law. Not publicly announcing, “Hey everyone, if the government loses this case, things will of course change,” violates no legal or ethical boundaries.

To capture the depth of paranoia on display in that hearing (and the paranoia within the paranoia), however, it is best simply to quote in full a paragraph near the end of the testimony:

Oversight hearings would reveal that King v. Burwell is actually not about health care at all, but rather an example of political corruption and abuse of power at the IRS that goes beyond what any of us have seen in our lifetimes. Lacking any statutory basis for its actions, the IRS first pledged and ultimately spent taxpayer dollars on a multi-year, multi-billion-dollar contribution to the re-election campaigns of members of Congress who enacted, and a president who signed, a law that voters and Congress otherwise would have scrapped as unworkable. Instead, the law remains on the books.

Again, this is not the insane rambling of the leader of a militia group that meets in a roadside bar, who complains about President Obama being a Muslim Communist atheist dictator. This is testimony from a widely quoted scholar in a right-wing think tank, who was invited to speak before a U.S. Senate committee—not as an example of a delusional crank, but as an expert on the Affordable Care Act.

There will always be people who imagine that there is someone coming to get them. But just as psychiatrists work to treat such delusions in their patients, it is incumbent upon people of reason to marginalize such insane fantasies when they crop up in the public sphere. The evidence continues to belie any suggestion that the IRS, HHS, or anyone in the Obama Administration conspired to do anything illegal. Efforts by officeholders on the right to suggest that their opponents’ disagreements on policy are actually backed up by dark conspiracies seriously undermine the legitimacy of anything that the government might do. As I have suggested in my earlier Verdict columns, however, that effort to delegitimize the government appears to be the whole point.

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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Is the Dormant Commerce Clause a “Judicial Fraud”? Wed, 20 May 2015 04:01:32 +0000 Comptroller of the Treasury of Maryland v. Wynne are inconsistent with their prior methodologies for interpreting the Constitution in other contexts. Continue reading →]]> Constitution GavelMonday’s Supreme Court ruling in Comptroller of the Treasury of Maryland v. Wynne was less notable for the concrete issue it resolved than for the broad rift it exposed between, on the one hand, a clear majority of the Court and, on the other hand, Justices Scalia and Thomas. Reiterating in the strongest possible terms points that each has made in the past, Justices Scalia and Thomas disavowed a principle that has been part of American jurisprudence for nearly two centuries.

The Issue in Wynne

Wynne involved the application of the so-called dormant Commerce Clause (DCC) to a provision of the Maryland personal income tax law. Like most other states, Maryland taxes its residents on the income that they earn both in and out of state. However, unlike most other states, Maryland does not give a full credit for taxes that residents pay to the states in which they earn out-of-state income. As a consequence, a Maryland resident who earns out-of-state income is subject to less favorable tax treatment than one who earns only in-state income. Such favoritism for intrastate commerce, the Supreme Court held in Wynne, violates the DCC—a longstanding doctrine forbidding states from engaging in protectionist legislation.

Justice Alito’s majority opinion in Wynne was joined by Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor. Justice Ginsburg, joined by Justices Scalia and Kagan, dissented on the ground that the Court misapplied prior precedents. The sort of double taxation at issue in Wynne, Justice Ginsburg argued, was only problematic with respect to corporations and when applied to gross receipts, not with respect to natural persons taxed on net income. The majority thought that these distinctions were not material.

Tax scholars can debate whether Justice Alito or Justice Ginsburg had the better argument with respect to the precise question posed by the Maryland tax provision at issue in Wynne. However, that disagreement was relatively minor compared to the differences revealed in the dissents of Justices Scalia and Thomas.

The Legitimacy of the Dormant Commerce Clause

Although Justice Scalia joined Justice Ginsburg’s Wynne dissent on the ground that he thought the majority misapplied the DCC precedents, he also wrote separately to express a more profound disagreement with the majority. In his view, the DCC itself “is a judicial fraud.” He nonetheless reaffirmed his willingness to adhere to a very narrow subset of DCC precedents. Justice Thomas would not even go that far. He reaffirmed that he would not apply the DCC at all.

Why do Justices Scalia and Thomas have so little regard for the DCC? The answer begins with the text of the Constitution. There is no express DCC. The principle is an inference from the grant to Congress in Article I, Section 8 of the power to regulate interstate (and foreign and Indian) commerce. That inference is unwarranted, Justices Scalia and Thomas say. To evaluate the argument against the DCC, one must understand why someone might think that the courts are empowered to enforce it.

The rationale for inferring a DCC has shifted over the years. Originally, the dominant theory held that congressional power to regulate interstate commerce was exclusive. Any particular act either was in interstate commerce—and thus regulable by Congress and not the states—or outside of interstate commerce—and thus regulable by the states and not Congress. That original rationale is no longer tenable, however. Often some line of business has both intrastate and interstate elements, and when it does, modern constitutional case law permits states to regulate unless a federal statute preempts the state regulation.

