ARTICLES Crisis on the Immigration Bench

Transcription

ARTICLES
Crisis on the Immigration Bench
AN ETHICAL PERSPECTIVE
Michele Benedetto†
I.
INTRODUCTION
When Naing Tun walked into an immigration courtroom
seeking to remain in the United States, he expected to plead
his case before a neutral arbiter. Mr. Tun had painstakingly
compiled documents and gathered witnesses to prove his claim
for asylum. He had prepared himself to revisit difficult
memories of the torture and abuse he had suffered under
government officials in his home country, Burma.
Unfortunately for Mr. Tun, he appeared before an
overworked immigration judge who personified the failures
that exist in United States immigration courts. The
immigration judge made a series of conclusions regarding Mr.
Tun’s testimony later found to be erroneous by an appellate
court.1 The judge also improperly excluded evidence and
witness testimony submitted by Mr. Tun. Most alarmingly, the
judge disregarded evidence showing that the court-appointed
translator did not correctly translate Mr. Tun’s testimony. The
†
Associate Professor, Golden Gate University School of Law, San Francisco,
California. J.D., New York University School of Law. The author once served as a
judicial intern in a New York City immigration court. I am grateful to Professor
Anthony Thompson, Professor Philip Schrag, and Professor Andrew Perlman for their
helpful feedback on earlier drafts. I wish to thank my colleagues at Golden Gate
University School of Law for their support, particularly Eric Christiansen and David
Oppenheimer, and research assistants Susana Garcia, Julie Mercer, and Gabriel
Neises. This article is dedicated to Maryellen and Jim Benedetto, and to the Honorable
Napoleon A. Jones, Jr., whose service on the federal bench exemplifies the best of
judicial ethics.
1
Tun v. Gonzales, 485 F.3d 1014, 1027-29 (8th Cir. 2007).
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judge then relied on the erroneous translation to deny Mr.
Tun’s claim for asylum.2
Mr. Tun possessed the resources to appeal the decision
of the immigration judge. Without the intervention of the
Eighth Circuit Court of Appeals, who criticized the conduct of
the immigration judge, Mr. Tun would surely have been
returned to Burma to face further persecution.3
Najah Georges Elias faced a similarly challenging
experience in immigration court. Seeking to avoid removal to
Iraq, where he believed he would be persecuted for his religion,
Mr. Elias requested asylum in the United States. During his
hearing, the immigration judge addressed Mr. Elias in a
manner later described by the Sixth Circuit Court of Appeals
as “argumentative, sarcastic, and sometimes arguably
insulting.”4 The court noted the immigration judge appeared to
“badger” Mr. Elias at times during the hearing, “likely making
[Mr. Elias] more nervous and affecting his testimony.”5 As a
result of the immigration judge’s hostility and bias toward Mr.
Elias, the court vacated Mr. Elias’s removal order and
remanded his case for consideration before a different
immigration judge.6 As the court stated, “[Mr. Elias] was
entitled to a fair hearing, but did not receive one.”7
Mr. Tun’s and Mr. Elias’s experiences represent a
widespread problem. Legal scholars, appellate judges,
practitioners, and even the former United States Attorney
General have expressed growing concern regarding the status
of the immigration court system.8 As Judge Richard Posner
noted in 2005, the adjudication of cases by immigration judges
has “fallen below the minimum standards of legal justice.”9
Later that year, the New York Times reported that federal
2
Id. at 1030.
Id.
4
Elias v. Gonzales, 490 F.3d 444, 451 (6th Cir. 2007).
5
Id. at 452.
6
Id.
7
Id. at 452-53.
8
See, e.g., Adam Liptak, Courts Criticize Judges’ Handling of Asylum Cases,
N.Y. TIMES, Dec. 26, 2005, at A1; Sydenham B. Alexander III, A Political Response
to Crisis in the Immigration Courts, 21 GEO. IMMIGR. L.J. 1 (2006); Benslimane v.
Gonzales, 430 F.3d 828, 830 (7th Cir. 2005); Memorandum to Immigration Judges
from Attorney General Alberto Gonzales (Jan. 9, 2006), available at http://
www.humanrightsfirst.info/pdf/06202-asy-ag-memo-ijs.pdf.
9
Benslimane, 430 F.3d at 830.
3
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469
appeals courts “repeatedly excoriated” immigration judges for a
“pattern of biased and incoherent decisions.”10
Scholars have accurately termed the situation a “crisis”
and are calling for major structural reforms.11 For example, in
the Georgetown Immigration Law Journal in Fall 2006,
Sydenham B. Alexander III outlined evidence showing that
immigration courts are failing to properly apply the law.12 Mr.
Alexander proposed a political solution to the problem,
suggesting the creation of a political campaign designed to
“force needed changes to the immigration court system.”13 More
recently, in a Stanford Law Review article, Professors Jaya
Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag
analyzed data from asylum offices, immigration courts, the
Board of Immigration Appeals, and the United States Courts of
Appeal showing remarkable inconsistencies in grant rates for
asylum decisions among immigration courts, and even among
judges in the same courthouse.14 Professors Ramji-Nogales,
Schoenholtz, and Schrag were “troubled” by the ramifications
of their findings, which indicated an asylum applicant’s case is
“seriously influenced by a spin of the wheel” assigning his case
to a particular judge.15
Additional evidence of the problem can be found in cases
reviewed by the circuit courts.16 Many immigration judges
appear to be determining cases in a haphazard manner, with
decisions influenced more by personal preferences than by
careful consideration of facts and law.17 As a result, litigants in
immigration court can no longer be assured of ethical and
10
Liptak, supra note 8.
Alexander, supra note 8, at 11; see also Jaya Ramji-Nogales et al., Refugee
Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295 (2007); Eliot
Walker, Asylees in Wonderland: A New Procedural Perspective on America’s Asylum
System, 2 NW J.L. & SOC. POL’Y 1, 1 (2007) (“That the American asylum system has
fallen into disrepute is no longer a significantly contested point of debate.”); Evelyn H.
Cruz, Double the Injustice, Twice the Harm: The Impact of the Board of Immigration
Appeals’s Summary Affirmance Procedures, 16 STAN. L. & POL’Y REV. 481, 507 (2005).
12
Alexander, supra note 8, at 11-36.
13
Id. at 45.
14
Ramji-Nogales et al., supra note 11, at 296, 332.
15
Id. at 378.
16
See infra Part III.E; see also cases cited infra note 149.
17
See, e.g., Sun v. Bd. of Immigration Appeals, No. 05-4447, 2007 WL
2705601 at *3 (2d. Cir. Sept. 14, 2007) (removing an immigration judge from a case
because her comments to the asylum applicant and her conduct during the hearing
created “substantial uncertainty as to whether the record below was fairly and reliably
developed”); see also Nina Bernstein, Judge Who Chastised Weeping Asylum Seeker Is
Taken Off Case, N.Y. TIMES, Sept. 20, 2007, at B1.
11
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accurate decision-making when they present their case to an
immigration judge. Scholars and reform advocates have
extensively considered the causes of this problem and the
resulting surge of appeals to the circuit courts: contributing
factors include recent structural changes to the immigration
court system, lack of resources for immigration judges, and
pressure on judges to decide cases expeditiously.18 When an
element of the American judicial system is consistently
adjudicating cases using biased or legally incorrect reasoning,
the result is indeed a “crisis.”
The purpose of this article is to suggest a new lens
through which to examine the crisis in immigration courts:
judicial ethics. Ethical considerations frequently play a decisive
role in the resolution of immigration cases, in part because the
outcomes for litigants in immigration courts can depend almost
entirely on the attitude of the judge. Accordingly, the
acknowledged crisis in immigration courts has severe
implications for judicial ethics. Because the term “judicial
ethics” encompasses a broad array of principles, this article will
narrow its focus to bias and incompetence on the part of
immigration judges in the courtroom.
Part II considers the unique structure of the
immigration court, focusing on the current disciplinary
procedures for immigration judges and Attorney General John
Ashcroft’s “streamlining” reforms of 2003. Part III then
discusses the existence of an ethical crisis through statistics
showing inconsistent decisions and cases reviewed by circuit
courts illustrating judicial bias and incompetence. Part IV next
examines causes of such conduct and pending solutions to the
problem. Part IV pays special attention to the Attorney
General’s proposed “Codes of Conduct for Immigration Judges
and BIA Members.” While some would argue the mere
existence of this suggested standard of conduct is promising,
Part IV explains that the new Codes of Conduct lack both
specificity and enforceability.
18
The causes of the “surge” in appeals to the circuit courts have been much
examined by legal scholars. See, e.g., Alexander, supra note 8, at 9-10; John R.B.
Palmer, The Nature and Causes of the Immigration Surge in the Federal Courts of
Appeals: A Preliminary Analysis, 51 N.Y. L. SCH. L. REV. 13, 14-15 (2006-2007); Martin
S. Krezalek, How to Minimize the Risk of Violating Due Process Rights While
Preserving the BIA’s Ability to Affirm Without Opinion, 21 GEO IMMIGR. L.J. 277, 289
(2007); Gerald Seipp & Sophie Feal, Overwhelmed Circuit Courts Lashing Out at the
BIA and Selected Immigration Judges: Is Streamlining to Blame?, 82 INTERPRETER
RELEASES 2005, 2005-07 (Dec. 19, 2005).
2008]
471
This article not only analyzes the existing crisis with an
eye toward the ethical implications of the challenges facing
immigration courts, but also offers proposals designed to
encourage unbiased and competent behavior on the
immigration bench. Accordingly, Part V recommends practical
reforms in response to the ethical nature of this crisis.
Implementation of these reforms will initiate the process of
restoring the ethical integrity of the immigration bench.
II.
THE STRUCTURE OF THE IMMIGRATION COURT SYSTEM
A.
The Players: Members of the Executive Branch
Immigration judges and their courtrooms do not operate
as members of the Judicial Branch of government. Because
immigration issues often involve “especially sensitive political
functions that implicate questions of foreign relations,”19 courts
recognize that the decisions permitting or preventing foreign
nationals from immigrating are “frequently of a character more
appropriate to either the Legislature or the Executive [Branch]
than to the Judiciary.”20
Hence, the Executive Branch is responsible for the
establishment of policy and procedures relating to immigration
proceedings. This responsibility has been entrusted to the
Department of Justice (“DOJ”) since 1940 and is delegated to
the Attorney General.21 Currently, immigration judges are
members of the Department of Justice’s Executive Office of
Immigration Review (“EOIR”), an agency within the DOJ
created in 1983.22
Under authority delegated by the Attorney General,
EOIR “interprets and administers” immigration law by
“conducting immigration court proceedings, appellate reviews,
19
INS v. Abudu, 485 U.S. 94, 110 (1988); see also Chae Chan Ping v. United
States, 130 U.S. 581, 606 (1889) (noting that it is a sovereign power of government to
“exclude foreigners from the country whenever, in its judgment, the public interests
require such exclusion”).
20
Mathews v. Diaz, 426 U.S. 67, 81 (1976); see also Robert M. Cannon, A
Reevaluation of the Relationship of the Administrative Procedure Act to Asylum
Hearings: The Ramifications of the American Baptist Churches’ Settlement, 5 ADMIN.
L.J. 713, 716 (1991).
21
See Nationality Act of 1940, Pub. L. No. 76-853 § 327, 54 Stat. 1137, 115051 (1940); see also Alexander, supra note 8, at 8 n.45.
22
Executive Office of Immigration Review, U.S. Dep’t of Justice, Missions
and Functions Statement [hereinafter DOJ Mission Statement], available at
http://www.usdoj.gov/jmd/mps/manual/eoir.htm#content (signed by John Ashcroft Nov.
19, 2004).
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and administrative hearings.”23 EOIR includes the Office of the
Director, the Board of Immigration Appeals, the Office of the
Chief Immigration Judge (“OCIJ”), and the Office of the Chief
Administrative Hearing Officer.24
The OCIJ manages the fifty-three immigration courts
located around the country.25 Immigration judges (“IJs”)
adjudicate individual immigration cases and their decisions are
usually unpublished oral decisions recorded on tapes.26 The
Attorney General sets the qualifications and terms of office for
IJs, who are paid salaries of $109,720 to $149,200.27 The
majority of judges appointed to the immigration bench in the
initial years of EOIR’s existence fit the same profile: white,
male judges in their forties, fifties, or early sixties, who nearly
all formerly worked for the Immigration and Naturalization
Service (“INS”) prosecuting immigration cases.28
B.
The Appointment Process
The appointment process for immigration judges differs
widely from the process for federal, state, and administrative
law judges. Federal judges are nominated by the President and
appointed with the advice and consent of the Senate.29 In
addition to public confirmation hearings before members of the
Senate, federal judicial nominees undergo investigations by the
FBI, Department of Justice, and the American Bar Association
(“ABA”).30 Theoretically, this type of vetting process helps to
ensure that only “ethical” persons become Article III judges,
thus minimizing the occurrence of unethical behavior on the
federal bench.31
23
Id.
Id.
25
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-06-771, EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW CASELOAD PERFORMANCE REPORTING NEEDS IMPROVEMENT
(2006) [hereinafter GAO REPORT], available at http://www.gao.gov/new.items/
d06771.pdf.
26
Alexander, supra note 8, at 9.
27
Id.
28
Telephone Interview with anonymous former IJ, July 25, 2007 [hereinafter
Former IJ Interview]. The current immigration bench is more diverse. Id.
29
Fair and Independent Courts: A Conference on the State of the Judiciary,
Appendix I: Tiers of Federal Judges—Article III and Statutory Federal Judges, Their
Numbers, Selection, and Tenure, 95 GEO L.J. 1009, 1015 (2007).
30
THOMAS E. BAKER, THE GOOD JUDGE: REPORT OF THE TWENTIETH CENTURY
FUND TASK FORCE ON FEDERAL JUDICIAL RESPONSIBILITY 52 (1989).
31
Id. (“[T]he appointment process performs double duty as a mechanism for
keeping the already corrupt, infirm, or unable person off the bench and as a screen to
24
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473
State judges can be either appointed or elected,
depending on the process prescribed by the individual state.32
State judges generally do not undergo confirmation hearings,
but appointed judges can be subject to approval by designated
commissions.33
The selection of administrative law judges (“ALJs”) to
work in federal agencies is entrusted to the U.S. Office of
Personnel Management. Candidates for ALJ positions must
meet licensing and experience requirements, and must pass a
competitive administrative law judge examination to qualify
for an ALJ position.34 To be considered, an applicant must be a
licensed attorney with seven years of litigation or
administrative trial experience.
In contrast, immigration judges are appointed by the
Attorney General and act under his control and supervision.35
Immigration judges traditionally are individuals with
immigration law expertise, who are chosen through a
competitive civil service process.36 Those applying for the
positions are vetted by EOIR, and EOIR’s recommendations
are forwarded to the Office of the Deputy Attorney General,
where they are usually approved.37 Contrary to the procedure
for federal judges, the appointment process for immigration
judges is not subject to a broad system of checks and balances;
rather, the Executive Branch alone is responsible for the
appointment of immigration judges. Unlike administrative law
judges, immigration judges historically have not been required
to pass a competitive exam to be appointed to the bench.38
select judges who are, at once, independent and committed to the separation of powers
and federalism.”).
32
California state judges, for example, can be appointed by the governor and
confirmed by the commission on judicial appointments, or can be elected through a
nonpartisan election. See AMERICAN JUDICATURE SOCIETY, CALIFORNIA: CURRENT
METHODS OF JUDICIAL SELECTION, available at http://www.ajs.org/js/CA_methods.htm
(last visited Feb. 20, 2008).
33
See AMERICAN JUDICATURE SOCIETY, SUMMARY OF INITIAL ELECTION
METHODS, available at http://www.ajs.org/js/SummaryInitialSelection.pdf (last visited
Feb. 20, 2008).
34
U.S. OFFICE OF PERSONNEL MANAGEMENT, QUALIFICATION STANDARD
FOR ADMINISTRATIVE LAW JUDGE POSITIONS, available at http://www.opm.gov/
qualifications/alj/alj.asp (last visited Sept. 20, 2007).
35
8 U.S.C. § 1101(b)(4) (2006); see also GAO REPORT, supra note 25, at 1 n.2.
36
See GAO REPORT, supra note 25, at 1 n.6.
37
Emma Schwartz & Jason McLure, DOJ Made Immigration Judgeships
Political, LEGAL TIMES, May 28, 2007.
38
Attorney General Gonzales recently directed the EOIR Director to
“[a]dminister an examination for newly-appointed immigration judges . . . with respect
to their familiarity with key principles of immigration law before they begin to
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The appointment process for IJs changed under the
leadership of Attorney General John Ashcroft and has been
criticized in recent months for lacking public visibility.39 The
lack of transparency in the process is an especially important
issue in light of recent revelations that the Bush
administration has consistently appointed individuals with
little or no immigration experience to the immigration bench.40
There are allegations that Attorney General Ashcroft and his
successor, Alberto Gonzales, politicized the appointment
process and promoted the hiring of unqualified individuals,
even though the DOJ explicitly requires seven years of relevant
legal experience.41 While testifying before Congress for the
Department of Justice, former aide to the Attorney General
Monica Goodling acknowledged that she “evaluated candidates
based on her perception of their political loyalties” and “asked
inappropriate questions of many applicants for career jobs at
the department,” including immigration judge positions.42
One veteran immigration attorney, who was passed over
for two judgeships in favor of political friends of the Bush
administration, has even sued the DOJ for discrimination.43
Responding to the lawsuit, the DOJ stated that “all but four
immigration judges chosen . . . from late 2003 to 2006[] were
hired without public competition.”44 Half of the judges chosen
since 2004 did not have any immigration experience.45
In a recently publicized example, a newly appointed
immigration judge in Lancaster, California, had minimal
adjudicate matters . . . .” Authorities Delegated to the Director of the Executive Office
for Immigration Review, and the Chief Immigration Judge [hereinafter Authorities
Delegated to the Director], 72 Fed. Reg. 53,673, 53,677 (Sept. 20, 2007) (codified at 8
C.F.R. pt. 1003.0(b)(1)(vi) (2007)).