But the modern rationale for the DCC does not rest on fictive completely separate spheres of federal and state regulatory competence. Rather, the modern view is that the Constitution has embedded within it a structural principle opposing interstate trade wars. As Justice Alito’s opinion correctly notes, the DCC “strikes at one of the chief evils that led to the adoption of the Constitution, namely, state tariffs and other laws that burdened interstate commerce.”

Justice Scalia has two answers to Justice Alito, but neither is very satisfactory. First, Justice Scalia notes that Article I, Section 10 of the Constitution expressly addresses the tariff concern by forbidding states from enacting “Imposts or Duties on Imports or Exports.” That express prohibition is the extent of the limit, Justice Scalia says. In going beyond it, he adds, the DCC supplements rather than construes the Constitution.

In response, Justice Alito asks Justice Scalia a pointed question: If you think the DCC is a fraud, why abandon the doctrine rather than simply shift it from the Commerce Clause to the Imposts or Duties Clause? To be sure, the Imposts or Duties Clause does not contain every detail of the DCC doctrine, but so what? The First Amendment does not expressly apply to art, music, or dancing, much less to telephones and the Internet, but everyone—including Justices Scalia and Thomas—accepts that express protection for “speech” and the “press” has been sensibly applied to reach these other forms of communication.

Justice Scalia’s second key objection is institutional. Even if the Constitution enshrines free trade among the states as a value, he says it should be up to Congress to implement that value.

Yet this objection fails for practical reasons. Congress lacks the capacity to keep track of and override all of the laws that discriminate against or unduly burden interstate commerce that may be enacted by any of the fifty states and thousands of local governments. The judicially enforceable DCC thus operates as a kind of default principle. The courts presume that Congress would preempt such state and local laws if it had the capacity to do so. The fact that Congress has the power to override a judicial ruling finding a DCC violation acts as a failsafe in case the presumption fails. And the fact that Congress only very rarely exercises that power shows that in applying the presumption embodied in the DCC, the courts have done a pretty good job of approximating what Congress would do to combat state-versus-state protectionism if it had the capacity.

An Inconsistent Attack on Structural Inference

Moreover, even if Justices Scalia and Thomas were right that there is no DCC in the sense of a specific provision of the Constitution that grounds the doctrines that have developed to combat interstate protectionism, it would not follow that the doctrine is illegitimate. Both Justices Scalia and Thomas have joined, or in some instances led the Court in inferring judicially enforceable constitutional norms from the Constitution’s basic structure and purposes.

Two examples illustrate the sorts of structural inference that these and other Justices have drawn. First, there is no express provision of the Constitution forbidding Congress from “commandeering” states into enforcing federal law. Yet the Court found one in Printz v. United States. Justice Scalia, writing for a majority of the Court (including Justice Thomas) treated the absence of an express text as no obstacle to a constitutional rule. “Because there is no constitutional text speaking to this precise question, the answer to the” question whether the Constitution forbids such commandeering, Justice Scalia wrote, “must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court.” The answer, he said, was yes.

Likewise, the Constitution contains no express provision generally establishing a principle of state sovereign immunity to private lawsuits. On the contrary, by forbidding such suits “against one of the United States by Citizens of another State,” the Eleventh Amendment could be read to permit suits against a state by its own citizens. Yet a line of cases in which Justices Scalia and Thomas have enthusiastically joined finds a broader principle of state sovereign immunity in the Constitution’s structure.

To be clear, by accepting some structural principles as part of the Constitution, Justices Scalia and Thomas did not commit themselves to accept all such principles. They may have good reason to conclude that the anti-commandeering principle and the state sovereign immunity principle are implicit in the Constitution’s structure but that the anti-trade-war principle of the DCC doctrine is not.

However, if that is their point, then they ought to make it more modestly. They ought to provide reasons to conclude that, all things considered, the DCC is such an unsatisfactory doctrine that it deserves to be uprooted. The claim that it is “a judicial fraud” is grossly overstated and inconsistent with a methodology that Justices Scalia and Thomas have accepted in other contexts.

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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The Appearance and Reality of Cruelty in Glossip v. Gross Tue, 19 May 2015 04:01:00 +0000 Glossip v. Gross. Continue reading →]]> SyringeThe U.S. Supreme Court recently heard argument in Glossip v. Gross, in which one of the primary issues presented is whether Oklahoma’s lethal-injection three-drug protocol is constitutionally permissible under the Eighth Amendment. The Oklahoma protocol includes a drug called midazolam, which is administered prior to the other two drugs and meant to prevent the prisoner from feeling the effects of the latter drugs. The second and third drugs in the protocol paralyze the body, thereby stopping the inmate from breathing (causing suffocation), and stop the heart, respectively, actions that would cause the prisoner horrible pain and suffering in the absence of a first drug that effectively renders him unconscious and insensitive to pain during the latter drugs’ administration.

Among the fascinating topics of the exchanges that took place between the attorneys and the Justices during oral argument was one that came from Justice Kagan and later from Justice Alito, regarding the hypothetical case of the execution of a prisoner by burning him alive after giving him a drug comparable to midazolam. In this column, I will examine some implications of these exchanges.

An Overview of the Case

Before launching into a discussion of the particular exchanges I mentioned above, let us consider the case presented before the Court more generally. Oklahoma is currently utilizing a lethal-injection three-drug protocol as its method of executing people sentenced to death. The U.S. Supreme Court has had occasion previously, in Baze v. Rees, to consider a somewhat different (from Oklahoma’s) three-drug protocol, challenged on a different ground (based on the risk of improper administration), and held that it complied with the Eighth Amendment, notwithstanding the danger that the prisoner would suffer great pain if the drugs were not administered correctly (a contingency that has occurred a number of times). In Baze, the first drug in the protocol—the one that was meant to protect the prisoner from experiencing the effects of the other two—was sodium thiopental.

One potential reason for Oklahoma’s use of a different first drug (the one intended to protect against the suffering caused by the latter two) is that, apparently due in part to pressure by death penalty opponents, drug companies have not been supplying the more reliably protective drug, sodium thiopental, for use in executions. In Justice Alito’s words, there has been “a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain[.]” Midazolam, in other words, might not have been Oklahoma’s first choice of protective drug, but the state did not have a lot of alternatives, given increasing hostility to the death penalty by abolitionist activists and a resulting shortage of the drug of choice.

The petitioners in Glossip claim that the evidence shows that midazolam neither kills pain nor reliably maintains a patient in an unconscious state during the process of execution, thus exposing the condemned prisoner to the excruciating suffering resulting from the two drugs administered after the midazolam, which, just to reiterate, stop the prisoner from breathing (through paralysis) and then stop the prisoner’s heart. Justice Kagan observed a number of times that if conscious, an inmate experiencing the two lethal drugs suffers pain comparable to that of a prisoner being burned alive.

One of the questions presented in the case is whether the prisoner is required to come up with an alternative to the drug about which he is complaining in order to mount a successful Eighth Amendment challenge to its use. Some implications of this question emerged more fully during oral argument, which Professor Michael Dorf ably analyzed here. Justice Alito implied that so long as the death penalty is legal, death penalty opponents should not be given the power to preclude executions by making the most effectively protective drugs unavailable and then turning around and complaining, as the petitioners have here, that the drugs that are available are insufficiently protective. If the Justice’s implication prevails in the case, then the impact may be to subject condemned prisoners to very painful executions unless they can supply a better (and available) alternative (a highly unlikely capacity for a death row inmate with limited control over the availability of pharmaceuticals).

Exchanges About Burning a Prisoner Alive

At one point during the oral argument, Justice Kagan presented the following scenario to the respondent’s attorney: “people say that this potassium chloride, it’s like being burned alive. We’ve actually talked about being burned at the stake, and—and everybody agrees that that’s cruel and unusual punishment. So suppose that we said, we’re going to burn you at the stake, but before we do, we’re going to use an anesthetic of completely unknown properties and unknown effects. Maybe you won’t feel it, maybe you will. We just can’t tell. And—and you think that that would be okay.” The attorney protested that this scenario would certainly violate the Eighth Amendment, though he attempted to distinguish midazolam from the hypothetical “anesthetic of completely unknown properties and unknown effects.”

In a later exchange picking up on this first one, Justice Alito addressed the petitioners’ attorney with the following question: “[I]f an anesthesiologist rendered a person completely unconscious, and then the person was burned alive, would that be cruel and unusual punishment?”

The attorney responded that the problem with midazolam is not with rendering someone unconscious but with maintaining a deep level of unconsciousness.

Justice Alito then modified his question accordingly, to get to his actual point: “Yes. So an anesthesiologist is called in to make sure that this person feels no pain whatsoever while being burned alive, and then the person is burned alive, would that not be a violation of the Eighth Amendment anyway?”

The petitioners’ attorney began to respond, and Justice Kagan interrupted, to help her, by saying, “Because potassium chloride . . . is kind of like that, isn’t it? It’s being burned alive from the inside. That’s what it is.”

And the attorney responded in agreement, “That’s exactly what it is, Justice Kagan . . . .”

At this point Justice Alito reiterated his own question: “But . . . you think there are circumstances in which burning somebody at the stake would be consistent with the Eighth Amendment?”

After some further back and forth, the petitioners’ attorney replied as follows: “Well, what I’m saying is that . . . the founders say burning at the stake is unconstitutional. It creates an Eighth Amendment violation. It’s cruel and unusual. But in your hypothetical, if there was a way to ensure that that was done in a humane way, there could perhaps be . . . .”

Justice Alito then responded by saying, “That’s an incredible answer. You think that there are circumstances in which burning alive would not be a violation of the Eighth Amendment? Burning somebody alive would not be a violation of the Eighth Amendment?”