39
See, e.g., Schwartz & McLure, supra note 37.
40
Id.
41
See Scott Horton, Meltdown at DOJ: The Story of the Immigration Judge
Scam, HARPER’S, May 30, 2007, available at http://www.harpers.org/archive/2007/
05/hbc-90000186; see also Dan Eggen, Officials Say Justice Dept. Based Hires
on Politics Before Goodling Tenure, WASH. POST, May 26, 2007, at A2; David Johnston
& Eric Lipton, Bush Reaffirms His Support for Gonzales, N.Y. TIMES, May 25, 2007,
at A17.
42
Schwartz & McLure, supra note 37, at *2. Retired IJ Bruce Einhorn, noting
the shift to politically motivated appointments, stated that “A lot of my colleagues in
[the immigration] bar seemed to have applications pending for years without ever
being interviewed while people with contacts at the White House were being appointed
at warp speed.” Id. at *30.
43
Id. at *50
44
Amy Goldstein & Dan Eggen, Immigration Judges Often Picked Based on
GOP Ties, WASH. POST, June 11, 2007, at A1.
45
Id.
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immigration experience when he was appointed to the
immigration bench; in the nine years prior to his appointment,
Judge Ted White had worked as a public defender and as an
administrative law judge.46 Judge White resigned shortly before
his one-year probation period was completed but not before
attorneys recognized that “he didn’t really understand the
law. . . . He often seemed to rely on trial attorneys [i.e.,
government prosecutors] for guidance.”47 In addition to raising
serious questions about judicial competence, Judge White’s
appointment highlighted the need for a more visible selection
process for immigration judges.
Judges and immigration experts have sharply criticized
the DOJ for these appointment practices. For example, a
deputy director from the American Immigration Lawyers
Association (“AILA”) voiced concern that “when we start seeing
people who look like [they’re fulfilling] someone’s political debt
get these positions, it starts to become disturbing.”48
In response to such criticism, the Attorney General
changed the appointment process. In April 2007, the DOJ
implemented a new hiring program requiring “public
announcements of open positions and detailed evaluations and
interviews, with a final decision still in the hands of the
Attorney General.”49 An open appointment process will
hopefully bring more experienced candidates to these positions,
and will increase the transparency of the selection process.
C.
Immigration Proceedings
A fair appointment process for immigration judges is
particularly important because an IJ often makes the ultimate
determination of an immigrant’s fate. An individual seeking
relief from deportation usually enters the murky world of
immigration law with a “removal proceeding” initiated by the
U.S. Department of Homeland Security (“DHS”). If a foreign
national is found to be removable, he may be eligible to apply
46
Press Release, U.S. Dep’t of Justice, Immigration Judge Takes Oath in
Lancaster (Sept. 28, 2006), available at http://www.usdoj.gov/eoir/press/06/White.pdf.
47
Sandra Hernandez, Immigration Judge’s Sudden Resignation Raises
Eyebrows, L.A. DAILY J., July 10, 2007, available at www.bibdaily.com/index.cgi (enter
keyword “pistol” and search in titles for Pistol-Packin’ IJ Abruptly Quits). It was
revealed after his resignation that Judge White kept handguns and ammunition in his
judicial chambers, conduct that is prohibited by the DOJ. Id.
48
Goldstein & Eggen, supra note 44.
49
Id.
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for various forms of discretionary relief, including voluntary
departure, cancellation of removal, and asylum.50 To avoid
deportation through discretionary relief, an immigrant must
prove that he is eligible for such relief under the law and that
he “deserves such relief as an exercise in discretion.”51
Proceedings usually result in an evidentiary hearing
held before an immigration judge, in which the IJ has
discretion to determine whether the applicant is eligible to
remain in the United States.52 This hearing is critical for the
applicant seeking to avoid deportation. For many persons, the
immigration court hearing represents their only chance to
present evidence supporting their case.53
Decisions made by immigration judges are not subject to
the ordinary procedures of judicial review.54 If either the foreign
national or the United States disagrees with the immigration
judge’s determination, they may petition for review with the
Board of Immigration Appeals (“BIA”). The BIA serves as the
second level of adjudicators within the Department of Justice,
and issues unpublished but written decisions.55 In 2002,
Attorney General John Ashcroft restructured the BIA, which
now has eleven members hearing appeals from decisions
handed down by immigration judges.56
BIA decisions may be further appealed to the U.S.
Courts of Appeal. In theory, the Supreme Court could accept a
petition for certiorari from an immigrant ordered to be
removed. In practice, however, the Supreme Court has only
accepted such review in a “handful” of cases.57 Judicial
impartiality and fair proceedings are therefore especially
important, particularly for immigrants facing persecution in
their home countries. A loss in immigration court resulting in
50
For a description of these forms of discretionary relief, see Executive
Office for Immigration Review, U.S. Dep’t of Justice, Fact Sheet: Forms of Relief from
Removal
(Aug.
3, 2004),
available
at
http://www.usdoj.gov/eoir/press/04/
ReliefFromRemoval.htm.
51
Id.
52
See Stephen H. Legomsky, Deportation and the War on Independence, 91
CORNELL L. REV. 369, 371-2 (2006); Ramji-Nogales et al., supra note 11, at 308-09.
53
Ramji-Nogales et al., supra note 11, at 326.
54
Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 (1976) (“[T]he power
over aliens is of a political character and therefore subject only to narrow judicial
review.”).
55
56
DOJ Mission Statement, supra note 22. For a more detailed discussion of
Ashcroft’s reforms, see infra Part II.E.
57
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477
removal could be a “death sentence for some asylum seekers
whose cases are wrongly denied.”58
D.
Ashcroft’s Reforms: The Streamlining Regulations
In the late 1990s, the BIA’s delayed response in
reviewing removal orders created concern that foreign
nationals were filing appeals merely to remain longer in the
United States.59 In 2002 and 2003, Attorney General John
Ashcroft implemented a series of reforms in an attempt to
reduce the delays and the backlog of cases in the BIA.60
One of Ashcroft’s reform measures altered the
procedures of the BIA appellate process. The standard BIA
process had operated in a style much like the federal appellate
courts; BIA members decided cases as three-member panels
and issued reasoned written opinions.61 Ashcroft’s streamlined
regulations eliminated the BIA’s three-member panels except
in a few categories of cases.62 Additionally, the BIA was ordered
to cease writing opinions and instead issue a single-member
affirmance without opinion if the IJ’s decision should be
upheld.63
As he proclaimed the importance of decreasing the BIA
backlog, Ashcroft’s reforms went one step further. He
decreased the number of positions on the BIA from twentythree to eleven.64 Although Ashcroft refused to explain what
criteria he would use to determine which members would be
removed, he was later criticized for selecting those BIA
members most likely to rule in favor of foreign nationals for
removal.65 In fact, “liberal board members appear to have been
58
Id. at 327.
60
Board of Immigration Appeals: Procedural Reforms to Improve Case
Management, 67 Fed. Reg. 54,878 (Aug. 26, 2002) (to be codified at 8 C.F.R. pt. 3)
[hereinafter Procedural Reforms].
61
Legomsky, supra note 52, at 375.
62
Procedural Reforms, supra note 60, at 54,880; see also Legomsky supra
note 52, at 375.
63
Procedural Reforms, supra note 60, at 54,885-86, see also Legomsky supra
note 52, at 375.
64
65
Legomsky, supra note 52, at 376. According to one board member who left
shortly before the changes occurred, “It was a purge. They brought in people who have
all worked from one side of the issue, the government perspective.” David Adams,
Courts Overwhelmed by Immigration Cases, ST. PETERSBURG TIMES, May 25, 2006,
available at http://www.sptimes.com/2006/05/29/Worldandnation/Courts_overwhelmed_
by.shtml. This criticism is supported by data showing that the most “liberal” members
59
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specifically targeted, as those are the ones that were
removed.”66 The majority of removed BIA members had prior
work experience in private practice, immigration advocacy
organizations, and academia.67
Ashcroft’s reforms immediately created one desired
effect: the BIA backlog has significantly diminished. In 2003,
17% of IJ decisions were appealed to the BIA.68 The percentage
of BIA appeals has decreased each year since the reforms were
implemented, and only 9% of decisions were appealed to the
BIA in 2006.69 The number of “summary affirmances,” in which
Board members affirm IJ decisions without stating whether
they agree with the IJ’s reasoning, increased from 3% to 60% in
a seven-month period during 2002.70 Moreover, BIA members
increasingly held in favor of the government and against
of the BIA were fired. Legomsky, supra note 52, at 376, 376 nn.38, 39 (citing Peter J.
Levinson, The Façade of Quasi-Justicial Independence in Immigration Appellate
Adjudications, 9 BENDER’S IMMIGR. BULL. 1154, 1164 (2004)).
66
Telephone Interview with Dana Leigh Marks, President, Nat’l Ass’n of
Immigration Judges (Sept. 14, 2007) [hereinafter Marks Interview]. (The National
Association of Immigration Judges is a union.)
67
Ramji-Nogales et al., supra note 11, at 353. Attorney General Alberto
Gonzales announced in September 2006 that he would add four member positions to
the BIA. Press Release, U.S. Dep’t of Justice, Attorney General Alberto R. Gonzales
Outlines Reforms for Immigration Courts and Board of Immigration Appeals (Aug. 9,
2006), available at http://www.usdoj.gov/opa/pr/2006/August/06_ag_520.html. Notably,
he “did not suggest that the members who had been appointed under a Democratic
Administration and removed to other jobs . . . would be restored to the Board.” RamjiNogales et al., supra note 11, at 386-87.
68
See OFFICE OF PLANNING, ANALYSIS, & TECHNOLOGY, EXECUTIVE OFFICE
OF IMMIGRATION REVIEW, U.S. DEP’T OF JUSTICE, FY 2006 STATISTICAL YEARBOOK A2
(2007) [hereinafter 2006 YEARBOOK], available at http://www.usdoj.gov/eoir/statspub/
fy06syb.pdf (last visited Feb. 25, 2008).
69
Id. One reason for the decrease in appeals may be recognition on the part
of litigants that appealing to the BIA will almost inevitably result in an affirmation of
the IJ’s decision, requiring a subsequent appeal to the Circuit Courts. Without the
resources to successfully appeal a decision to the Circuit Courts, litigants may be
choosing not to appeal at all. See Cruz, supra note 11, at 508 (“[M]any immigrants lack
the financial means to pursue an appeal to the circuit court, to file a motion to
reconsider, and to litigate upon remand.”). This logic, of course, was part of the goal of
the streamlining process.
70
Alexander, supra note 8, at 12; DORSEY & WHITNEY LLP, BOARD OF
IMMIGRATION APPEALS: PROCEDURAL REFORMS TO IMPROVE CASE MANAGEMENT app. 25
(2003), http://www.dorsey.com/files/upload/DorseyStudyABA_8mgPDF.pdf; see also
Martin S. Krezalek, Note, How to Minimize the Risk of Violating Due Process Rights
While Preserving the BIA’s Ability to Affirm Without Opinion, 21 GEO. IMMIGR. L.J.
277, 279 (2007) (arguing that summary affirmances potentially violate the rights of
foreign nationals).
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foreign nationals; Board decisions granting relief to foreign
nationals fell from 25% to 10%.71
However, the BIA still suffers from a heavy workload.
In 2006, the eleven members of the BIA completed 41,479
appeals.72 According to Chief Judge of the Second Circuit John
M. Walker, “For the BIA to keep current on its docket, even
with streamlining so that the disposition is by a single judge,
each judge must dispose of nearly 4,000 cases a year—or about
80 per week—a virtually impossible task.”73
Ashcroft’s reforms have been heavily criticized for
lessening the quality of work performed by the BIA.74 Indeed,
immigration judges themselves recognize the problems
inherent in this limited review process. The President of the
National Association of Immigration Judges, Dana Leigh
Marks, noted that many immigration judges were trained to
render oral decisions from the bench, with no need to “make it
formal and pretty” because the BIA would serve as the
“polishers” for the decisions.75 Now, “the BIA is issuing all of
these affirmances without opinion and we have no resources to
do a top-notch job from the beginning.”76
In addition to the structural impact of these reforms,
the changes raise considerable ethical implications. For
example, the task of reviewing both the decisions and the
behavior of immigration judges has fallen on the circuit courts
because BIA members are less able to thoroughly review IJ
determinations. But circuit courts were not designed—and
should not be required—to monitor ethical behavior. The
71
Alexander, supra note 8, at 13 (noting that “these changes increased by
thousands the number of noncitizens whose administrative appeals were rejected
without written explanation”).
72
2006 YEARBOOK, supra note 68, at S2.
73
Statement of Hon. John M. Walker, Jr., Chief Judge, U.S. Court of Appeals
for the Second Circuit, before the Senate Judiciary Committee, Apr. 3, 2006,
at 3 [hereinafter Walker Statement], available at http://www.aila.org/content/
default.aspx?docid=18996 (last visited Feb. 25, 2007); see also Albathani v. INS, 318
F.3d 365, 378 (1st Cir. 2003) (board member decided 50 cases on October 31, 2002, a
“rate of one every ten minutes over the course of a nine-hour day”); Alexander, supra
note 8, at 21.
74
See, e.g., Alexander, supra note 8, at 21. Immigration attorney Kerry Bretz
remarked, “Motion practice at the BIA is a joke. I get denials where it’s clear they
haven’t even read the motions.” Mark Hamblett, Extraordinary Measures Reduce
Circuit’s Immigration Case Backlog, N.Y. L.J., June 5, 2007, at 1.
75
Marks Interview, supra note 66.
76
Alexander, supra note 8, at 12-13 (citing Solomon Moore & Ann M.
Simmons, Immigrant Pleas Crushing Federal Appellate Courts: As Caseloads
Skyrocket, Judges Blame the Work Done by the Board of Immigration Appeals, L.A.
TIMES, May 2, 2005, at 1).
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potential for biased or incompetent behavior has significantly
increased since circuit courts simply cannot review every
immigration case for judicial misconduct.
Ashcroft’s reforms can be credited for bringing the crisis
in the immigration courts to light: the BIA is no longer
“cleaning up” immigration judges’ improper decisions, and
appellate justices and the public are now more aware of the
wide scope of the problem.77 However, while the reforms may
indeed raise public consciousness, unethical behavior is
harming litigants on an ongoing basis.
E.
Current Disciplinary Procedures for Immigration Judges
Neither the BIA nor the courts of appeal are designed to
monitor complaints of ethical misconduct in immigration
courts. In 2003 the EOIR Director established a procedure for
evaluating behavioral complaints against immigration judges.78
Under this system, EOIR and the Office of the Chief
Immigration Judge are responsible for monitoring complaints,
and complaint reports are “generated on a monthly basis for
internal use only.”79 The reports are sent to the EOIR Director,
and are intended to provide a “centralized and comprehensive
compilation of written and oral complaints” regarding
immigration judges’ conduct on the bench, as well as the status
of the complaints.80 Pursuant to this structure, the EOIR
Director has the responsibility to monitor the patterns of
misconduct on the part of immigration judges.
Complaints about the conduct of individual immigration
judges are brought to the OCIJ orally or in writing, and are
usually sent to the OCIJ by the Assistant Chief Immigration
Judge (“ACIJ”) with supervisory authority over the judge in
question.81 Beginning in 2007, complaints may also be sent to
the individual serving in the newly created Assistant Chief
77
Former IJ Interview, supra note 28.
GAO REPORT, supra note 25, at 14. Although EOIR and the OCIJ
established an “Immigration Court Evaluation Program” (“ICEP”) in 1997 to evaluate
court performance, the individual hearing decisions of judges are “the only aspect of
court evaluation that are not evaluated.” Id. at 13. The ICEP focuses instead on the
“courts’ organizational structure, caseload, and workflow processes to assess the
efficiency of the court in accomplishing its mission.” Id.
79
Id at 14.
80
Id.
81
Id. at 15.
78
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481
Immigration Judge for Conduct and Professionalism position.82
Complaints may be submitted by a variety of persons,
including “immigrants, the immigrants’ attorneys, DHS trial
attorneys, other immigration judges, other court staff, OCIJ
headquarters staff, and others.”83 The OCIJ notifies the EOIR
Director of a complaint filed against an immigration judge,
even before the OCIJ has an opportunity to verify the accuracy
of the claim.84 Thus, the EOIR Director is presumably wellinformed: in addition to receiving monthly compilations of
written and oral complaints, the EOIR Director is also notified
of individual complaints as they arise.
Despite the monitoring role of the EOIR Director, and
the newly created advisory role of the ACIJ for Conduct and
Professionalism, the ACIJ with supervisory authority over the
judge is directly responsible for addressing most complaints.85
In an August 2006 report, the Government Accountability
Office (“GAO”) disclosed that between fiscal years 2001 to 2005,
the OCIJ received 129 complaints against IJs.86 The OCIJ had
taken 134 actions in response to 121 complaints as of
September 30, 2005:87
[A]bout 25 percent (34 [complaints]) were found to have no merit;
about 25 percent resulted in disciplinary actions against the judges
that included counseling (18), written reprimand (9), oral reprimand
(3), and suspension (4); about 22 percent (29) were referred to DOJ’s
Office of Professional Responsibility or Office of the Inspector
General or EOIR’s office of General Counsel for further review; and
the remaining 28 percent (37) resulted in various other actions such
82
This position, created in 2007 as part of Attorney General Gonzales’s
reforms, is designed to “review[] and monitor[] all complaints against immigration
judges” and help “ensure that investigations of complaints are concluded as efficiently
as possible.” AILA-EOIR Liaison Meeting Agenda Questions, Apr. 11, 2007, at 3
[hereinafter AILA-EOIR Liaison Agenda], available at http://www.usdoj.gov/
eoir/statspub/eoiraila041107.pdf (last visited Feb. 25, 2008). Notably, however, the
ACIJ for Conduct and Professionalism does not hold disciplinary authority over IJs.