In his exchange with the petitioners’ attorney, Justice Alito plainly indicated his own view that regardless of how effectively one could prevent the execution process from causing pain, burning a prisoner alive would unquestionably violate the Eighth Amendment prohibition against cruel and unusual punishments.

The Potential Oddity of Justice Alito’s Position

Consider a juxtaposition of Justice Alito’s views expressed during the course of the oral argument. First, he apparently believes that, as an Eighth Amendment matter, midazolam is perfectly acceptable in the three-drug execution protocol so long as midazolam is the best that Oklahoma can do, given the “guerilla” tactics of death penalty opponents pressuring drug companies not to supply the states with the more effectively protective drug, sodium thiopental, for use in executions. This in spite of the fact that it appears that midazolam may not reliably keep the inmate unconscious during the execution process, thus resulting in pain (from the other two drugs) that may be comparable to what an inmate would experience if he were burned alive.

Second, Justice Alito takes the view that even if one could guarantee a pain-free experience for the condemned, the Eighth Amendment would still bar his execution by burning at the stake, and the Justice is, furthermore, is shocked to learn that the petitioners’ lawyer would even entertain the possibility that such a punishment might be okay.

Thus, for Justice Alito, while it is apparently constitutionally acceptable to execute a person by lethal injection in a manner that may result in the actual feeling of being burned alive, it is beyond dispute unconstitutional to execute a person by burning him alive in a manner that assures a complete absence of sensation and pain. The upshot of these two positions is that the Eighth Amendment may be concerned with something that is entirely divorced from the actual experience of the condemned during an execution. But what is that something?

Appearances and Audience Sensation

If one were concerned exclusively with the pain of the prisoner, then answering the questions posed above would be a no-brainer: you cannot execute a person with painful drugs preceded by an unreliable sedative that may not prevent consciousness during an otherwise excruciating dying process, but you can execute a person by burning him alive if the burning is preceded by a 100% effective drug that prevents all consciousness and pain during the dying process. Yet Justice Alito believes that the opposite is true. What is left of the Eighth Amendment, then, if the internal experience of the prisoner is irrelevant?

The answer lies in the experience of the audience. When a prisoner is executed by lethal injection, the audience will most likely witness what appears to be a very calm, orderly, and painless process. Even if, on some occasions (or perhaps, if midazolam is as unreliable as argued, on many occasions), the actual experience of the prisoner is horribly painful, the people watching, and thus the citizens of the United States, will feel that they have been part of a civilized and humane process that affords the condemned the opportunity to die without undue suffering.

By contrast, even if a prisoner is given highly effective medication that induces unconsciousness and an inability to feel any pain, those who witness him being burned alive will likely be traumatized by the experience. Indeed, many people avoid going to movies in which torture is depicted, precisely to avoid such trauma, even though the audience knows at the time that the “victims” in the movie are actually actors who are not in fact being tortured at all. When people witness what looks like an extremely painful, torturous experience, they feel empathy and (assuming they are not sociopaths) suffer to some degree what they imagine is happening to the other person.

It could thus be harrowing for an audience, including witnesses as well as prison officials, to watch a prisoner being burned alive, and the trauma could well extend to the people living in this country who know that such an execution is taking place. Simply put, a burning at the stake looks and “feels” barbaric to the audience, regardless of what drugs have been administered to the prisoner beforehand to prevent him from experiencing any pain or sensation. And that is likely why Justice Alito was so shocked to hear the view that burning at the stake could in some cases be consistent with the Eighth Amendment.

To some degree, it is laudable that we take into account the sensibilities of the audience in determining whether a punishment constitutes an Eighth Amendment violation. Particularly when the suffering of a prisoner will be evident to the viewer, as would historically have been the case, being attentive to the (increasingly civilized) audience’s reactions, and to its outrage and revulsion at what it views as cruelty, will help give content to the “evolving standards of decency” that have animated and developed the Eighth Amendment through the years.

This formula goes wrong, however, when the audience is no longer in a position to be able to detect whether and to what degree a prisoner is suffering during the course of an execution. Though the witnesses are “right there” and thus might feel like they truly know what is going on, the drugs used in lethal injection protocols make this perception of knowledge illusory, as Professor Deborah Denno has discussed in her extensive work on the death penalty and lethal injection. Drugs that paralyze a prisoner and stop his heart, though horribly painful if the prisoner is conscious, simultaneously make his pain invisible to viewers. The very drugs that torture him lock him into that torture so that he may, in many cases, be completely unable, visually or audibly, to convey his suffering to the witnesses around him.

As a result, we can wind up with the peculiar state of affairs in which a Justice on the Supreme Court (who is likely not alone in this sentiment) is prepared to affirm the validity of an execution method that may cause a prisoner to feel like he is being burned alive, so long as the execution looks humane from the perspective of the audience, while the same Justice simultaneously recoils at the prospect of an execution method that in fact causes no suffering at all but that looks, from the perspective of the audience, like torture.