See id. (listing the position’s responsibilities as monitoring, reviewing, and tracking all
complaints).
83
GAO REPORT, supra note 25, at 27.
84
Id. at 28.
85
Id. An exception exists for complaints concerning allegations relating to
the “exercise of the authority of an attorney to investigate, litigate, or provide legal
advice.” Id. Such complaints are referred directly to the Office of Professional
Responsibility, which is responsible for handling such allegations. Id.
86
Id.
87
Id. The remaining eight complaints were still under review. Id.
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as informing complainants of the Office of
Responsibility process or their appeal rights to BIA.88
[Vol. 73:2
Professional
In light of recent publicity highlighting the prevalence
of unethical conduct on the part of IJs,89 the fact that only 129
complaints were filed over a four-year period is somewhat
startling. In reality, however, EOIR’s administrative complaint
procedure suffers from several weaknesses.90 These limitations
may explain the low number of reported complaints. Also,
recent reforms to the judicial review process for immigration
cases may have encouraged litigants to file appeals of their
cases in circuit courts,91 rather than filing disciplinary
complaints that have no effect on the substantive outcome of a
litigant’s case. Individuals suffering from biased, incompetent,
or otherwise unethical behavior on the part of immigration
judges should have a more effective means of recourse than
appealing to the circuit courts or relying on the inadequate IJ
disciplinary process.
III.
THE EXISTENCE OF AN ETHICAL CRISIS
A.
Judicial Ethics Generally
The American judicial system is premised upon the
ability of judges to be ethical and fair. Judges are held to the
highest standards of professional behavior because of the
powerful positions they hold.92 The American Bar Association
published a revised “Model Code of Judicial Conduct” in
February 2007.93 This Code applies to “anyone who is
authorized to perform judicial functions;” the newly revised
code specifically includes justices of the peace, magistrates,
court commissioners, and members of the administrative
judiciary within that definition.94
88
89
90
91
92
GAO REPORT, supra note 25, at 28-29.
See infra Part III.D-E.
See discussion infra Part IV.C.2.
See generally sources cited supra note 18.
JEFFREY M. SHAMAN ET AL., JUDICIAL CONDUCT AND ETHICS § 1.01 (3d ed.
2000).
93
AM. BAR ASS’N, ABA MODEL CODE OF JUDICIAL CONDUCT (2007)
[hereinafter ABA JUDICIAL CODE], available at http://www.abanet.org/judicialethics/
ABA_MCJC_approved.pdf.
94
Id., para. I(B) of “Application” section, at 6. The National Conference of
Administrative Law Judges endorsed a “Model Code of Judicial Conduct” for Federal
Administrative Law Judges in February 1989.
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483
As part of their ethical duties, all judges must make
competent decisions in an impartial manner, free from personal
bias or prejudice.95 Even so, judges work with varying degrees
of competence and are generally somewhat involved in the
affairs of society at large.
A judge’s involvement in the “outside world” is not
necessarily a negative characteristic, for such involvement can
“enrich[] the judicial temperament and enhance[] a judge’s
ability to make difficult decisions.”96 In reality, the balance
between the ideal of judicial impartiality and the reality of
personal preferences can be difficult to strike. This problem of
personal bias or prejudice becomes even more nuanced when it
is held against groups of people; unlike business or financial
interests, personal bias is subjective and difficult to identify.97
According to the ABA, the term “bias” is commonly
understood to indicate favoritism or opposition by a judge to a
concept or idea, while the term “prejudice” suggests “specially
favoring or opposing individuals.”98 The ABA Model Code of
Judicial Conduct specifically prohibits actions manifesting
either bias or prejudice in the performance of judicial duties.99
The determination of a judge’s competence can be easier
to identify than bias. The ABA declared in the 2007 Model
Code of Judicial Conduct that judicial competence “requires the
legal knowledge, skill, thoroughness, and preparation
reasonably necessary to perform a judge’s responsibilities of
judicial office.”100 One state supreme court established the test
for incompetence as “whether the conduct at issue establishes
that the [judge] lacks the requisite ability, knowledge,
judgment, or diligence to consistently and capably discharge
the duties of the office he or she holds.”101 Regardless of
jurisdiction, judges are expected to bring a basic level of
neutrality, knowledge, skill, and dedication to the cases
brought before them.
95
SHAMAN ET AL., supra note 92, § 4.01.
Id.
97
See id. § 4.04.
98
AM. BAR ASS’N, REPORTER’S EXPLANATION OF CHANGES: ABA MODEL CODE
OF JUDICIAL CONDUCT, 2007, Rule 2.3, Explanation of Comments, cmt. [1], at 16. This
article will use the term “bias” and “prejudice” in accordance with the ABA definitions.
99
ABA JUDICIAL CODE, supra note 93, Rule 2.3.
100
Id. Rule 2.5, cmt. [1].
101
In re Baber, 847 S.W.2d 800, 803 (Mo. 1993) (en banc); see also In re
Hunter, 823 So. 2d 325, 336 (La. 2002) (adopting the definition of judicial competence
used in In re Baber).
96
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Accordingly, federal rules, case law, and ethical codes of
conduct seek to ensure judicial competence, professionalism,
and impartiality.102 For example, most judges are required to
disqualify themselves if they hold personal antagonism against
a party, or hold “[a]nimosity or irrational bias, such as racial
prejudice,” against a particular group.103 Such beliefs would
obviously affect the ability of a judge to decide a case
impartially based only on facts and law, and would undermine
the judicial system.
B.
Ethical Codes of Conduct for Immigration Judges
Immigration courts in the United States are distinct
from other courts, and the fact that immigration judges do not
operate under the judicial branch has serious ethical
implications. As a unique body of adjudicators, immigration
judges must follow several codes of conduct. Because they are
employees of the executive branch, IJs are subject to the
Standards of Ethical Conduct for Employees of the Executive
Branch.104 In addition, IJs and BIA members must follow the
Department of Justice Codes of Conduct,105 the EOIR Ethics
Manual,106 and management policies of both EOIR and the
DOJ. The DOJ also recently proposed “Codes of Conduct for the
102
See, e.g., 28 U.S.C. § 455(a), (b) (2000) (requiring a federal judge to
disqualify himself in any case in which his impartiality might reasonably be
questioned); ABA JUDICIAL CODE, supra note 93, Rule 2.11 (same). Of course, the laws
and rules governing judicial conduct also address issues of conflicts of interest, ex parte
communications, and financial disclosures, among other things. Because a thorough
examination of each of these issues as they relate to IJs is beyond the scope of this
Article, the focus here is on the issues of bias and competence.
103
SHAMAN ET AL., supra note 92, § 4.04.
104
These standards are codified at 5 C.F.R. pt. 2635 (2007) and 5 C.F.R. pt.
3801 (2007).
105
The Regulations provide:
Employees of the Department of Justice are subject to the executive branchwide Standards of Ethical Conduct at 5 C.F.R. part 2635, the Department of
Justice regulations at 5 C.F.R. part 3801 which supplement the executive
branch-wide standards, the executive branch-wide financial disclosure
regulations at 5 C.F.R. part 2634 and the executive branch-wide employee
responsibilities and conduct regulations at 5 C.F.R. part 735.
28 C.F.R. § 45.1 (2007).
106
The Ethics Manual, distributed in 2001, is designed for members of the
Board of Immigration Appeals, Immigration Judges, and Administrative Law Judges
Employed by the Executive Office for Immigration Review. See Executive Office
for Immigration Review, U.S. Dep’t of Justice, Ethics Manual [hereinafter EOIR Ethics
Manual], available at http://www.usdoj.gov/eoir/statspub.htm (last visited Feb. 20,
2008).
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485
Immigration Judges and Board Members,” which are not yet in
final form.107 As an attorney, an IJ is also subject to the rules of
professional conduct in the state(s) where the IJ is a member of
the bar and in the state where she performs her duties.108
Notably, the ABA Model Code of Judicial Conduct,
which is used as a model for most state judicial codes of
conduct, is not binding on IJs and members of the BIA; rather,
the ABA Model Code is intended to be “aspirational” for IJs
and BIA members.109 In addition, the Code of Conduct for
United States Judges is not binding on IJs or BIA members
because they are not members of the judicial branch.110
C.
The Special Need for Ethical Behavior in Immigration
Court
Given so many applicable rules of conduct, the existence
of an ethical crisis in immigration courts may seem surprising.
After all, with six to seven sets of rules potentially serving as
guidance, how could an immigration judge fail to act in an
ethical manner?
107
The proposed text of the IJ Codes is published in the Federal Register. U.S.
Dep’t of Justice, Codes of Conduct for the Immigration Judges and Board Members, 72
Fed. Reg. 35,510-13 (June 28, 2007).
108
Id. These various codes of conduct have many parallels, including
prohibitions against bias and prejudice, conflicts of interest, impropriety and the
appearance of impropriety, and restrictions on extra-judicial activities such as political
activities. The codes also require a minimum level of competence on the part of judges.
Cf. THE STATE BAR OF CALIFORNIA, RULES OF PROFESSIONAL CONDUCT, available
at http://www.calbar.ca.gov/state/calbar/calbar_extend.jsp?cid=10158 (last visited Feb.
20, 2008); ABA JUDICIAL CODE, supra note 93; and CODE OF CONDUCT FOR UNITED
STATES JUDGES (2002) [hereinafter CODE FOR U.S. JUDGES], available at
http://www.uscourts.gov/guide/vol2/ch1.html (last visited Feb. 20, 2008).
109
EOIR Ethics Manual, supra note 106, at 1 n.1 (“[T]he Model Code of
Judicial Conduct is not binding on EOIR Judges, but its canons and commentary
present aspirational goals.”). The ABA, which published an updated version of the
Model Code for Judicial Conduct in April 2007, intended the Model Code to apply to
members of the “administrative law judiciary.” ABA JUDICIAL CODE, supra note 93,
Part I(B). Moreover, IJs are not subject to state judicial ethics codes governing state
judges. While extension of state judicial ethics codes on federal IJs is arguably valid
under the McDade Amendment, it would add more standards of conduct to the already
considerable number of codes applicable to them. See 28 U.S.C. § 530B (2008). As an
alternative, EOIR should focus on consolidating the ethical guidelines of IJs into one
comprehensive standard of conduct. See infra Part V.B.
110
The Code of Conduct for United States Judges applies to United States
circuit judges, district judges, Court of International Trade judges, Court of Federal
Claims judges, bankruptcy judges, and magistrate judges. CODE FOR U.S. JUDGES,
supra note 108, ch. I. The Tax Court, Court of Appeals for Veterans Claims, and Court
of Appeals for the Armed Forces have also adopted this Code. Id.
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In reality, the number of applicable codes is itself
indicative of a problem: Immigration judges do not have the
time or resources to review multiple codes of conduct on a
regular basis. Moreover, actual training in ethics-related issues
is substantially lacking for immigration judges. One former IJ
reported that EOIR’s training conferences for immigration
judges would occasionally include an hour or so related to
ethics, but there was “certainly no local training of judges on
ethics issues.”111 In fact, training conferences for immigration
judges were completely suspended for several years due to
budgetary constraints.112 During those years, immigration
judges did not receive any formal ethical training at all. The
DOJ again suspended training conferences for immigration
judges in February 2008 due to “budget constraints.”113
In addition, the heavy workload of immigration judges
leaves no time for discussions regarding ethical conduct. When
asked whether immigration judges spoke with each other about
ethical codes of conduct, a former IJ replied, “Nobody even
talked about it. The judges I served with didn’t know about
[ethical codes of conduct]. Their whole focus was on their
calendar, wondering ‘how am I going to get through these five
merits hearings I squeezed in today?’”114 With the pressures of
a busy calendar, guidelines relating to ethical conduct are
considered a low priority.
Immigration judges undeniably face a great number of
challenges in their daily work. With limited resources, they are
expected to make determinations which are often life-or-death
decisions for the litigants before them.115 Many cases coming
111
Denise Slavin, President of the National Association of Immigration
Judges, commented in 2006, “We [IJs] are so low on funds. We haven’t had a break off
the bench for three years. . . . We have had no training conferences, no cultural
sensitivity training.” Adams, supra note 65. For recommendations regarding formal
ethics training for IJs, see infra Part V.B.
113
Letter from Dana Leigh Marks, President, & Denise Noonan Slavin, Vice
President, National Association of Immigration Judges to Chief Judge David L. Neal,
Office of the Chief Immigration Judge (Feb. 19, 2008) [hereinafter NAIJ Letter] (on file
with author). Immigration judges protested the cancellation of training for IJs, noting
that the decision “will impact adversely on the quality of our work” because
“[c]ontinuous training is essential to maintain any kind of expertise, which we are
expected to have, in this area of the law.” Id.
114
115
As the U.S. Government Accountability Office recognized, IJs must balance
“adjudicating their caseload (all cases awaiting adjudication) in a timely manner while
at the same time ensuring that the rights of the immigrants appearing before them are
protected.” GAO REPORT, supra note 25, at 2.
112
2008]
487
before immigration judges involve complex legal or factual
issues, but, in 2006, only 35% of litigants were represented by
counsel.116 Relevant evidence is often unavailable, including
witnesses or documents that could prove persecution in a home
country.117 Also, only 11.6% of immigration court proceedings in
the 2006 fiscal year were conducted in English.118 As a result, it
can be difficult for immigration judges to identify relevant
issues or make “credibility determinations” to decide whether a
litigant is telling the truth. The latter point is arguably the
most important: since immigration judges are responsible for
the crucial determinations of a litigant’s credibility that often
decide the case, a litigant’s courtroom demeanor can have a
substantial impact on the success of his claim.119
Ashcroft’s streamlining reforms, minimizing judicial
review of an immigration judge’s opinions, place an even
greater emphasis on a foreign national’s initial proceeding
before the IJ. Unless a litigant is financially and practically
able to appeal a removal order to the circuit courts, a foreign
national’s ability to stay in the United States essentially lies in
the hands of the immigration judge.
For this reason, fair and competent adjudication in
immigration court proceedings is critical. Indeed, “trivial
mistakes [in immigration court] can unwittingly lead to flawed
decisions with grave consequences.”120 Individuals seeking relief
before an immigration judge must therefore be guaranteed
116
See 2006 YEARBOOK, supra note 68, at A1.
Alexander, supra note 8, at 19 (noting that the “ability to gather evidence
may be blocked by the very government alleged to be the persecutor”).
118
2006 YEARBOOK, supra note 68, at F1. In fiscal year 2006, 252 different
languages were spoken in immigration court proceedings, a nineteen percent increase
in language diversity since fiscal year 2002. Id.; see also Walker Statement, supra note
73 (discussing the “unique nature of immigration hearings,” wherein “[a]liens
frequently do not speak English, so the Immigration Judge must work with a
translator, and the Immigration Judge normally must go over particular testimony
several times before he can be confident that he is getting an accurate answer from the
alien”).
119
This is an especially important issue in light of the passage of the REAL ID
Act of 2005, which added a provision to the asylum statute instructing IJs to “evaluate
demeanor and consistency of statements to determine credibility.” Emergency
Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami
Relief of 2005. Div. B (REAL ID Act of 2005), Pub. L. No. 109-13, § 101(a), 119 Stat.
231, 303 (amending 8 U.S.C. § 1158(b)(3)(B)(iii) (Supp. 2005)); see Katherine E. Melloy,
Note, Telling Truths: How the REAL ID Act’s Credibility Provisions Affect Women
Asylum Seekers, 92 IOWA L. REV. 637, 640 (2007).
120
Ming Shi Xue v. BIA, 439 F.3d 111, 115 (2d Cir. 2006) (“[I]t is not
surprising that the position of overburdened immigration judges and overworked
courts has become a matter of wide concern.”).
117
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certain procedural rights, including the opportunity to present
evidence on their behalf in removal proceedings.121 Additionally,
a person seeking withholding of removal or relief under the
Convention Against Torture is entitled to a fair hearing under
the Due Process Clause of the Fifth Amendment of the
Constitution.122 In order to ensure the fairness of a removal
proceeding, the arbiter must be neutral, meaning “one who has
not pre-decided the case and who is not predisposed to
disregard a witness’s testimony . . . .”123
In addition to neutrality, immigration judges must
maintain a basic level of competence in immigration law. This
is especially true in light of the unique and difficult nature of
immigration cases. Denise Slavin, former President of the
National Association of Immigration Judges, noted,
“Immigration law is very complex. So generally speaking, it’s
very good to have someone coming into this area with [an]
immigration background. It’s very difficult, for those who don’t,
to catch up.”124 Also, immigration law changes often, and IJs
must be able to apply the most current laws to each case.
Unfortunately, in recent years the ability of
immigration judges to render competent decisions, and to set
aside their personal biases or prejudices against litigants, has
come into question.125 Indeed, the very fact that Attorney
General Alberto Gonzales proposed a new set of codes of
conduct indicates the government’s acknowledgment that a
crisis exists in immigration court.126
121
8 U.S.C. § 1229a(b)(4)(B) (2006).
Tun v. Gonzales, 485 F.3d 1014, 1025 (8th Cir. 2007); see also Al Khouri v.
Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004) (“The Fifth Amendment’s due process clause
mandates that removal proceedings be fundamentally fair.”).
123
Tun, 485 F.3d at 1025; see also Marshall v. Jerrico, Inc., 446 U.S. 238, 242
(1980) (“The Due Process Clause entitles a person to an impartial and disinterested
tribunal in both civil and criminal cases.”); Lopez-Umanzor v. Gonzales, 405 F.3d 1049,
1056 (9th Cir. 2005) (Due Process violation existed because IJ refused to hear relevant
testimony because of a prejudgment about the credibility of the witness).
124
Goldstein & Eggen, supra note 44, at A1.
125
See sources cited supra note 11.