This state of affairs strikes me as perverse, insofar as it rests squarely on the primacy of appearances over reality and on the prioritizing of the witnesses’ experience over the prisoner’s experience. The fact that lethal drugs have the power to mask what is going on inside a prisoner ought to give rise to great caution and care on the part of those interpreting the Eighth Amendment rather than giving rise to a complacency and a willingness to choose what is truly barbaric (but appears humane) over what is in fact humane (but appears barbaric). Unfortunately, that complacency and willingness appear to have become a part of Eighth Amendment analysis at this time.

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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Just What Do We Mean by Reform? Part Two in a Series on Race and Policing Mon, 18 May 2015 04:01:19 +0000 Continue reading →]]> A black man with hands outside the bars of a prison cellMy last column was the first installment in a series on policing and race. I took a look at the “zero tolerance” policy implemented by the Baltimore Police Department from 1999-2007, which led Baltimore’s finest to stop and arrest hundreds of thousands of residents for the most trivial violations. As I explained, “zero tolerance” systematically misallocates police resources. Officers descend on the many citizens who commit trivial infractions, but largely ignore the few who commit the most serious violations. The result is simultaneously too much and too little policing.

But this misallocation is not remotely the most serious problem with “zero tolerance.” Far more importantly, it poisons the relationship between the community and the police. The person stopped knows full well that the treatment he is routinely forced to endure would not happen if he lived in white neighborhoods, where “zero tolerance” policies are not imposed because of the lower incidence of violent crime. Yet he also knows his mistreatment will do virtually nothing to reduce that crime. He is thus subjected to repeated humiliations for no good reason, which leads predictably to mistrust and animosity.

Conceivably, policies like “zero tolerance” might be less toxic in a community with a long history of mutually supportive relationships between the police and the people they serve. Such a history can produce a collective memory of good will as well as a large and informal network of positive relationships, all of which can help the police and community weather the storm of a misguided policy. This is just another way of saying that healthy relationships are more resilient than unhealthy ones. That, however, is not Baltimore’s history. “Zero tolerance” was imposed on a community that was already deeply mistrustful of its police.

Yet notwithstanding Baltimore’s recent and extended experience with law enforcement, I ended my last column on a hopeful note. Don’t give up on Baltimore, I implored. Reformers are at the helm. I should add here the personal note I should’ve included in my last column: I was born and raised in Maryland and think Baltimore is—or could be—one of the finest cities in the country.

* * *

So let’s talk about reform. What does it mean? I hadn’t thought I would write about this, but after my last column appeared, several people wrote with some skepticism. Many people, myself included, link crime to an array of deeply embedded structural conditions that produce unequal economic opportunity, political power, and social capital. All of these conditions have deep historic roots in this country, and in combination, they create environments where crime can flourish. From that starting point, many argue with great force that true criminal justice reform is impossible unless it is accompanied by a meaningful change in the structural realities of the inner city.

President Obama expressed this precise view when he spoke about the unrest in Baltimore following the death of Freddie Gray:

This is not new. This has been going on for decades. And without making any excuses for criminal activities that take place in these communities, we also know if you have impoverished communities that have been stripped away of opportunity, where children are born into abject poverty, [where] it’s more likely that those kids end up in jail or dead than . . . go to college, and . . . there are no fathers who can provide guidance to young men . . . , and manufacturing’s been stripped away, and drugs have flooded the community . . . if we think that we’re just going to send the police to do the dirty work of containing the problems that arise there without, as a nation … saying what can we do to change those communities to help lift up those communities and give those kids opportunity, then we’re not going to solve this problem . . . .

Is reform of this sort possible? To get some sense for the magnitude of the problem, consider the groundbreaking study recently published by two Harvard economists, who examined the relationship between geography and economic mobility for children raised in the 100 largest counties in the country. The authors found that poor children were most likely to escape poverty in counties with five characteristics: “less segregation by income and race, lower levels of income inequality, better schools, lower rates of violent crime, and a larger share of two-parent households.”

Given this finding, we should not be surprised that the authors also found that counties with a large black population “tend to have lower rates of upward mobility.” And where do children fare the worst? Summarizing the results, the Washington Post observed that, “among the nation’s 100 largest counties, the one where children face the worst odds of escaping poverty is the city of Baltimore.”

Does criminal justice reform tackle these systemic, structural inequities in American society? It does not. Apart from a small minority, criminal justice reformers in the United States today are focused quite narrowly on different aspects of the criminal justice system and are emphatically not part of a larger campaign for social justice of the sort envisioned by President Obama. Maybe they should expand their horizons; maybe, for instance, they should build and sustain links to the gathering campaign to redress income inequality. I happen to believe they should, but that’s a different question that I will address in another column. The fact is, they haven’t.

So let me be as clear as I can: If criminal justice reform requires that we eliminate the conditions that produce results like those uncovered by the Harvard economists—if it means creating genuine economic opportunity in the inner cities, improving the schools and public services, repairing the infrastructure, overcoming class and racial discrimination, and ending hyper-segregation—then criminal justice reform is dead in the water.