126
See infra Part IV.B. Alberto Gonzales resigned from office in August 2007,
and his last day in office was September 17, 2007. Remarks of Attorney General
Alberto R. Gonzales Announcing His Resignation, Aug. 27, 2007, available at http://
www.usdoj.gov/archive/ag/speeches/2007/ag_speech_070827.html. Gonzales’s reform
directives have not changed since his resignation. See Kent B. Alexander, The Future of
the Justice Department, WASH. POST, Aug. 28, 2007 (noting that the Department of
Justice will continue its work even if there are changes among political appointees). On
September 17, 2007, President George W. Bush nominated Judge Michael Mukasey to
replace Attorney General Gonzales. Michael Abramowitz & Dan Eggen, With Justice
Pick, Bush Hopes to Avoid a Fight, WASH. POST, Sept. 18, 2007. The United States
122
2008]
D.
489
Statistical Inconsistencies
Considering the importance of the IJ’s decision-making
process, it is especially alarming to note that scholars
conducting recent statistical analyses have revealed evidence of
inconsistent decisions made by immigration judges.127 Despite
the fact that EOIR’s mission statement guarantees “uniform
application of the nation’s immigration laws in all cases,”
studies assessing the grant and deny rates of immigration
judges in the same type of case show that “immigration courts
are failing to meet this fundamental standard.”128
A recent study on this issue by Professors Jaya RamjiNogales, Andrew Schoenholtz, and Philip Schrag, published in
the Stanford Law Review (“Ramji-Nogales study”), identified
disturbing inconsistencies in the adjudication of immigration
law claims.129 Their analysis of immigration courts throughout
the country revealed “remarkable variation in decisionmaking” among different immigration officials, regions, judicial
circuits, and years.130 For example, a Chinese asylum seeker in
the Atlanta Immigration Court had a seven percent chance of
winning asylum, compared to a seventy-six percent chance of
winning asylum for a Chinese applicant in the Orlando
Immigration Court.131 The study also examined grant rate
disparities between judges from the same immigration court.132
Incredibly, the study found that three out of four immigration
courts housed judges with large grant rate disparities from
other judges, meaning they were “out of step with the other
judges in their courthouse.”133 Indeed, asylum applicants who
Senate confirmed Judge Mukasey as Attorney General on November 8, 2007. Laurie
Kellman, Mukasey Confirmed as Attorney General, ASSOCIATED PRESS, Nov. 9, 2007.
127
Ramji-Nogales et al., supra note 11, at 372. This 2007 study parallels
results discovered in a 2000 study published by the San Jose Mercury News. See
Fredric N. Tulsky, Asylum Seekers Face Capricious Legal System; Some Judges Grant
Asylum in Only 1 in 20 Cases, Others in 1 in Every 2; Former Government Immigration
Lawyers Are Toughest Asylum Judges; Rulings Vary Widely, Even for Applicants with
Similar Stories, SAN JOSE MERCURY NEWS, Oct. 18, 2000, at A1. For data results, see
TRAC, Judges Show Disparity in Denying Asylum, July 31, 2006, available at
http://trac.syr.edu/immigration/reports/160 (last visited July 22, 2007). For an excellent
analysis of this data and its implications, see Alexander, supra note 8, at 21-25.
128
Alexander, supra note 8, at 21 (citing DOJ Mission Statement, supra note
22).
129
130
Id. at 302.
131
Id. at 330-31.
132
Id. at 333.
133
Id. at 333-34.
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appeared before the highest granting judge were nearly thirty
times more likely to win their claims than applicants appearing
before the lowest granting judge.134 These statistics are
critically important, for they indicate that immigration law is
not being applied in a uniform manner. As the study’s authors
point out, the outcome of a refugee’s asylum claim depends
most on the identity of the judge assigned to hear his case.135
Disparities in the grant rates of immigration judges
were successfully correlated to differences in biographical
information of the judges.136 For example, the study found that
female immigration judges granted asylum in 53.8% of asylum
cases, while male judges granted relief in only 37.3% of asylum
cases.137 In addition, immigration judges with prior work
experience on the prosecutorial side of immigration proceedings
were 24% less likely to grant asylum than those with no prior
government experience.138 Notably, all judges with immigration
law backgrounds appointed by the Bush administration since
2001 had prosecutorial experience.139
These statistics cannot be relied upon to show unethical
behavior per se on the part of individual judges. However,
scholars have suggested the mere fact that such inconsistencies
existed within a court is some “evidence that the process is
inaccurate and unfair.”140 Indeed, the Ramji-Nogales study’s
authors concluded that the great deviation in grant rates for
some immigration judges suggests that an adjudicator could be
“imposing his or her own philosophical attitude (or personal
level of skepticism about applicants’ testimony) to the cases
under consideration.”141 The study’s authors believed their data
raised “serious questions about whether the results of cases are
excessively influenced by personal characteristics of the
judges.”142 Similarly, Mr. Alexander cited statistics showing
134
Ramji-Nogales et al., supra note 11, at 330-32.
Id. at 296.
136
Id. at 296.
137
Id. at 342.
138
Id. at 345-46.
139
Goldstein & Eggen, supra note 44, at A1.
140
Alexander, supra note 8, at 29; see also Jason D. Vendel, Note, General
Bias and Administrative Law Judges: Is There a Remedy for Social Security Disability
Claimants?, 90 CORNELL L. REV. 769, 773 (2005) (“[A] practical method of proof [to
show judicial bias] is by examining multiple decisions—either statistically or in some
other systematic manner.”).
141
142
Id. at 304. Similar concerns existed regarding grant rates for asylum
officers: “officers who adjudicate asylum applications in some of the eight regional
135
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491
disparities among immigration judges’ decisions as “evidence
of unfairness and inaccuracy” and an “indicator of the
immigration court crisis.”143
While all judges bring their personal experience to the
bench, ethical standards exist to ensure that judges do not rely
too heavily on their own preferences when making decisions.
Evidence of disparities in decision-making signifies that judges’
personal preferences may unduly influence their decisions in
court, since “inconsistency among judges suggests that bias and
prejudice are influencing the outcomes.”144 For example, as the
Ramji-Nogales study noted, “immigration lawyers have
sometimes complained that after an immigrant judge is lied to
several times by nationals of a particular country, the judge
tends to suspect that all nationals of that country are liars.”145
The notion that judges are basing their determinations on
personal preferences rather than on the law epitomizes bias on
the bench. Thus, in addition to calling for structural reform to
respond to the crisis in immigration courts, the Ramji-Nogales
study highlights the need for uniform ethical standards and
strict enforcement of such standards for immigration judges.
Unfortunately, with diminished monitoring of individual judges and courtrooms, it is more difficult to identify
potentially problematic behavior.146 In reality, the burden of
reprimanding immigration judges has fallen to the only
persons thoroughly reviewing their conduct: federal appellate
judges.
E.
Circuit Court Frustration
The frustration of circuit court judges, who are faced
with the onerous task of reviewing opinions from immigration
judges that are usually summarily affirmed by the BIA, is
rising. Since the 2003 reforms eliminating internal review
procedures for immigration cases went into effect, appeals to
the circuit courts have increased exponentially. For example,
while the Ninth Circuit received 11,238 petitions for review in
the thirty years between April 1, 1972 and April 1, 2002, it
offices of the Department of Homeland Security’s asylum office appear to have grant
rates that reflect personal outlooks rather than an office consensus.” Id. at 375.
143
144
See Alexander, supra note 8, at 25.
145
146
EOIR does have procedures for complaints against IJs, but those
procedures are inadequate. See discussion infra Part IV.C.2.a.
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received an incredible 18,263 petitions for review in just three
years between April 1, 2002 and October 1, 2005.147
The sheer number of petitions is not the only problem
plaguing circuit courts. In an influential 2005 opinion voicing
the concerns of appellate judges, Judge Posner of the Seventh
Circuit cited an extensive pattern of judicial bias and
inappropriate behavior on the part of immigration judges.148
Circuit judges following Judge Posner’s lead are increasingly
reprimanding immigration judges for problematic behavior.149
In 2007, the Second Circuit took the highly unusual step of
singling out an individual immigration judge for egregious
behavior on the bench, and recommending the Justice
147
Palmer, supra note 18, at 14 n.3. Similarly, the Second Circuit received
only 2360 petitions for review between April 1, 1972 and April 1, 2002, but received
7723 petitions for review between April 1, 2002, and October 1, 2005. Id. at 14 n.2.
148
Benslimane v. Gonzales, 430 F.3d 828, 829 (7th Cir. 2005). Judge Posner’s
list of circuit cases rebuking the conduct of IJs and the BIA includes Dawoud v.
Gonzales, 424 F.3d 608, 610 (7th Cir. 2005) (“The IJ’s opinion is riddled with
inappropriate and extraneous comments . . . .”); Ssali v. Gonzales, 424 F.3d 556, 563
(7th Cir. 2005) (“This very significant mistake suggests that the Board was not aware
of the most basic facts of [the petitioner’s] case . . . .”); Sosnovskaia v. Gonzales, 421
F.3d 589, 594 (7th Cir. 2005) (“The procedure that the IJ employed in this case is an
affront to [petitioner’s] right to be heard.”); Soumahoro v. Gonzales, 415 F.3d 732, 738
(7th Cir. 2005) (per curiam) (finding the IJ’s factual conclusion to be “totally
unsupported by the record”); Grupee v. Gonzales, 400 F.3d 1026, 1028 (7th Cir. 2005)
(finding the IJ’s unexplained conclusion to be “hard to take seriously”). Noting that
“[o]ther circuits have been as critical,” Judge Posner cited cases from different circuits,
including Wang v. Attorney Gen. of the U.S., 423 F.3d 260, 269 (3d Cir. 2005) (“The
tone, the tenor, the disparagement, and the sarcasm of the IJ seem more appropriate to
a court television show than a federal court proceeding.”); Chen v. U.S. Dep’t of Justice,
426 F.3d 104, 115 (2d Cir. 2005) (finding the IJ’s finding to be “grounded solely on
speculation and conjecture”); Fiadjoe v. Attorney Gen. of the U.S., 411 F.3d 135, 154-55
(3d Cir. 2005) (noting that the IJ’s “hostile” and “extraordinarily abusive” conduct
toward petitioner “by itself would require a rejection of his credibility finding”);
Korytnyuk v. Ashcroft, 396 F.3d 272, 292 (3d Cir. 2005) (“[I]t is the IJ’s conclusion, not
[the petitioner’s] testimony, that ‘strains credulity.’”). Id.
149
See, e.g., Elias v. Gonzales, 490 F.3d 444, 452 (6th Cir. 2007) (noting that
the IJ’s “intemperate” manner and sarcasm with petitioner “raised substantial
questions as to his bias and hostility toward” the asylum applicant); N’Diom v.
Gonzales, 442 F.3d 494, 500 (6th Cir. 2007) (Martin, J., concurring) (noting the
“significantly increasing rate at which adjudication lacking in reason, logic, and effort
from . . . immigration courts is reaching the federal circuits”); Sholla v. Gonzales, 492
F.3d 946, 952 (8th Cir. 2007) (IJ denied asylum even though “the record compels any
reasonable factfinder to conclude that [the applicant] suffered past persecution on a
protected ground”); Mece v. Gonzales, 415 F.3d 562, 572 (6th Cir. 2005) (“The Board’s
failure to find clear error in the immigration judge’s adverse credibility determination
leaves us, we are frank to say, more than a little puzzled.”); Iao v. Gonzales, 400 F.3d
530, 533 (7th Cir. 2005) (“The immigration judge’s opinion cannot be regarded as
reasoned . . . .”); Recinos de Leon v. Gonzales, 400 F.3d 1185, 1193-94 (9th Cir. 2005);
Zahedi v. INS, 222 F.3d 1157, 1166-68 (9th Cir. 2000). See generally Pasha v. Gonzales,
433 F.3d 530 (7th Cir. 2005).
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493
Department review each of this judge’s decisions.150 The judge
was later removed from the bench.151
Immigration lawyers practicing in immigration court
believe that biased and incompetent behavior is widespread on
the immigration bench.152 Anecdotal evidence of this type of
unethical conduct is plentiful in immigration cases recently
reviewed by the circuit courts. Two 2007 cases particularly
highlight the problems of bias and incompetence in
immigration court.
1. The Biased Immigration Judge: Tun v. Gonzales
To understand the impact of bias on the bench, we
return to the story of Naing Tun, a Burmese citizen seeking
asylum in the United States. In May 2007, in response to Tun’s
appeal of the IJ’s and BIA’s denials of his asylum claim, the
Eighth Circuit addressed the issue of bias in immigration
courtrooms.153 As a member of a minority group in Burma, Tun
filed an application for asylum claiming torture, past
persecution, and a fear of future persecution. Tun alleged he
had been arrested, interrogated, and beaten due to his political
activities.154 He further claimed he had been incarcerated for
three years and forced to do hard labor.155
To prove his claims, Tun submitted two expert opinions.
The first was a report by a recognized expert on conditions in
Burma. Despite the expert’s strong qualifications in the field
and his report speaking to a “critical, contested issue in the
case,”156 the IJ concluded that the expert’s document would “not
be given any weight” because the government was unable to
cross-examine him.157 The second expert opinion, also excluded
by the immigration judge, was a medical report submitted as
evidence of the residual trauma Tun endured due to torture at
the hands of Burmese authorities.158 Notwithstanding the
150
Ray Rivera, Court Urges Review of New York Judge’s Immigration Cases
That Are on Appeal, N.Y. TIMES, Feb. 15, 2007, at 1.
151
Nina Bernstein, Immigration Judge Is Reassigned to a Desk Job, N.Y.
TIMES, Mar. 13, 2007, at B1.
152
Interviews with anonymous immigration law practitioners, S.F., Calif.,
July and August 2007 (notes on file with author).
153
Tun v. Gonzales, 485 F.3d 1014 (8th Cir. 2007).
154
Id. at 1018.
155
Id.
156
Id. at 1017-18.
157
Id. at 1019.
158
Id. at 1019-20.
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physician’s extensive experience treating victims of trauma and
volunteer medical work in numerous war-torn countries, the IJ
concluded the physician was not a qualified expert, in part
because she had not personally been to Burma.159
These actions on the part of the IJ demonstrate an
unwillingness to consider properly proffered evidence
submitted by an asylum applicant.160 However, the bias of this
immigration judge against Tun became even more apparent as
his hearing continued. The IJ and the attorneys involved in the
case questioned Tun through a Burmese interpreter.161 Tun
provided detailed testimony of his arrest, beatings, and other
forms of mistreatment caused by the Burmese government for
his political activities. However, there were “at least a dozen
instances” where Tun indicated that he did not understand the
translator, and “at least a dozen other instances” where Tun’s
responses, as provided to the court by the translator, were
“confusing or not directly responsive to the questions originally
asked in English.”162 A native Burmese speaker present in the
courtroom interrupted the proceedings to inform the
immigration judge that “the official translator was not correctly
translating the questions and answers.”163 After the hearing,
the IJ declined Tun’s request to reopen the record or hold a
new hearing based on translation errors.164 Relying on Tun’s
allegedly “inconsistent” testimony, the IJ concluded that Tun
lacked credibility.165 Based on her adverse credibility
determinations, the immigration judge denied Tun’s request for
asylum.
The BIA affirmed the IJ’s decision and dismissed Tun’s
appeal, holding that the record provided examples to support
the IJ’s finding of inconsistencies.166 Upon review, the Eight
Circuit disagreed with the IJ’s and BIA’s conclusions. In doing
so, the court considered the IJ’s exclusions of the expert’s
159
Tun, 485 F.3d at 1020.
Immigration judges are required to advise a litigant that “he or she will
have a reasonable opportunity to examine and object to the evidence against him or
her,” and “to present evidence in his or her own behalf.” 8 C.F.R. § 1240.10(a)(4) (2007).
161
Tun, 485 F.3d at 1020.
162
Id. at 1022. The Eighth Circuit quoted the improper translation in detail in
the opinion. Id. at 1022 n.2.
163
Id. at 1017.
164
Id. at 1024.
165
Id. at 1030-31.
166
Id. at 1025.
160
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495
reports and evaluated the alleged inconsistencies in Tun’s
testimony.
Regarding the testimony of the Burmese expert, the
court held the expert was undoubtedly qualified to report on
country conditions in Burma. Moreover, the court noted that
the presence of an author of a report and his availability
for cross-examination are not “absolute requirements” for
submission of the report in immigration proceedings.167 The
court found the IJ’s decision to “exclude the report of a facially
unobjectionable expert without any explanation as to why
cross-examination was needed” was “unfair and unsupportable.”168
The court similarly found that the second expert, a
physician, was clearly qualified to offer “critical corroborating
testimony.”169 As such, the court determined that the exclusion
of Dr. Frye’s report affected the outcome of the proceedings,
since the IJ “completely ignored the most valuable
corroborating evidence of [Tun’s] torture.”170 The court noted
that the IJ’s desire to conclude the hearing in time to allow the
court translator to “make a six o’clock flight” later that day
seemed to have substantial weight in the IJ’s decision to
exclude Dr. Frye’s testimony.171 Significant from an ethical
perspective, the court recognized that the IJ’s actions
suggested she “may not have acted as a neutral arbiter.”172
Lastly, the court was “troubled by the lack of
consideration given by the IJ and the Board” to the issue of
translation error, especially since all “indicia of erroneous
translation were present” in Tun’s case.173 The errors performed
by the IJ went beyond simply ignoring evidence of erroneous
translation. The IJ also improperly relied on the resulting
erroneous portions of the transcript to find that Tun lacked
credibility, and focused on “minutia in the effort to find
inconsistencies” in Tun’s testimony.174 Together, the court found
167
Id. at 1028.
Id. at 1028-29.
169
Id. at 1027.
170
Id. at 1028.
171
Id. at 1026.
172
Id. at 1027.
173
Id. at 1029-30.
174
Id. at 1030. The court noted that “we can have no confidence that the
answers relayed by the interpreter to the IJ and the attorneys accurately reflected
what [Tun] answered.” Id.
168
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these errors added to the “overall prejudice” against Tun.175
Accordingly, the court remanded the case with specific
instructions to the IJ to ensure adequate translation and to
consider specific evidence submitted by Tun.176
Tun v. Gonzales represents the substantive effects of a
biased judge in immigration proceedings. As the court noted,
the immigration judge’s combined errors were “sufficiently
pervasive that we must conclude they may have had an effect
on the outcome” of the case.177 Unlike other IJs reprimanded by
circuit courts, the immigration judge in Tun did not vocalize
her bias by yelling or speaking in an improper manner.178
Rather, the IJ’s bias against Tun took a more subtle form,
exemplified by her refusal to consider the adequacy of the
translation services provided to Tun during his hearing.
The IJ was certainly alerted to the translation problem.
But even with knowledge of potentially erroneous translation
occurring in her courtroom, the IJ took no action to ensure the
reliability of Tun’s translated testimony. Without the presence
of a native Burmese speaker in the courtroom, Tun may never
have known his words were not being properly conveyed to the
judge. Although Tun successfully convinced the Eighth Circuit
that the translation problem affected the outcome of his case, a
more disturbing question remains: why would an IJ fail to
ensure an applicant’s testimony is being properly translated?
Surely immigration judges are aware that federal law
requires proper translation in immigration hearings.179 Thus,
the problem was not the result of the IJ’s lack of knowledge.
Rather, the IJ’s refusal to ensure adequate translation services
to Tun suggests the presence of bias against an asylum
applicant. Essentially, the IJ’s actions indicated to Tun that his
own words were irrelevant; if she was not going to consider his
testimony anyway, why bother to translate his words
accurately? In this way, the IJ’s bias impacted her decision-
175
Tun, 485 F.3d at 1030.
Id. at 1031.
177
Id.
178
Immigration judges have been reprimanded for yelling at litigants, using
sarcastic language, and otherwise displaying blatantly inappropriate behavior on the
bench. See, e.g., Elias v. Gonzales, 490 F.3d 444, 452 (6th Cir. 2007); Wang v. Attorney
Gen. of the U.S., 423 F.3d 260, 269 (3d Cir. 2005).
179
Federal law requires that interpreters in a hearing before an IJ be “sworn
to interpret and translate accurately.” 8 C.F.R. § 1240.5 (2007). However, interpreters
in immigration courtrooms are “of mixed ability.” Ramji-Nogales et al., supra note 11,
at 383.
176
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497
making process and had a significant negative effect on Tun’s
case. Despite the difficulties inherent in identifying this type of
unethical conduct, this case represents the importance of
eliminating bias from the immigration bench.
2. The Incompetent Immigration Judge: Tadesse v.
Gonzales
In addition to biased conduct, judicial incompetence in
immigration courts is raising increased concerns in the circuit
courts. In July 2007, the Seventh Circuit reprimanded the
incompetent conduct of an immigration judge in Tadesse v.
Gonzales.180 Ejigu Tadesse was an Ethiopian citizen of half
Eritrean descent.181 After a cease-fire was declared ending the
war between Ethiopia and Eritrea, Tadesse tried to travel to
Ethiopia to learn what had happened to her immediate
family.182 She was detained at the airport by Ethiopian
policemen, who accused her of being an Eritrean spy due to her
ethnic heritage. Tadesse claimed the policemen severely beat
her and that two of the officers raped her. They then ordered
her to leave the country.183 Tadesse sought medical treatment
and stayed with a family friend for two months before leaving
Ethiopia. She eventually arrived in the United States and
sought asylum.
The immigration judge denied Tadesse’s application for
asylum, holding that she included fraudulent documents in her
application for asylum and finding Tadesse’s testimony
“implausible and inconsistent.”184 The BIA affirmed the IJ’s
decision and Tadesse sought relief in the circuit courts.
The IJ first concluded that Tadesse submitted
fraudulent documents as part of her asylum application.
During the merits hearing, the government submitted a report
concluding that Tadesse’s Ethiopian deportation order was
fraudulent.185 Tadesse objected on the grounds that she had not
been given an opportunity to study the report in advance of the
hearing.186 The IJ did not give Tadesse an opportunity to review
180
492 F.3d 905, 912 (7th Cir. 2007).
Id. at 906.
182
Id.
183
Id.
184
Id.
185
Id.
186
Id. at 907. Ms. Tadesse was represented before the IJ by attorney Nancy
Vizer, who provided additional insight into this case.
181
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the report, but promised to allow Tadesse to present her own
expert in rebuttal.187
At the next hearing, Tadesse offered an affidavit and
expert testimony of an “eminent scholar” of Ethiopian politics
and culture who had written extensively about Ethiopia.188
However, the IJ refused to accept the expert’s affidavit or
testimony because he was not “an expert as to the issuance of
documents.”189 In the first of a series of rebukes to the
immigration judge, the appellate court held the IJ’s rejection of
this evidence was “arbitrary” and “prejudicial,” because the
expert testimony was “directly on point [to the authenticity of
the deportation order] and went to the very heart of Tadesse’s
claim.”190
The IJ also discounted the evidence offered by Tadesse
in the affidavit of her torture counselor, reasoning that
“although [the counselor] is a ‘therapist’ she is not a
psychologist or psychiatrist.”191 However, the counselor’s
affidavit noted that she held a master’s degree in psychology
and expected to receive her Ph.D. in clinical psychology nine
months prior to the IJ’s date of decision. Thus, the “IJ’s
comment was therefore incorrect as well as inappropriate.”192
Regarding Tadesse’s post-torture symptoms, the IJ’s opinion
came to a conclusion that was “completely at odds with [the
counselor’s] affidavit.”193 Such discrepancies led the Seventh
Circuit to conclude that the IJ had not properly reviewed the
evidence, for the “IJ could not have carefully reviewed [the
counselor’s] findings and reached this conclusion.”194 The
appellate court’s frustration with the IJ’s inadequate judicial
performance was quite evident: the court complained that
“[t]his portion of the opinion, like so much else, is not
supported by cogent reasons and cannot stand.”195
Although the IJ further concluded that portions of
Tadesse’s testimony related to her return to Ethiopia and her
choice to seek asylum were “implausible,” the court reprimanded the IJ for such conclusions, which were “unsupported
187
188
189
190
191
192
193
194
195
Tadesse, 492 F.3d at 907.
Id. at 908.
Id.
Id. at 909.
Id. at 911.
Id.
Id.
Id.
Id.
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499
by substantial evidence.”196 The court ultimately determined
the IJ’s opinion was “riddled with systematic and obvious
errors.”197 As a result of the IJ’s erroneous opinion, the court
found that Tadesse did not receive a fair hearing in
immigration court and therefore granted Tadesse’s petition for
review and remanded her case.198
The IJ hearing Tadesse’s claim acted incompetently in
several ways. First, her failure to allow Tadesse to offer expert
evidence in rebuttal was legally improper, since “an IJ may
not bar whole chunks of material evidence favorable to
[Tadesse].”199 At a minimum judicial competence requires “legal
knowledge.”200 By failing to properly follow the law permitting
an applicant to present evidence on her own behalf, the IJ
displayed a lack of “legal knowledge” necessary to properly
decide this case.
Second, the IJ’s obvious failure to carefully review an
affidavit submitted by Tadesse is disturbing. Although judicial
competence requires “thoroughness” and “preparation,”201 the IJ
deciding Tadesse’s case did not adjudicate the case in a
thorough manner. Moreover, if immigration judges are not
reviewing evidence put forth by applicants, the competency and
integrity of the entire hearing is undermined.
Not surprisingly, given that the IJ did not properly
consider Tadesse’s written evidence, the IJ also inexplicably
refused to believe portions of Tadesse’s testimony. Certainly it
is within the discretion of an immigration judge to determine
whether an applicant is lying, but the circuit court found that
this IJ’s credibility determinations were unsupported by
substantial evidence—that is, she had no logical reason to
believe Tadesse was lying.
These issues point to a larger and inescapable ethical
conclusion: the immigration judge was either legally
incompetent, or was actively biased against Tadesse. Either of
these possibilities is contrary to the American concept of
justice. Even in the face of limited resources and time
constraints, a “neutral” arbiter should follow the rules of
196
Id. at 910.
Id. at 912.
198
Id.
199
Id. at 909; see also Boyanivskyy v. Gonzales, 450 F.3d 286, 294 (7th Cir.
2006) (finding IJ’s exclusion of asylum applicant’s corroboration witnesses to be
prejudicial error); Zolotukhin v. Gonzales, 417 F.3d 1073, 1077 (9th Cir. 2005) (same).
200
ABA JUDICIAL CODE, supra note 93, Rule 2.5, cmt. [1].
201
Id.
197
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evidence and should be reasonably prepared for a hearing.
Without the assurance of unbiased and competent behavior on
the bench, the immigration system cannot reasonably promise
litigants they will receive a fair hearing. In this way, active
bias or legal incompetence on the part of immigration judges
skews the system itself; if an immigrant’s claim is ultimately
decided through an unfair proceeding, the reliability of the
entire adjudicatory process is threatened. In light of these farreaching consequences, evidence showing judicial bias and
incompetence raises the next question: what are the causes of
unethical conduct on the immigration bench?
IV.
CAUSES AND PENDING SOLUTIONS
A.
Causes of Unethical Conduct
Several potential causes of unethical behavior on the
part of immigration judges emerge through analysis of recent
cases. One reason, discussed in Part III.C, supra, is the difficult
and unique nature of immigration cases. Another contributing
factor—analyzed often by scholars and practitioners—is the
lack of time and resources available to immigration judges.202
Immigration judges are certainly overworked; in 2006,
the nation’s 215 immigration judges completed a total of
365,851 cases.203 Each judge must therefore adjudicate 1,700
cases a year, or nearly seven cases each business day, to stay
current with her docket.204 Although Second Circuit Chief
Judge Walker urged Congress to double the existing number of
immigration judges, Congress has yet to do so.205
Without the ability to take time to consider each case,
immigration judges are bound to make mistakes—often serious
mistakes with critical implications for the immigrants
appearing before them.206 A judge without the time or resources
202
Alexander, supra note 8, at 19-20; Melloy, supra note 119, at 666-67;
203
2006 YEARBOOK, supra note 68, at B2; Alexander, supra note 8, at 19.
204
The former President of the National Association of Immigration Judges,
Denise Slavin, reported in 2005 that she had 1,000 cases on her docket at one time.
Liptak, supra note 8; see also Alexander, supra note 8, at 19-20. Immigration judges in
busy districts must manage disproportionately larger caseloads; “while the average
immigration judge hears four cases a day, immigration judges on the Texas border hear
at least ten.” Melloy, supra note 119, at 666.
205
Walker Statement, supra note 73.
206
See Alexander, supra note 8, at 19 (noting that IJs “simply do not have
enough time to do their jobs well”).
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501
to adequately review changes in the law, or to properly
consider fact-intensive cases, may slip into a pattern of errors.
In this way, an overworked judge can quickly become an
incompetent judge.207 For example, Tadesse’s IJ may have
failed to adequately read Tadesse’s affidavit due to time
constraints; Tadesse’s case was likely only one of many merits
hearings heard by the IJ that day. Also, an immigration judge
feeling pressure to complete a large caseload may lose the
ability to recognize where personal bias enters the decisionmaking process.
However, even if the reasons for bias or incompetence
on the part of immigration judges can be understood in the
context of difficult cases and understaffed courts, such behavior
violates the norms of judicial ethics. Judicial neutrality and
competence must be prioritized over expedient resolution of
cases. As the Seventh Circuit noted in 2004, litigants seeking
to remain in the United States “should not bear the entire
burden of adjudicative inadequacy at the administrative
level.”208 Fortunately, the government now recognizes the
importance of ensuring ethical conduct in immigration courts.
B.
The Response of Attorney General Gonzales: The EOIR
Codes of Conduct
The growing cry for reform—from immigration
practitioners, circuit court judges, and immigration judges
themselves209—finally reached the ears of Attorney General
Alberto Gonzales. In January 2006, Gonzales announced that
he received reports of conduct on the part of immigration
judges which “can aptly be described as intemperate or even
207
Immigration judges are under extreme pressure to complete cases
expeditiously, to the point where some Assistant Chief Immigration Judges actually
visit IJs in person to encourage them to move cases more quickly. Marks Interview,
supra note 66. In this type of environment, judges are “less inclined to sit and listen to
a case, or to give it the time it needs.” Former IJ Interview, supra note 28.
208
Guchshenkov v. Ashcroft, 366 F.3d 554, 560 (7th Cir. 2004) (“[W]e have
never heard it argued that busy judges should be excused from having to deliver
reasoned judgments because they are too busy to think.”); see also Iao v. Gonzales, 400
F.3d 530, 535 (7th Cir. 2005) (“[W]e are not authorized to affirm unreasoned decisions
even when we understand why they are unreasoned.”).
209
See generally Liptak, supra note 8.
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abusive.”210 Following a “comprehensive review,” Gonzales
proposed a set of reforms in August 2006.211
These “key reforms” included performance evaluations
for immigration judges, an immigration law exam, sanctioning
powers allowing immigration judges to sanction litigants and
counsel for “false statements, frivolous behavior, and other
gross misconduct,”212 increased resources, and technological
improvements.213 On the issue of judicial ethics, Gonzales
promised to draft a new code of conduct for immigration judges
and BIA members, impose “mechanisms to detect poor conduct
and quality by immigration judges and Board members,” and
improve complaint procedures for inappropriate conduct by
adjudicators.214
Gonzales’s reform measures were initially hailed as a
large step in the right direction.215 However, it soon became
apparent that implementation of these reforms would not be an
expedited or simple task. More than a year after Attorney
General promised reforms, immigration judges had not seen
any “changes on the ground.”216
It took nearly a year after the reforms were announced
for EOIR to release the promised “Codes of Conduct of the
Immigration Judges and Board Members” (“EOIR Codes”).217
210
Memorandum from Attorney General Alberto Gonzales to Immigration
Judges (Jan. 9, 2006), available at http://www.humanrightsfirst.info/pdf/06202-asy-agmemo-ijs.pdf.
211
Press Release, U.S. Dep’t of Justice, Attorney General Alberto R. Gonzales
Outlines Reforms for Immigration Courts and Board of Immigration Appeals (Aug. 9,
2006) [hereinafter DOJ Press Release], available at http://www.usdoj.gov/opa/pr/2006/
August/06_ag_520.html.
212
Allowing IJs to sanction litigants could enable these judges to control
potentially unethical behavior on the part of immigration lawyers in their courtrooms.
However, given the persistence of unethical behavior on the part of IJs themselves, this
particular reform idea will not remedy the ethical crisis on the bench.
213
Id.
214
Id.
215
Melloy, supra note 119, at 667 n.228.
216
Pamela A. Maclean, Mixed Signals from the DOJ Immigration Bench
Reforms: Implemented, or Not?, NAT’L L.J., Apr. 16, 2007, at 1; see also NAIJ Letter,
supra note 113. (“[As of February 2008], there has been no implementation [of] what
we consider to be the two key measures [in Attorney General Gonzales’s reform
proposal] to improve the Immigration Court system. Indeed, we have lost ground.”
(endnote omitted)).
217
U.S. Dep’t of Justice, Codes of Conduct for Immigration Judges and Board
Members, 72 Fed. Reg. 35,510 (proposed June 28, 2007) [hereinafter EOIR CODES]. The
Codes were released for public comment from June 28, 2007 to July 30, 2007; final
publication is pending. There is a separate set of codes for IJs and for members of the
BIA, but their provisions are substantially similar and the references herein generally
apply to both.
2008]
503
The EOIR Codes, proposed in June 2007, are intended to
supplement the personnel disciplinary rules, ethics rules, and
management policies of EOIR and the DOJ, and are designed
to “preserve the integrity and professionalism of the
immigration court system” and the BIA.218 EOIR has not
announced when the Codes are expected to be published in
final form and the process of editing the Codes is “internal” to
the DOJ. 219
The proposed EOIR Codes are similar to those already
in place for other judges. For example, like the recently revised
ABA Model Code of Judicial Conduct, the EOIR Codes require
IJs/BIA members to avoid impropriety and the appearance of
impropriety.220 The Codes require an IJ/BIA member to comply
with the codes of professional responsibility where the IJ/BIA
member is a member of the bar, as well as the state in which
the IJ/BIA member performs his/her duties.221 This rule could
provide a significant basis for disciplinary procedures against
IJs or BIA members who fail to comply with ethical guidelines
as attorneys.
The EOIR Codes demonstrate a renewed emphasis on
professionalism for IJs and BIA members, perhaps acknowledging the effects of inappropriate judicial conduct on the
perceived integrity of the immigration structure. As the
Commentary to the EOIR Codes recognizes, “an immigration
judge who manifests bias or engages in unprofessional conduct
in any manner during a proceeding may impair the fairness of
the proceeding and may bring into question the impartiality of
the immigration court system.”222 The EOIR Codes require
immigration judges and BIA members to “act in a professional
manner toward the parties and their representatives before the
court, and toward others with whom the immigration judge
deals in an official capacity.”223 Like the ABA Code of Judicial
Conduct, the EOIR Codes also require that IJs/BIA members
act “impartially” and avoid any actions that “in the judgment of
a reasonable person, would create the appearance that he or
218
Id. pmbl. (capitalization removed).
Telephone Interview with official from EOIR Office of Legislative and
Public Affairs (Aug. 18, 2007).
220
EOIR CODES, supra note 217, pmbl.; ABA JUDICIAL CODE, supra note 93,
Rule 1.2.
221
EOIR CODES, supra note 217, Canon III.
222
Id. Commentary.
223
Id. Canon X.