In light of this, how can anyone be hopeful about criminal justice reform? Can we really expect positive change as long as growing up in Baltimore and cities like it effectively consigns young people—especially boys—to a life of poverty? Under these circumstances, is a certain amount of anger, despair, and frustration that periodically erupts in violence—not to mention crime—really that surprising?

These criticisms are entirely fair. Yet I am nonetheless hopeful, for two reasons. First, in working on my book on criminal justice reform, I have spoken with advocates and activists all over the country who dedicate themselves to improving some aspect of the system. And if I have learned anything from the many interviews I have conducted, it is that participants have an acute sense for what is politically possible. Most of them would rather see transformative change in American society, but they recognize that advocating for such change is a non-starter that will scare off many of the politicians and conservatives that have only recently climbed aboard the reform train. As a result, they seek the reforms that are attainable.

And to be fair, those reforms are not insignificant, particularly in the area of police procedure. The experience of the past 20 years has taught us that reformers can adopt a range of practices that will dramatically reduce violent crime while improving relations between the police and communities of color. (I had originally planned to write about these practices, but that will have to wait for the next column.) To be sure, these practices do not change the structural realities of American life. They do not end hyper-segregation, fix the public schools, or bring good jobs back to the inner city. But it is nonetheless a good thing when streets are safer and communities are more trustful of the police. It is a good thing when misguided policies like “zero tolerance” are replaced with practices that support rather than demonize the community.

Second, and more importantly, we can reorient and reconceive the criminal justice system in a way that will work even more dramatic reforms. In the space remaining in this column, I can only hint at this vision, but I will return to it later. The biggest mistake we have made in the criminal justice system is to construct it as a contest between the state and the defendant. Since the state makes the rules, whenever it feels threatened, it will tilt the playing field in its favor. In a nutshell, that describes the course of the past 45 years, when we have systematically made it easier for the state to arrest, prosecute, convict, and punish those believed to have broken the law. And because this system is ubiquitous, those who protest can generally find no other language for their objection than a demand that the field be tilted in the other direction.

But what if we think of the criminal justice system in an entirely different way? The overwhelming majority of crime is local. Someone does something against the person or property of another, who most likely lives or works nearby. Often, the victim and offender know each other and come from the same community. So, if we focus on how crime actually works, the most relevant actors are: the victim; the defendant; and the community from which they both hale.

Recognizing this, the goal of the criminal justice system should be to hold the offender accountable, repair the community, and make the victim whole. The state’s principal role in this process should be to advance these goals. The state’s interest, in other words, is not primary; it is secondary to the interests of the people most prominently touched by crime. The state, therefore, is a servant to the people, and not a master with an independent interest that demands vindication. The machinery of the criminal justice system does not have a life of its own. It exists only to serve the interconnected interests of the victim, the defendant, and the community.

I will elaborate on this vision in future columns, but if “reform” means reorienting the criminal justice system in this way, and particularly reconceiving the role of the state, the consequences can be profound. No longer can the state devise its enforcement and prosecution strategies without regard to the interests of the community. No longer can the state impose sentences that, in practice, work a second injury on the victim, or punish the offender beyond what is needed to hold him accountable. No longer can the state impose burdens on the offender that make it impossible for him to become a productive member of the community upon his release from prison. All of these are illegitimate if the state is the servant of the people.

Reform undoubtedly means different things to different people. But even within the limits of American life, meaningful reform of the criminal justice system is possible, if we have the will to seize the moment.

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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Deflategate: The Problem Is the NFL’s Rules Fri, 15 May 2015 04:01:18 +0000 Continue reading →]]> Deflated American FootballIt has been so long since Los Angles has been a part of the National Football League (NFL) that I have become totally agnostic about the New England Patriots and their behavior. Frankly, football has become such a brutally dangerous and concussion-causing undertaking for those on the field that I expect future generations will end the game as it is played today. Nonetheless, I have been closely following the NFL’s investigation of the use of under-inflated footballs by the Patriots in the AFC championship game against the Indianapolis Colts—“deflategate.” Actually, I feel I have the detachment a lab scientist watching mice, for my interest is in the process more than the outcome.

On May 6, 2015, attorney Ted Wells, a litigation partner at Paul, Weiss, Rifkind, Wharton & Garrison who was hired by the NFL to undertake an independent investigation, issued his report: “INVESTIGATIVE REPORT CONCERNING FOOTBALLS USED DURING THE AFC CHAMPIONSHIP GAME ON JANUARY 18, 2015“ (the Wells Report). It is a powerful document making the case that the Patriots and their quarterback Tom Brady violated the NFL’s rules.