219
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she is violating the law or applicable ethical standards.”224 IJs
and BIA members must therefore “refrain from any conduct,
including but not limited to financial and business dealings,
that tends to reflect adversely on impartiality, demeans the
judicial office, interferes with the proper performance of
judicial duties, or exploits the immigration judge’s official
position.”225
Furthermore, the EOIR Codes address the issue of bias
and incompetence in the courtroom. Like other types of judges,
immigration judges and BIA members must adhere to the law
and “maintain professional competence in it.”226 In addition to
this basic requirement of competence, EOIR now requires that
an immigration judge “shall be patient, dignified, and
courteous to litigants, witnesses, lawyers, and others with
whom the judge deals in his or her official capacity.”227
Although this point should be a matter of simple professional
courtesy, the behavior of the IJs hearing Tun’s and Tadesse’s
cases sadly demonstrates the necessity for this rule.
On the issue of bias, both immigration judges and BIA
members are informed they “shall not, in the performance of
official duties, by words or conduct, manifest bias or
prejudice.”228 This critical provision is clearly a response to
concerns of biased and prejudiced behavior by IJs and BIA
members against litigants. The burden lies on the judges
themselves, who must be “alert to avoid behavior, to include
inappropriate demeanor, that may be perceived as
prejudicial.”229 While these statements should be heralded as
long overdue and promising developments for ethical
standards, they also highlight the limitations of such Codes of
Conduct.
The EOIR Codes fail to adequately address the unique
nature of immigration court. The Codes do not acknowledge the
language challenges, credibility issues, and fact-intensive
inquiries conducted by immigration judges. One immigration
judge, speaking off the record, noted that the Codes do not
provide any real guidance, since they do not contain anything
224
Id. Canons VI, VII.
Id. Canon XI.
226
Id. Canon V.
227
Id. Canon IX.
228
Id. (emphasis added). For a discussion of the limitations of this provision,
see infra Part IV.C.1.
229
Id. Commentary (emphasis added).
225
2008]
505
“different from what all of us [should] try to do in the first
place.”230
Specific shortcomings undermine the ability of the EOIR
Codes to effectively remedy unethical conduct on the part of
immigration judges. For example, the Codes lack both
specificity and effective enforcement mechanisms. At this time,
neither existing ethical guidelines nor EOIR’s complaint
procedures are adequately protecting litigants from unethical
judicial behavior. Without a more effective method of
monitoring and enforcement, the newly created EOIR Codes of
Conduct are merely words on paper.
C.
Weakness in the EOIR Codes of Conduct
1. Lack of Specificity
Unlike the ABA Model Code of Judicial Conduct, the
current proposed EOIR Codes fail to define key terms
necessary for proper implementation. The most alarming
example is the EOIR Codes’ failure to define the terms “bias
and prejudice.” The drafters did provide an explanatory test to
determine whether an “appearance of impropriety” exists, but
offered no guidance on what types of behavior may “manifest
bias” or “impair [the proceeding’s] fairness.”231
In contrast, recognizing that “[a]n independent, fair and
impartial judiciary is indispensable to our system of justice,”232
Rule 2.3 of the 2007 ABA Model Code of Judicial Conduct
specifically addresses “Bias, Prejudice, and Harassment.”
Contrary to the EOIR Codes, the Model Code specifically
outlines prohibited behavior.233 For example, Rule 2.3(B), the
black letter portion of the Code, provides a judge shall not
manifest bias or prejudice, by words or conduct, on the basis of
230
Telephone Interview with anonymous IJ (July 31, 2007).
According to the EOIR Codes, the test to determine the appearance of
impropriety is “whether the conduct would create in the mind of a reasonable person
with knowledge of the relevant facts the belief that the immigration judge’s ability to
carry out adjudicatory responsibilities with integrity, impartiality, and competence is
impaired.” EOIR Codes, supra note 217, Commentary. The AILA agrees that the EOIR
Codes lack specific guidance. See Comments to Proposed Codes of Conduct for
Immigration Judges and BIA Members, July 30, 2007, available at
http://www.aila.org/content/default.aspx?docid=23005. The National Association of
Immigration Judges also took the position that the Codes lack relevant guidance for
IJs and drafted a more thorough “Code of Conduct” for EOIR’s consideration, closely
based on the ABA Model Code of Judicial Conduct. Marks Interview, supra note 66.
232
ABA JUDICIAL CODE, supra note 93, pmbl.
233
See, e.g., id. Rule 2.3.
231
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factors “including but not limited to” race, sex, gender, religion,
national origin, ethnicity, disability, age, sexual orientation,
marital status, socioeconomic status, or political affiliation.234
Likewise, the Codes of Conduct for United States Judges
impose the responsibility to “avoid comment or behavior that
can reasonably be interpreted as manifesting prejudice or
bias…on the basis of personal characteristics like race, sex,
religion, or national origin.”235
Moreover, the Comment to ABA Model Rule 2.3 is even
more helpful. Comment 2 to Rule 2.3 presents “examples of
manifestation of bias or prejudice,” including but not limited to
“epithets; slurs; demeaning nicknames; negative stereotyping;
attempted humor based upon stereotypes; threatening,
intimidating, or hostile acts; suggestions of connections
between race, ethnicity, or nationality and crime; and
irrelevant references to personal characteristics.”236 In addition,
the Comment notes that “[e]ven facial expressions and body
language can convey to parties and lawyers in the proceeding,
jurors, the media, and others an appearance of bias and
prejudice.”237 Accordingly, the Model Code requires that a judge
“must avoid conduct that may reasonably be perceived as
prejudiced or biased.”238
The specific examples were added to the 2007 Model
Code after witnesses urged the ABA Commission to provide
illustrations of bias, and “to better inform judges of what bias
entails and what some of the most common bias-related
problems are.”239 By enumerating factors and offering examples
of biased behavior, these codes of conduct provide greater
guidance for judges to “check themselves” for hidden bias or
prejudice in the courtroom.
Based on the recently reported behavior of immigration
judges, the ABA “examples of manifestation of bias and
prejudice” are common occurrences in immigration courts.240
Yet the EOIR Codes of Conduct fail to list even one factor or
example of manifested bias or prejudice. This simple omission
234
ABA JUDICIAL CODE, supra note 93, Rule 2.3(B).
Id. Rule 2.3, cmt. 2.
236
Id.
237
Id.
238
Id.
239
Id. The Code of Conduct for United States Judges would benefit from
similar enumerated examples.
240
See supra note 149.
235
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507
has broad ramifications, for every individual has a different
view of what the term “bias” can entail.
Similarly, the EOIR Codes order immigration judges
and BIA members to “maintain professional competence” in the
law.241 However, the EOIR Codes fail to specifically define the
term “competence” for immigration judges. As noted above, the
ABA defines judicial competence as requiring “the legal
knowledge, skill, thoroughness, and preparation reasonably
necessary to perform a judge’s responsibilities of judicial
office.”242 As an aspirational set of rules, the ABA definition
could easily be applied to immigration judges and BIA
members.
But competence might have a broader meaning for
immigration judges and BIA members, who must stay abreast
of the constantly changing world of immigration law and face
unique challenges in their daily work. Certainly, knowledge
and skills in immigration law are absolutely necessary for
immigration judges; in response to reports of judicial
incompetence, the Attorney General is implementing
“immigration law exams” for judges appointed after December
2006.243 But the Attorney General also will require
“performance evaluations” of immigration judges, which will
include an assessment as to whether new appointees “possess
the appropriate judicial temperament . . . for the job.”244 This
assessment suggests that “temperament” is a significant
component of competence in the Attorney General’s view.
Given these developments, EOIR should utilize its
proposed Codes of Conduct as an opportunity to expand upon
the ABA definition of judicial competence. For example, judicial
competence should include the concept of “proper judicial
temperament,” in addition to knowledge of applicable law and
preparation for individual cases. The term “competence” could
also be clarified by requiring all immigration judges to pass a
substantive immigration law exam annually as part of formal
training; such a requirement would send a clear signal to
immigration judges that judicial competence requires more
than merely expediting completion of cases. In short, the terms
241
EOIR Codes, supra note 217, Canon V.
ABA JUDICIAL CODE, supra note 93, Rule 2.5, cmt. [1].
243
DOJ Press Release, supra note 211. Because the exams will apply only to
judges appointed after December 31, 2006, existing judges are apparently exempt from
the immigration law exam. Id.
244
Id.
242
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“bias” and “competence” must be more clearly defined,
particularly in an ethical scheme asking judges to regulate
their own behavior.
2. Lack of Enforcement Mechanism
The efficacy of the EOIR Codes of Conduct is further
limited by its reliance on self-regulation of ethical conduct.
How can an immigration judge or BIA member, who may have
years of ingrained frustrations resulting in biases against
litigants in immigration courts, “be alert to avoid” her own
behavior or accustomed demeanor?245 In light of the egregious
behaviors outlined in the cases and statistics above, an ethical
scheme relying on judges to identify their own incompetence, or
minimize their own biases, is problematic.246 Thus, another
limitation of the EOIR Codes, and arguably the most
damaging, is the lack of an effective external enforcement
mechanism.
Theoretically, the EOIR Codes may be enforced by the
current procedure for complaints of misconduct, for the Codes
provide that any disciplinary action must come from within the
Department of Justice. The Commentary states, “This Code
does not create any rights or interests for any party outside of
the Department of Justice, nor may violations furnish the basis
for civil liability, injunctive relief or criminal prosecution.”247
This provision ostensibly places responsibility on the DOJ,
rather than third parties, to monitor and enforce the Codes.248
However, such a structure will likely be ineffective, for the
DOJ’s current disciplinary structure for IJs suffers from
several weaknesses.
245
EOIR Codes, supra note 217, Commentary.
See generally Randy Lee, The State of Self-Regulation of the Legal
Profession: Have We Locked the Fox in the Chicken Coop?, 11 WIDENER J. PUB. L. 69
(2002).
247
EOIR Codes, supra note 217, Commentary.
248
The EOIR Codes Commentary indicates that “[v]iolations of these canons
may serve as the basis for disciplinary action, but may not be used in any other
proceeding, and may not be used to challenge the rulings of an Immigration Judge.”
EOIR Codes, supra note 217, Commentary. The EOIR Codes should instead provide an
“extra layer” of oversight to prohibit conduct that might not affect the substantive
outcome of the proceeding, but is nonetheless inappropriate and detrimental to the
integrity of the immigration system.
246
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509
a. Current Disciplinary Procedures Are
Inadequate to Ensure Compliance
with Ethical Codes
The current disciplinary structure for immigration
judges does not adequately enforce ethical conduct on the
bench. On its face, the disciplinary process is limited by the
lack of external review. Complaints of misconduct are directed
to the Assistant Chief Immigration Judge who holds
supervisory authority over the judge in question.249 Unless
referral to the Office of Professional Responsibility is deemed
warranted,250 the complaint stays with the ACIJ; while the
Office of the Chief Immigration Judge and the EOIR Director
are made aware of the complaint, it is the ACIJ who is
responsible for handling the complaint.
If the supervisor determines the complaint lacks merit,
the process ends there. Unfortunately, as members of the
immigration court system, ACIJs suffer from the same working
pressures as IJs. Moreover, if the ACIJ has a strong working
relationship or is friendly with the IJ, the ACIJ may be less
likely to take disciplinary action. The individual filing a
complaint has no method of appeal, meaning the determination
of the ACIJ can effectively end the complaint process. The
OCIJ does not disclose whether action, if any, is taken against
an employee in response to a complaint.251
EOIR’s complaint process has been criticized as murky
and bureaucratic by immigration experts outside of EOIR.
Immigration practitioners complain about the “uncertainty as
to what actions OCIJ takes on such complaints” as well as
“what types of complaints are likely to be of concern to OCIJ.”252
As a result, some practitioners believe that it does “no good to
complain because nothing ever happens.”253 The issues of
underreporting and the determination of whether immigrants
and practitioners are discouraged from filing complaints
against IJs are worthy of further study.
Concern also exists that the disciplinary procedure for
immigration judges is used for political purposes, rather than
249
See supra Part II.D.
See discussion supra note 85.
251
EOIR/AILA Liaison Meeting Agenda Questions, March 7, 2002, Question
4, Response, available at http://www.usdoj.gov/eoir/statspub/eoiraila0203.htm.
252
Id. Question 4.
253
Id.
250
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used to remedy actual misconduct. EOIR holds the power to
“reassign” immigration judges to different job titles or job
duties as a “matter of management discretion.”254 Reassignment
in such cases is not deemed “disciplinary in nature if there is
no loss of pay or grade”—even if a judge is removed from the
bench.255 Similarly, the Attorney General may also reassign or
remove immigration judges at any time.256 Given recent
examples of political removals, such as Ashcroft’s removal of
BIA members who were more likely to favor immigrants,
immigration judges are left with an “emerging fear that ruling
against the government in a deportation case can be hazardous
to one’s job.”257
The Attorney General recently attempted to implement
another layer of ethical review with the creation of a new
position: Assistant Chief Immigration Judge for Conduct and
Professionalism.258 As noted, the person holding this position is
essentially an ACIJ serving an advisory role in issues of
ethics.259 The implementation of a position focused on conduct
and professionalism could represent a promising step in the
area of ethical monitoring, as it indicates EOIR’s renewed
dedication to ensuring ethical behavior on the part of
immigration judges. However, because the ACIJ for Conduct
and Professionalism appears to be merely an advisory
position,260 ethical monitoring in EOIR would benefit from the
implementation of a multi-member panel (in the form of the
254
Legomsky, supra note 52, at 373.
Id. at 373-74.
256
Id.
257
Id. For this reason, many IJs, scholars, and advocates are calling for the
removal of the immigration courts from the Department of Justice. See Legomsky,
supra note 52, at 373 n.14 (citing Nat’l Ass’n of Immigration Judges unpublished
position paper calling for an independent immigration court), 404 (“In view of the
events of 2002 and 2003, the adjudicators can never again feel confident that they can
safely rule against the Department . . . .”); see also Ramji-Nogales et al., supra note 11,
at 386-87 (proposing independence for immigration courts from the Department of
Justice).
258
AILA-EOIR Liaison Agenda, supra note 82, at 2-3. Notably, there is no
description of this position on EOIR’s website.
259
See supra note 82.
260
AILA-EOIR Liaison Agenda, supra note 82, at 3; see also discussion supra
note 82. The author attempted to clarify the role of the ACIJ for Conduct and
Professionalism in a telephone interview with an official from EOIR Office of
Legislative and Public Affairs. EOIR Office of Legislative and Public Affairs, supra
note 219. The official confirmed the existence of the ACIJ for Conduct and
Professionalism, which is listed on EOIR’s website and referenced in the April 11
AILA-EOIR Liaison Agenda notes, but refused to elaborate on the actual role or duties
of this ACIJ because the position is “new.” Id.
255
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511
Ethics Review Board discussed in Part V.C and D, infra) to
actually handle the complaints.
The current disciplinary structure is therefore
unsatisfactory on several levels. Because it lacks both
transparency and methods for appeal, the structure is not
sufficient to monitor ethical behavior on the part of IJs.
Immigration judges working in fear of losing their jobs if they
rule against the government will be less inclined to focus on
ethics, and more inclined to focus on job security. Several
additional reforms are necessary to monitor and ensure ethical
judicial behavior in immigration courts.
V.
RECOMMENDATIONS
The crisis on the American immigration bench is
evidenced by appellate court opinions condemning the conduct
of immigration judges, studies demonstrating statistical
inconsistencies in immigration decisions, and recurring stories
of injustice reported by individual litigants.261 From an ethical
perspective, this crisis has serious repercussions. In particular,
biased and incompetent conduct on the part of immigration
judges negatively impacts the lives of individuals seeking to
remain in the United States. A larger issue is also at hand:
without significant ethical reforms to ensure proper judicial
conduct, the entire system of immigration adjudication is
flawed.
Together with circuit court judges, immigration judges
are calling for increased resources to assist with their heavy
workload.262 Legal scholars have also recommended specific
changes designed to improve the structure of the immigration
court system. For example, Sydenham Alexander suggested a
campaign to publicly identify the “worst” IJs in order to remove
them from the bench.263 Alexander’s campaign hopes to “change
substantially the system that those judges will leave behind.”264
In addition, Professors Ramji-Nogales, Schoenholtz, and
Schrag presented numerous recommendations focused on
structural change. These suggestions included (1) bringing
immigration adjudicators together to discuss the vast
inconsistencies in asylum outcomes, (2) increased training for
261
262
263
264
See sources cited supra notes 8, 11, 149.
See Maclean, supra note 216.
Id. at 46.
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immigration judges with a focus on judicial temperament, (3)
more rigorous hiring standards for EOIR, (4) more resources
for immigration courts, including an increase in the number of
immigration judges, and (5) appointed counsel provided by the
government for any indigent asylum applicant litigating in
immigration court.265 Each of these ideas has merit, and this
author supports these scholars in calling for structural reform.
Recognizing the urgency, Attorney General Gonzales
promised reforms to address judicial misconduct in immigration courts. Many of the Attorney General’s initiatives are
“internal,”266 and it is possible that significant changes are
being implemented without publicity. Observers should closely
watch EOIR and the DOJ to guarantee completion of these
improvements.
However, even if these changes are successfully
implemented, additional reforms will remain necessary to
resolve the crisis on the immigration bench. Because the
focus of this article is judicial ethics, the reforms proposed
herein are intended to specifically diminish judicial bias and
incompetence. First, EOIR should recognize the ethical duty of
overworked immigration judges to refrain from taking on new
cases. In addition, EOIR should improve ethics training and
create an Ethics Review Board to work in conjunction with the
structural reforms discussed above. All three proposals would
be cost effective and fairly simple to implement, in hopes that
Justice Department officials will use them to continue
reorganizing the structure of EOIR.267
A.