Critics of the report (and the sanctions that followed) wanted a “smoking gun,” such as a video of the footballs actually being deflated before the game, or a text or email of Patriots quarterback Tom Brady instructing those handling the footballs to deflate them below the NFL standard. Because none was found, critics belittled key findings like: “We also note that there is less direct evidence linking Brady to tampering activities than either [James] McNally or [John] Jastremski,” who were clearly based on text messages in a deflating scheme. The report continues, “We nevertheless believe, based on the totality of the evidence, that it is more probable than not that Brady was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls.” (Emphasis added, Wells Report at 16-17.) “More probable than not,” the critics shout, “that does not prove anything.” The critics want proof beyond a reasonable doubt. They simply ignore the fact that “beyond a reasonable doubt” is not the standard of proof everyone within the NFL agreed upon, not to mention that this is not a criminal proceeding.

The Wells Report appeared to prove the improper deflating of footballs with solid evidence. When the NFL doled out its sanctions, I again looked at the Wells Report, and thought them justified. The NFL issued a press release with copies of portions of the letters sent by NFL Executive Vice President of Football Operations Tory Vincent to the Patriots and Brady. (The full letters do not appear to have been made public.) The Patriots were penalized for their “violation of the playing rules” (meaning deflating of the game balls on January 18, 2015) and “the failure to cooperate in the subsequent investigation” (to produce James McNally for a second interview) and accordingly fined $1 million, and they were also forced to forfeit a first-round selection in the 2016 NFL draft and a fourth-round selection in the 2017 NFL draft.

Based on the Wells Report, I thought this case was closed. But the Patriots have now made clear there is another side to this story.

On May 14, 2015, David Goldberg, a senior partner of Morgan Lewis, the law firm representing the Patriots, published a response to the Wells Report, seeking “to provide additional context for balance and consideration.” The document—“The Wells Report in Context” (The Goldberg Report)—is not without hyperbole, yet in the end it shreds the central contentions and evidence upon which the NFL sanctioned the Patriots and Brady. The Wells Report without appendices runs about 40,000 words. The Goldberg Report runs about 20,000 words, and has a few hyperlinks in the online version.

The Goldberg Report annotates the executive summary of the Wells Report, drawing on other sections of the Wells Report as well as information gathered but not reported by the NFL’s investigators. It begins with an unpersuasive claim that the NFL itself should have warned the Patriots of the concern by the Colts that the Patriots were using under-inflated footballs. It proceeds to show the science that was passed over by the Wells Report was a mistake, noting for example that the Colts footballs also lost pressure during the game and were also under the NFL requirement, and this response ends by showing that the evidence ignored by the Wells Report actually explains the ostensibly incriminating text messages.

The Goldberg Report is not persuasive in claiming the NFL and Ted Wells did not conduct a fair investigation. Or that Ted Wells was somehow in cahoots with the NFL because his law firm does other work for the NFL—work the Goldberg Report argues should have been disclosed. In fact, David Goldberg is similarly in cahoots with the Patriots. Yet the Goldberg Report is very persuasive when addressing the alternative meaning of the seemingly incriminating text messages. In fact, in re-casting the evidence it raises questions that should have been addressed by the Wells Report.

A few examples. While the Wells Report makes James McNally’s removal of the game balls to the playing field appear highly suspicious, the Goldberg Report’s focuses on the evidence that makes it appear anything but suspicious. The Wells Report appears to provide a science-tested explanation of how McNally could have deflated the games balls during his one minute and forty second stop in the bathroom, while the Goldberg Report notes this seemingly authoritative test actually raises more questions, such as:

There is no indication in the [Wells Report’s special] report of the size, agility or age of those who raced to complete the task as quickly as possible — and hence no real assessment of whether a person of Mr. McNally’s age and physical characteristics [an older and overweight man] could have accomplished this task, which would involve taking the footballs out of the bag, putting them on the floor (which happens to be sloped, increasing the level of difficulty if footballs were laid out on the floor), carefully controlling them to be sure not to deflate any football twice, returning them to the bag, unlocking the door and leaving. In all events, there was good reason for Mr. McNally to stop in the bathroom, since his sideline duties require he be on the field the entire first half.

Although I chuckled when I heard on the news that McNally’s incriminating description of himself as the “deflator” referred to his effort to lose weight, when I read the Goldberg Report’s full explanation I found it very credible. Here is part of that explanation, without the text messages that fully support the contention of the Patriots:

Mr. Jastremski would sometimes work out and bulk up — he is a slender guy and his goal was to get to 200 pounds. Mr. McNally is a big fellow and had the opposite goal: to lose weight. “Deflate” was a term they used to refer to losing weight. One can specifically see this use of the term in a Nov. 30, 2014 text from Mr. McNally to Mr. Jastremski: “deflate and give somebody that jacket.” This banter, and Mr. McNally’s goal of losing weight, meant Mr. McNally was the “deflator.” There was nothing complicated or sinister about it.