Ethical Obligation to Avoid Case Overloads
The EOIR Codes of Conduct could serve as a means of
support for immigration judges whose competence on the bench
is negatively impacted by excessive workloads. The ABA
recently declared that lawyers representing indigent criminal
cases have an ethical obligation to refuse accepting new clients
if an excessive caseload “prevents a lawyer from providing
265
EOIR Office of Legislative and Public Affairs, supra note 219; see also
Authorities Delegated to the Director, supra note 38, 72 Fed. Reg. at 53,674 (stating
that the Attorney General’s directives “are being implemented through internal
management changes within EOIR”).
267
Some of these reform suggestions were submitted to the DOJ as public
comments for the proposed Codes of Conduct on July 27, 2007.
266
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513
competent and diligent representation to existing clients.”268
Admittedly, this ABA Code provision is intended to apply to
lawyers in advocacy positions, a role very different from the job
of a neutral arbiter. However, the EOIR Codes of Conduct
indicated EOIR’s intent to hold immigration judges accountable
under the same standards of conduct as all attorneys in their
state of license or in the state in which they sit on the bench,
despite the fact that immigration judges and attorneys serve
very different roles in the adversarial system.269
If immigration judges are to be held to the same
standards of conduct as attorneys, the EOIR Codes of Conduct
should draw an analogy from the ABA rules: the EOIR Codes
should provide that an overworked immigration judge without
the time or resources necessary to decide cases in a thorough
and competent manner has an ethical obligation to avoid
taking on new cases.
This provision would certainly be controversial in light
of political and practical pressure to decide immigration cases
expediently. Indeed, such action might require organization on
the part of immigration judges themselves, much like public
defenders going on strike to highlight their lack of resources.270
If immigration judges refused to take more cases than they
could fairly and adequately handle, their action would have two
immediate effects: it would signal to the federal government
that the problem of inadequate judicial resources is closely
aligned with judicial competence, and it would empower
immigration judges to publicly value ethical decision-making.271
In this way, the proposed EOIR Codes of Conduct could
potentially serve as catalysts inspiring further ethical reform.
268
ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 06-441 (2006);
see also ABA MODEL RULES OF PROF’L CONDUCT Rule 1.3 cmt. 2 (2002) (“A lawyer’s
workload must be controlled so that each matter can be handled competently.”).
269
EOIR CODES, supra note 217, Canon III.
270
See Brandon Buskey, When Public Defenders Strike: Exploring How Public
Defenders Can Utilize the Lessons of Public Choice Theory to Become Effective Political
Actors, 1 HARV. L. & POL’Y REV. 533 (2007), available at http://www.hlrponline.com/
vol1no2/buskey.pdf.
271
The potential effectiveness of this reform strategy is worthy of further
consideration. Note that IJs employing this technique would need to ensure their
actions are interpreted as a justified cry for reform, rather than as an outright
rebellion jeopardizing their job security.
514
B.
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Improved Ethics Training
As it revises its code of conduct, EOIR must clarify the
applicable ethical rules for immigration judges. It is simply
unrealistic to expect an overworked group of judges to
continuously follow changes in multiple sets of rules and
guidelines. Strictly defining applicable ethical rules will enable
judges to follow a clearer standard of conduct.
This unified standard should be enhanced by improving
training for immigration judges and BIA members on ethicsrelated issues. Budgetary concerns have limited training
conferences in recent years, including 2008,272 but the crisis in
immigration courts demonstrates a renewed need for formal
ethics training.
At a minimum, immigration judges are currently
required to attend one hour of training per year on ethics
issues.273 EOIR recognized the need for additional training for
immigration judges, and indicated its intent to provide
“extended training” for immigration judges on “substantive
legal issues” and “professionalism.”274 The EOIR Director’s
job responsibilities now include providing “comprehensive,
continuing training” for immigration judges to “promote the
quality and consistency of adjudications.”275
Assuming that a more specific version of the Codes of
Conduct is in place, immigration judges should be trained to
appreciate the importance of each of these codes. In addition to
the training on judicial temperament suggested by Professors
Ramji-Nogales, Schoenholtz, and Schrag,276 IJs should be
reminded that neutrality, competence, and general adherence
to judicial ethics rules are critical parts of their jobs on the
bench.
272
See discussion supra notes 112, 113. Immigration judges were “shocked
and disappointed” to learn that the 2008 training had been cancelled and warned that
“the results of this [cancellation], without some accommodations, would be disastrous.”
NAIJ Letter, supra note 113.
273
5 C.F.R. § 2638.704 (2007).
274
AILA-EOIR Liaison Agenda, supra note 82, at 2.
275
Authorities Delegated to the Director, supra note 38, at 53,677 (codified at
8 C.F.R. § 1003.0(b)(1)(vii) (2007)). Notably, the cancellation of the 2008 training
conference for immigration judges “is in direct contravention to the measure of
improved training announced by the Attorney General.” NAIJ Letter, supra note 113.
276
See Ramji-Nogales et al., supra note 11, at 382 (recommending training for
IJs to include “counseling on impartiality, avoiding stereotyping, and not taking
personally the misconduct that the judges sometimes encounter from people who are
desperate to remain in the United States”).
2008]
515
Training need not only occur on the national level. Local
offices should offer seminars on judicial ethics, much like
continuing legal education training for practicing attorneys. In
addition to the value for individual judges, the DOJ would gain
valuable public relations benefits. In short, the implementation
of improved formal ethics trainings would be a low-cost, but
highly advantageous, reform for immigration judges.
C.
Creation of an EOIR Ethics Review Board
In 2006, as part of his ongoing structural reforms in
immigration courts, the Attorney General announced he would
address the failings of the IJ disciplinary process by implementing “improved complaint procedures for inappropriate
conduct by adjudicators.”277 To adequately repair this process,
the Attorney General should create an “Ethics Review Board”
(“ERB”) to supervise the courtroom conduct of immigration
judges. Using the clarified EOIR Codes of Conduct as a
governing standard, the Ethics Review Board could hear
complaints of inappropriate behavior brought by litigants,
practitioners, circuit court judges, or members of the public.
The ERB could then act to discipline judges for unethical
behavior, with the understanding that a behavioral complaint
will not impact the substantive outcome of an immigration
judge’s decision.278
D.
Structure of the Ethics Review Board
The ERB structure would consist of a panel of
reviewers, with a system for appeals if either party disagrees
with the ERB determination. The ERB structure would also
provide for public accountability in the form of public reports.
Useful analogies for this structure can be found in the process
for adjudicating disciplinary complaints against federal judges
and California state judges.
277
DOJ Press Release, supra note 211. The Attorney General delegated this
duty to the EOIR Director. See Authorities Delegated to Director, supra note 38, at
53,677 (to be codified at 8 C.F.R. Part 1003.0 (b)(viii)).
278
The proper avenue for review of inappropriate behavior that substantially
affects the outcome of the case is a legal appeal to the circuit courts. The ERB focus
will be inappropriate judicial conduct unrelated to an applicant’s substantive claim.
Similarly, the disciplinary structure for federal judges provides for dismissal if a
complaint is “directly related to the merits of a decision or procedural ruling.” 28 U.S.C.
§ 352 (b)(1)(A)(ii) (2006).
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Federal judges, state judges and administrative law
judges differ from immigration judges in notable ways,
including the procedural differences in the appointment
processes as discussed in Part II.B, supra. In addition, unlike
judges working within the Judicial Branch, immigration judges
operate under the Executive Branch of government. Despite
these differences, federal judges, state judges, administrative
law judges, and immigration judges all assume the role of a
“neutral arbiter” in adjudicatory proceedings. Thus, specific
elements of the federal and state judicial disciplinary structure
could serve as effective models for the disciplinary structure for
immigration judges.279
1. Analogy: Disciplinary Structure for the Federal
Judiciary
Federal judges must comply with the Code of Conduct
for United States judges. The ethical standards embodied in
the Code, which are intended to have a “preventive” effect, offer
affirmative guidelines for appropriate judicial behavior.280
Although the drafters of the Code did not intend that
disciplinary action would be appropriate for every violation of
the Code’s provisions, this Code “may provide standards of
conduct for application” in disciplinary proceedings against
federal judges.281
The procedure to file complaints against federal judges
for misconduct is governed by the “Judicial Councils Reform
and Judicial Conduct and Disability Act.”282 Elements of this
procedure serve as excellent models for a similar system for
279
An administrative law judge may be disciplined by his or her employing
agency only for “good cause.” 5 U.S.C. § 7521(a) (1989). To discipline an ALJ, the
employing agency must initiate formal proceedings with an independent agency, the
Merit Systems Protections Board. Id.
280
In re Charge of Judicial Misconduct, 62 F.3d 320, 322 (9th Cir. 1995).
281
CODE FOR U.S. JUDGES, supra note 108, Canon 1, Commentary. The
standard for disciplinary procedures under the Act is whether a judge’s conduct was
“prejudicial to the effective and expeditious administration of the business of the
courts,” or whether a “federal judge is unable to discharge all the duties of office by
reason of a mental or physical disability.” 28 U.S.C. § 351(a) (2007). This disciplinary
structure could be strengthened by specifically including violations of the Codes of
Conduct for United States Judges as a basis for discipline. However, extended analysis
of the disciplinary structure for the federal judiciary is beyond the scope of this article.
282
TERRY EASTLAND ET AL., ETHICS IN THE COURTS: POLICING BEHAVIOR IN
THE FEDERAL JUDICIARY 1 (National Legal Center for the Public Interest) (1990). Nine
years later, Congress enacted the “Ethics Reform Act,” which regulates the
extrajudicial conduct of judges. Id. The Act is now codified in Title 28 of the United
States Code.
2008]
517
immigration judges, particularly regarding the methods of
appeal for persons filing complaints and multi-member panels
of reviewers addressing complaints.
Under the Act, a person wishing to bring a charge
against a federal judge under this standard may file a
complaint with the clerk of the court of appeals, who then
reports the complaint to the chief judge of the circuit.283 The
initial responsibility to investigate complaints lies with the
chief judge, who must review all complaints and may conduct a
“limited inquiry.”284 After reviewing the complaint, the chief
judge may dismiss the complaint, resolve it informally, or
appoint a special committee to investigate the allegations.285
This procedure is similar to the current disciplinary
procedure for immigration judges, in which an ACIJ with
supervisory authority reviews and acts upon allegations of
misconduct. Unlike the current IJ procedure, however, the
disciplinary inquiry for federal judges does not end with a
single individual’s determination. Rather, if either party
disagrees with the chief judge’s resolution of a complaint,
review is available to the Judicial Council of the circuit.
The Judicial Council may then act in a number of ways,
including ordering additional investigation, dismissing the
complaint, ordering that no new cases be assigned to the
misbehaving judge, and censuring or reprimanding the judge
either publicly or privately.286 A party disagreeing with the
action taken by the Judicial Council has yet another layer of
appeal, for any party may petition the Judicial Conference of
the United States to hear the case.287 In addition, members of
the Judicial Council may themselves refer a complaint to the
283
28 U.S.C. § 351 (2000). This provision applies to circuit judges, district
judges, bankruptcy judges, and magistrate judges. Id. § 351(d). Congress mandated
that the Court of Federal Claims, the Court of International Trade, and the Court of
Appeals for the Federal Circuit establish similar procedures for the filing of complaints
“with respect to the conduct of any judge of such court and for the investigation and
resolution of such complaints.” 28 U.S.C. § 363 (2000).
284
28 U.S.C. § 352(a) (2000).
285
Id. §§ 352, 353.
286
28 U.S.C. § 354 (2000). Notably, § 354 details various actions which may be
taken by the Judicial Council, but imposes limits on the Judicial Council regarding
removals. Id. § 354(a)(3). The Judicial Council does not have the power to remove an
Article III judge from the bench. Id. § 354 (a)(3)(A).
287
Id. § 357.
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Judicial Conference of the United States if the case requires
further disciplinary action.288
Thus, a disciplinary complaint against a federal judge
may be subject to several layers of appeal. Congress’s clearly
organized procedures relating to the investigation of
misbehaving federal judges indicates its concern about judicial
ethics. In contrast to the ambiguity experienced by
complainants filing behavioral allegations against immigration
judges, complaints and investigative procedures for the federal
judiciary are well developed and opinions of Judicial Councils
are publicly available.289 Accordingly, the disciplinary process
for federal judges serves as a useful model to reform EOIR’s
complaint procedures.
2. Analogy: Disciplinary Process for California
State Judges
Article III judges enjoy life tenure, which places them in
a different situation than both state judges and immigration
judges. Thus, while certain components of the disciplinary
procedure for Article III judges should be applied to
immigration judges, the disposition of complaints against
judges should be handled differently. California’s judicial
disciplinary process adjudicates complaints against state
judges in a manner placing a premium on accountability, a
method which should be adopted by EOIR.
The State of California Commission on Judicial
Performance (“CJP”) receives complaints from “anyone”—
including litigants, lawyers, members of the public, other
judges, and court staff.290 Unlike the complaint process at
EOIR, every person who files a complaint with the CJP will
receive notification in writing of the CJP’s action on a
complaint.291 After the CJP investigates a complaint, “the
Commission has several options.”292 If the investigation
revealed no misconduct on the part of the judge, the CJP will
288
Id. § 354(b)(1). If the Judicial Council determines that a judge’s action may
constitute grounds for impeachment, or is not amenable to resolution by the Judicial
Council, the Council must refer the case to the Judicial Conference. Id. § 354(b)(2).
289
See, e.g., In re Charge of Judicial Misconduct, 62 F.2d 320 (9th Cir. 1995).
290
State of Cal. Comm’n on Judicial Performance, How to File a Complaint,
http://cjp.ca.gov/filingacomp.htm (last visited Jan. 22, 2008).
291
Id.
292
State of Cal. Comm’n on Judicial Performance, Action the Commission Can
Take, http://www.cjp.ca.gov/2001cases.htm (last visited Jan. 22, 2008).
2008]
519
close the case and notify the complainant of the dismissal.293 If
minor misconduct was discovered on the part of the judge, the
CJP could “issue an ‘advisory letter’ to the judge,” advising
caution or expressing disapproval of the conduct at issue.294 For
more serious misconduct, the CJP may issue a “private
admonishment,” which is designed “to bring problems to a
judge’s attention at an early stage in the hope that the
misconduct will not be repeated or escalate.”295 These
confidential proceedings are not released to the public.
For very serious misconduct, the California judicial
disciplinary process uses public disclosure to hold judges
accountable. Cases involving persistent and pervasive
misconduct may result in a “public admonishment,” or the
more serious “public censure.”296 Public admonishments and
public censures are both notifications describing the conduct
and the CJP’s findings, which are sent to the judge and also
made available to the press and the public.297 This system
emphasizes public accountability: since state judges are public
officials, the public has the right to know when judges are
misbehaving.
A similar public accountability system should be
instituted for immigration judges accused of serious
misconduct. Public admonishment or public censure for
immigration judges engaging in egregious unethical behavior
would add an effective layer of accountability to EOIR’s judicial
structure, particularly in light of renewed public attention on
judicial misconduct.
E.
Proposed Disciplinary Structure for Immigration Judges
The creation of an Ethics Review Board adopting
elements of the disciplinary process for federal judges and
California state judges would provide much-needed clarity to
EOIR’s disciplinary process. First, the standards of ethical
conduct for immigration judges should be simplified:
complaints should be based upon violations of revised and more
specific Codes of Conduct. Persons wishing to allege violations
293
Id.
Id.
295
Id.
296
Id.
297
Id. Judges have the right to ask the California Supreme Court “to review
an admonishment, censure, removal or involuntary retirement determination.” Id.
294
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of the Codes may file a complaint with the EOIR Ethics Review
Board. To remedy the concerns raised by allowing one person
with supervisory authority to review and dismiss a complaint,
the ERB should consist of a five to nine member panel. In this
way, enforcement of the Codes of Conduct would be the
responsibility of a third-party panel. A panel review with a
detached group of individuals is a more appropriate method of
handling complaints, since a “panel is less likely to make a
mistake than is a single [individual].”298
The members of the ERB would conduct an
investigation similar to the inquiry undertaken by a federal
chief judge in response to a complaint. Based on this inquiry,
following California’s model, the ERB could have several
options for disposition of the complaint. The ERB could (1)
dismiss the complaint, (2) resolve the complaint informally
through mediation or another form of alternative dispute
resolution, (3) take action on a complaint through an advisory
letter or private admonishment, or (4) reprimand an IJ for
serious misconduct through public admonishment or public
censure.
Regardless of the ERB’s determination, two factors
must be present. First, if either party disagrees with the ERB’s
resolution, appeal must be available. Like the petition for
review of a federal chief judge’s decision to the Judicial Council,
the ERB’s resolution should be appealable to the EOIR Office of
General Counsel. This process deliberately skips the current
evaluators of complaints against immigration judges (the ACIJ,
OCIJ, and EOIR Director), since their failure to adequately
enforce proper behavior on the immigration bench has
contributed to the current ethical crisis. The EOIR Office of
General Counsel may refer a complaint alleging misconduct to
the DOJ Office of Professional Responsibility or the Office of
the Inspector General. Alternatively, either party seeking a
final review should file an appeal to the Office of the Attorney
General, who holds ultimate responsibility for the actions of
immigration judges.
Second, to alleviate the uncertainty of the current
process for complainants, the ERB must create a written record
of its investigation and decision-making process. This detailed
record need not be made available to the public, but should be
298
Cruz, supra note 11, at 507.
2008]
521
accessible to the complaining party and the judge whose
conduct is in question.
If the ERB chooses to reprimand an IJ through public
admonishment or public censure, much like California’s
disciplinary system, the names of these judges should be
available on the EOIR website. In addition, a statistical report
regarding complaints of unethical misconduct against
immigration judges must be made public for accountability
purposes. This public report could take the form of California’s
CJP statistics, which compile the numbers of new complaints
considered by the CJP, investigations commenced, and
ultimate dispositions of cases.299 California also compiles
summaries of actions taken against state judges describing the
details of misconduct resulting in discipline.300 These annual
summaries are useful for judges concerned about avoiding
discipline for similar behavior. Privacy concerns could prevent
the full, detailed investigation record of the ERB from being
publicly released. At a minimum, however, public reports
should include information regarding how many complaints of
ethical misconduct are filed each year against immigration
judges, examples of the types of complaints filed, and how such
complaints are resolved.