The Goldberg Report is also persuasive in explaining the alleged failure of the Patriots to cooperate, principally in producing James McNally for a second interview, actions which when explained appear justified. In fact, McNally was interviewed four times, three times by NFL officials and once by Wells (with three other attorneys), and he fully cooperated. After the fact, it is clear that the Wells investigative team missed the McNally text message where he called himself the “deflator,” so they wanted to interview him again, notwithstanding the fact Wells had agreed at the outset that individuals would only be interviewed once, barring “unanticipated circumstances.” When the Wells investigators asked for a second interview, they were asked the nature of the “unanticipated circumstances,” but as the Goldberg Report states, they were not told, adding (since this was an express basis of the sanction), “It now appears that the Patriots are being severely punished because the Wells investigative team apparently overlooked materials they had in their possession long before their interview with Mr. McNally — scarcely an ‘unanticipated circumstance’ calling for yet another interview — and refused to disclose their reason for an additional interview. There was no refusal to cooperate by the Patriots.”

This response is the adversary process at work, which is one of the best means to uncover the truth, particularly when testimony and documents can be compelled under oath, which is not the case here. As the debate over “deflategate” continues, what truly should be at issue are the NFL rules, which do little to provide a satisfactory process for investigations and inquiries of this nature. Football fans are entitled to no less, and hotly contested issues that can ruin reputations need resolution. The NFL’s current rules and procedures invite the free-for-all they have produced in “deflategate.” But stay tuned; this may go into overtime.

John W. Dean, a Justia columnist, is a former counsel to the president.
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A Mid-Year Report on Child Sex Abuse Victims’ Access to Justice in 2015 Thu, 14 May 2015 04:01:31 +0000 Continue reading →]]> Law FirmThere is good news and bad news for victims of child sex abuse who seek to enter the justice system in 2015. As a general matter across the United States, we are on the right track and headed in the right direction. But there is a great deal of work left to do.

The most remarkable leap forward: Georgia. Before May 5, 2015, the date when Georgia Gov. Nathan Deal signed into law the Hidden Predator Act (HPA), Georgia was among the five worst states in the country for child sex abuse victims’ access to justice. The statutes of limitations (“SOLs”) in the civil context shut down all claims by age 23 and on the criminal side, only opened the door for crimes after July 1, 2012. That meant civil suits and prosecutions for child sex abuse have been rare occurrences in Georgia.

That changes on July 1, 2015, when the HPA goes into effect. The HPA moves Georgia into one of the better states in the country. It creates a two-year window (during which defendants do not have the benefit of the statute of limitation as a defense) for the victim to sue the perpetrator. It also institutes a new discovery rule, which permits victims to sue perpetrators and/or institutions for abuse and cover ups. Victims will have two years from the date they understand that their current problems were caused by the childhood sexual abuse to go to court. While there are better SOL laws in the country, and most specifically, Delaware and Minnesota, which have eliminated civil and criminal SOLs for all defendants, and given victims a window, it still catapults Georgia ahead of the other four deplorable states on this issue, New York, Michigan, Alabama, and Mississippi.

A more predictable result: Utah. Utah also made some progress, though it is all against the perpetrator. As of March 2015, for all abuse into the future, civil claims will not be subject to an SOL against the perpetrator. The bill started out as one against perpetrator and institution. Yet, as expected, the Church of Jesus Christ of Latter-day Saints ensured that the same civil extension could not be applied to institutions that employ pedophiles or that cover up for them. The same age 22 limit that was in place before remains, making Utah one of the most restrictive regimes for bringing institutions that harbor abusers to justice.

The stalling continues: New York and Pennsylvania. As I mention above, New York is one of the four worst states in the country for child sex abuse victims. None of the paths that other states have traveled to increase justice for victims has worked in New York. Neither the courts nor the legislature has lifted a finger to help these victims obtain meaningful civil justice. Reform bills have been introduced year in and year out, with the Assembly passing the Child Victims Act numerous times, but an SOL revival bill has never gotten a fair hearing in the Senate, let alone a vote on the floor. Gov. Cuomo has shown less leadership on this issue than seems humanly possible. Who is pulling the strings in Albany? On this issue, it would be the Catholic bishops and primarily Cardinal Timothy Dolan of New York City. Given his tattered reputation after he tried to hide $55 million from the victims in his previous location, Milwaukee, one wonders why members defer to him on this issue. Suffice it to say that New York is a national disgrace on these issues.

Pennsylvania did extend its civil SOL in recent years to age 30, but it did not revive expired claims, which left the vast majority of victims locked out of court. Again, the reason Pennsylvania is stuck is that legislators slavishly defer to the Catholic bishops and ignore the cries of the victims.

Michigan, Alabama, and Mississippi have made either futile or doomed efforts to increase access, which means there is every reason to expect that the four worst in the country will stay right there for the immediate future. What is lacking is leadership in the interest of the children in each state. This can change.

As we saw in Georgia this spring, with Rep. Jason Spencer, Sen. Renee Unterman, and Gov. Nathan Deal leading the way, there is no need to stay at the bottom of the heap when it comes to child protection.

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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