F.
Benefits of Ethics Review Board
The creation of an Ethics Review Board would provide
several benefits to the DOJ. Like the complaint procedure for
federal judges under the Judicial Councils Act, this system
offers several methods of appeal and multiple reviewers for
each complaint filed, ensuring that complaints are handled
properly. Also, IJs will be aware that unethical behavior,
particularly biased behavior against litigants, will have public
consequences. The mere possibility of public accountability
could be enough to deter some judges from acting in an
unethical manner, for the threat of public embarrassment will
likely encourage most IJs to act more carefully on the bench.
As judicial performance improves, litigants may be less
inclined to file appeals to the BIA and circuit courts. In this
299
See CJP, 10-Year Summary of Commission Activity, http://cjp.ca.gov/
TenYearStats.htm (last visited Jan. 22, 2008).
300
See CJP, 2006 Private Discipline Summaries, http://www.cjp.ca.gov/
2001privdisc.htm (last visited Jan. 22, 2008); CJP, 2006 Public Discipline,
http://www.cjp.ca.gov/commcases.htm (last visited Jan. 22, 2008).
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way, a more ethical judiciary at the IJ level could help alleviate
the “surge” in the circuit courts.301
Perhaps more importantly, those IJs who continue to
act improperly will actually be held accountable for their
behavior. Rather than relying on the circuit courts, reporters,
or legal scholars to identify “bad apples” among IJs and BIA
members, EOIR and the DOJ could recognize, discipline, and
remove biased or incompetent judges before their behavior
impacts large numbers of applicants. As a result, the ethical
integrity of immigration judges and BIA members would
noticeably improve.
In addition, this improved layer of accountability serves
a separate purpose for the Justice Department: sorely needed
public relations benefits. Creating an Ethics Review Board, in
addition to enhanced ethics training for judges, would
demonstrate the DOJ’s renewed commitment to ensuring
ethical conduct. Moreover, if litigants entering immigration
courts know they will be guaranteed a “professional manner”302
and “impartial treatment,”303 and also know that a systematic
method for complaints is available if they encounter otherwise,
a more positive public perception of EOIR and its judges could
be restored.
Creation of an Ethics Review Board would also be cost
effective. There is no need to hire large numbers to staff the
ERB; indeed, a five- to nine-member panel would be sufficient
as a start. Lawyers from the DOJ Office of Government Ethics,
who are trained in ethics standards and advise attorneys
throughout the department on ethical issues, would be well
suited for the position. Alternatively, the ERB could consist of a
variety of members—including practitioners or advocates from
both sides of the immigration debate—to assure a balanced
consideration of complaints. Also, members would serve one to
two-year terms on the ERB, to minimize the time commitment
required for each member. The low-cost creation of a small
board, guaranteeing accountability for judges’ violations of
EOIR’s own Codes of Conduct, will go a long way toward
restoring the fairness and integrity of the immigration system.
301
Seipp & Feal, supra note 18, at 2012 (circuit courts are taking time to
“graphically expose the unfortunate number of glaringly defective decisions” rendered
by IJs). With more ethical behavior on the bench, the number of “glaringly defective”
decisions will hopefully decrease, freeing the circuit courts to consider more
substantive legal issues.
302
EOIR Codes, supra note 217, Canon X.
303
Id. Canon VI.
2008]
VI.
523
CONCLUSION
The crisis in the immigration courts warrants
examination from the perspective of judicial ethics. Increasing
reports of biased or incompetent conduct on the immigration
bench raise particular concerns about the ability of the
immigration court system to properly adjudicate cases. But
these pervasive ethical problems also present an unparalleled
opportunity for reform.
The Attorney General’s pending proposals to redress
improper conduct on the part of immigration judges indicates
recognition of the problem and government willingness to
improve. However, some of the pending reforms, such as the
EOIR Codes of Conduct, suffer from significant flaws
undermining their power to ensure unbiased and competent
behavior on the immigration bench.
Numerous effective reform proposals have been
articulated in recent months, and this author joins legal
scholars, appellate judges, and practitioners in supporting
structural changes.304 To reframe the ongoing discussion from
an ethical perspective, this article proposes three practical
reforms designed to actively promote ethical conduct for
immigration judges. For a start, the EOIR Codes of Conduct
could be used as a springboard to address challenges facing
immigration judges, such as excessive caseloads. Genuine
improvement will also require the investment of more time and
money for training courses on judicial ethics. Additionally, a
panel of reviewers in the form of an Ethics Review Board
will develop accountability and consequences for judicial
misconduct. The ERB will take responsibility for monitoring
complaints away from a single individual, and place the burden
more fairly on a multi-member panel. Such changes would
benefit not only individuals litigating in immigration court, but
would also signify the Department of Justice’s renewed
commitment to ethical conduct in the courtroom. It is hoped
that expanded recognition of the ethical repercussions of this
crisis will soon translate into meaningful change—for litigants
like Mr. Tun and Mr. Elias, and for immigration judges seeking
to do their jobs well.
304
See sources cited in supra note 11; see also supra Part V.
Shopping During Extended Store
Hours: From No Shops to Go-Shops
THE DEVELOPMENT, EFFECTIVENESS, AND
IMPLICATIONS OF GO-SHOP PROVISIONS IN
CHANGE OF CONTROL TRANSACTIONS
Christina M. Sautter†
BUD FOX: How much is enough?
GORDON GEKKO: It’s not a question of enough, pal. It’s a zero-sum
game, somebody wins and somebody loses.
—Wall Street1
I.
INTRODUCTION
The question “How much is enough?” has likely
resonated through boardrooms for decades in the wake of the
Delaware Supreme Court’s 1986 landmark decision, Revlon,
Inc. v. MacAndrews & Forbes Holdings, Inc.,2 announcing that
once the sale of a company becomes inevitable, the board must
take steps to ensure the maximization of value for the benefit
of the stockholders.3 The Supreme Court forever altered the
corporate sales process by further stating that directors should
foster competitive bidding to obtain the highest price possible
†
Westerfield Fellow, Loyola University New Orleans College of Law; J.D.,
summa cum laude & Order of the Coif, Villanova University School of Law, 2002; B.S.,
summa cum laude, Florida State University, 1999. Many thanks to Professors Trey
Drury and Robert Miller for their comments and suggestions. Thank you also to Dr.
Heiko Schiwek and Jay Mirostaw for their comments and insights. In addition, I would
like to extend my gratitude to my colleagues, Kim D. Chanbonpin, for her comments
and support, and Vik Kanwar for his suggestions. Thank you also to the Villanova
University School of Law Faculty for allowing me to present this Article as a work-inprogress during their Faculty Workshop Series. Finally, thank you to Tim Kappel for
his research assistance. Naturally, the views and, particularly, the errors contained
herein are solely my own.
1
WALL STREET (Amercent Films, American Entertainment Partners L.P.,
Twentieth Century-Fox Film Corp. 1987).
2
506 A.2d 173 (Del. 1986).
3
Id. at 182.
525
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for stockholders.4 Initially, this appeared to signal a movement
toward a purer auction model, or at least a more competitive
bidding process in the market for corporate control.5 Over the
past twenty years, however, dealmakers have devised various
tactics and sale methods in response to this perceived
movement.6
Similar to Delaware’s takeover jurisprudence, corporate
sale methods are not formed in a vacuum, but are products of
the periods in which they are developed. Revlon, for example, is
a direct result of the mergers and acquisitions (“M&A”)
landscape of the 1980s, which for many is best exemplified by
the 1987 movie Wall Street. This period was marked by
unprecedented deal volume, highly leveraged transactions,
hostile takeovers, and corporate raiders, like Gordon Gekko,
who often challenged entrenched management.7 The buyout
boom of the 1980s left a lasting impression on corporate case
law, as the Delaware courts issued a number of watershed
opinions addressing a board’s obligations to stockholders as
well as management and board greed. The cases stemmed from
stockholder allegations that boards and management resisted
deals offering large premiums in an effort to maintain their
jobs.8
4
Revlon, 506 A.2d at 183.
See Mark J. Loewenstein, Toward an Auction Market for Corporate Control
and the Demise of the Business Judgment Rule, 63 S. CAL. L. REV. 65, 66-68 (1989)
(describing the movement toward an auction model for corporate control).
6
The focus of this Article is on post-signing market checks and go-shop
provisions. For in-depth discussions of these sale methods, see infra Part II.C-E.
7
See Jason M. Klein, When the Board Should Just Say Yes to Management:
The Interplay Between the Decision of Whether to Conduct an Auction and Transaction
Structure, 5 STAN. J.L. BUS. & FIN., Aug. 1999, at 45, 45-46 (describing the M&A
environment in the 1980s); Joseph S. Allerhand & Bradley R. Aronstam, New Wave of
M&A Litigation Attacks Private Equity Deals, 238 N.Y.L.J. 9 (July 9, 2007) (“[M]erger
and acquisition activity in the 1980s was epitomized by hostile takeovers and the
‘omnipresent specter’ of entrenched management . . . .”). During the early 1980s,
management buyouts (“MBOs”) were characterized by the sales of divisions of larger
companies, but the trend shifted in the mid-1980s to highly leveraged MBOs of
complete companies rather than divisions. Klein, supra, at 45-46. The trend shifted
again during the late 1980s when management utilized MBOs as defensive tactics
against corporate raiders. Id. at 46; see also Edward B. Rock, Saints and Sinners: How
Does Delaware Corporate Law Work?, 44 UCLA L. REV. 1009, 1022 (1997) (stating that
management obtained job security through MBOs).
8
See Peter Lattman & Dana Cimilluca, Court Faults Buyouts—Delaware
Rulings Raise Disclosure Questions in Topps, Lear Deals, WALL ST. J., July 12, 2007, at
C1 (describing the legal claims arising from the 1980s buyout boom and recognizing
corporate raiders offered stockholders large premiums and promised to remove boards
and management).
5
2008]
FROM NO SHOPS TO GO-SHOPS
527
The furious dealmaking activity of the last few years
has led some to compare the current M&A environment to that
of the 1980s.9 In many respects, the comparison is a fair one as
there has been a resurgence of leveraged buyouts (“LBOs”),10
management buyouts (“MBOs”),11 and hostile takeovers.12 There
are, however, a number of subtle but important developments
that highlight the differences between the two decades. Unlike
the hostile transactions of the 1980s that were generally led by
corporate raiders, today’s hostile takeover attempts are
increasingly launched by strategic buyers and, more recently,
private equity buyers.13 In addition, corporate raiders have
been replaced by, or have simply transformed themselves into,
stockholder activists.14 For example, Carl Icahn, the
quintessential corporate raider—and real-life Gordon Gekko
9
See Rik Kirkland, Private Money, FORTUNE, Mar. 5, 2007, at 50 (comparing
the current prevalence of private equity leveraged buyouts to leveraged buyouts in the
1980s); Joe Nocera, From Raider to Activist, But Still Icahn, N.Y. TIMES, Feb. 3, 2007,
at C1 (quoting Peter J. Solomon, a prominent New York investment banker, as stating,
“We are in a carnivorous wave . . . . The last one was about greenmailing and corporate
raiding. This one is about private equity and activists.”).
10
An LBO is a takeover of a company in which an acquirer uses borrowed
funds to finance the transaction. Typically, the target company’s assets are used as
security for the debt the acquirer incurred in purchasing the target. In an LBO, the
acquirer profits by taking the company public with an initial public offering, or by
selling the company to another acquirer.
11
An MBO is a transaction in which the target company’s management
purchases the target’s publicly held shares and takes the company private. An MBO is
typically financed as a leveraged buyout.
12
See Philip Mills & Mutya Harsch, Hostile Takeovers: How to Avoid the
Jump, INT’L FIN. L. REV., Dec. 2006, at 44, 44-45 (describing increases in financial
sponsored deals and hostile activity globally).
13
See Igor Kirman, Takeover Law and Practice, in DOING DEALS 2007:
UNDERSTANDING THE NUTS & BOLTS OF TRANSACTIONAL PRACTICE 9, 22 (PLI Corp.
Law & Practice Handbook Series No. 1594, 2007) (contrasting today’s hostile activity
involving strategic buyers to hostile deals in the 1970s and 1980s); see also In re
Netsmart Techs., Inc. S’holders Litig., 924 A.2d 171, 198 (Del. Ch. 2007) (recognizing
that, in the early part of this decade, strategic buyers jumped competitors’ deals
and that the current trend is for private equity firms to outbid strategic buyers); In re
Toys “R” Us, Inc. S’holder Litig., 877 A.2d 975, 1008 (Del. Ch. 2005) (recognizing
that a marketplace exists “where strategic buyers have not felt shy about ‘jumping’
friendly deals crafted between their industry rivals”); ROBERT E. SPATT, THE FOUR
RING CIRCUS—ROUND ELEVEN; A FURTHER UPDATED VIEW OF THE MATING DANCE
AMONG ANNOUNCED MERGER PARTNERS AND AN UNSOLICITED SECOND OR THIRD
BIDDER 1, 1-9 (Mar. 17, 2007), available at http://stblaw.com/content/publications/
publications23_0.pdf (listing examples of U.S. and foreign transactions from 1994 to
early 2007 in which a deal was jumped or a jump was attempted).
14
See Kirman, supra note 13, at 27-28 (discussing increase in stockholder
activism).
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[Vol. 73:2
figure of the 1980s—has now embraced the role of stockholder
activist.15
Recent years have seen the unprecedented growth of
M&A activity and the re-emergence of private equity firms
playing an enhanced role in M&A deals. For example, in 2006,
global deal volume totaled $3.79 trillion with private equity
buyouts accounting for nearly a fifth of all deals.16 Dealmakers
began 2007 at an even more accelerated pace. During the first
half of the year, deal volume totaled $1.005 trillion in the
United States alone, representing a 36% increase from the
same period in 2006 and marking the first time that M&A
activity has ever reached that level in the first half of any
year.17 During the first half of 2007, private equity firmsponsored LBOs accounted for $644 billion worth of deals
worldwide.18 This is up 95.1% from 2006 and accounts for 34%
of the $1.005 trillion of U.S. deal activity and nearly a quarter
of all merger activity worldwide.19 Although recent months
have seen turmoil in the credit markets that are so vital to
private equity transactions and dealmaking generally, record
transaction volume demonstrates that we have been in the
midst of a distinctive time for deal activity over the past few
years.
Like the unique takeover activity of the 1980s, the
recent M&A boom has prompted the Delaware courts to
address the actions, and sometimes the alleged greed, of
15
See Nocera, supra note 9, at C1 (describing Icahn’s transition from
corporate raider to stockholder activist); see also William W. Bratton, Hedge Funds
and Governance Targets, 95 GEO. L.J. 1375, 1377-79 (2007) (describing recent
example of Icahn’s stockholder activism during proposed Mylan Laboratories-King
Pharmaceuticals deal).
16
Heather Timmons, The Year That Made Deal Makers Giddy, N.Y. TIMES,
Jan. 5, 2007, at C6 (citing Thomson Financial statistics regarding 2006 deal flow and
indicating that another statistics firm, Dealogic, has stated that 2006 deal flow was
worth even more, at $3.98 trillion). According to Thomson Financial, the $3.79 trillion
figure represents an increase of 38% from 2005. Id.
17
See Jessica Hall, U.S. Merger Volume Hits Record Despite Soft
June, REUTERS, June 28, 2007, http://www.reuters.com/article/mergersNews/idUSN
2837929220070628 (citing Dealogic statistics).
18
Grace Wong, Private Equity: Scrooge No Longer, CNNMONEY.COM,
July 10, 2007, http://money.cnn.com/2007/07/10/markets/pe_philanthropy/index.htm
(citing Thomson Financial statistics).
19
Id. (citing Thomson Financial statistics that the number of private equity
deals accounted for a quarter of all M&A deals worldwide and represented a 95.1%
increase from the previous year); Grace Wong, Private Equity: The Beat Goes On,
CNNMONEY.COM, July 4, 2007, http://money.cnn.com/2007/07/04/markets/pe_what_
next/index.htm (citing Dealogic statistics that private equity buyouts accounted for
34% of $1 trillion U.S. deal activity in the first six months of 2007).
2008]
529
corporate management and boards.20 This time the cases often
involve allegations by stockholders that boards have favored
private equity buyers who are seeking to retain management
with enhanced compensation packages.21 Like the 1980s,
today’s high deal volume and new dealmakers are creating a
new set of issues for courts to address, including new sale
methods that purportedly enable boards to better satisfy their
Revlon duties.22
Perhaps the most prominent and controversial among
these new deal tactics are go-shop provisions. Unlike “no shop”
or “window shop” provisions—deal protection devices which
prevent a target company from actively soliciting bids following
the signing of a definitive agreement—go-shop provisions
permit a target company to actively solicit alternative bidders
for a limited period after entering into a definitive agreement
with an acquirer.23 Since Revlon, dealmakers have relied
primarily on pre-signing public auctions or targeted market
canvasses in an effort to obtain the highest possible price for
stockholders.24 Because these sale methods are completed presigning, M&A agreements generally include a “fiduciary out”25
that enables the target board to consider unsolicited third
party offers received between signing and receipt of stockholder
approval. However, the board may only consider the third
20
This Article focuses solely on Delaware law because of Delaware’s welldeveloped body of corporate case law, its continuing influence over other states’
corporate laws, and its dominant position in the incorporation market. For example,
over 50% of U.S. corporations that are currently traded on the New York Stock
Exchange and NASDAQ, and 61% of Fortune 500 companies, are incorporated in
Delaware. DIVISION OF CORPORATIONS, DEL. DEP’T OF STATE, 2006 ANNUAL REPORT,
http://www.corp.delaware.gov (search for “2006 Annual Report”).
21
See Lattman & Cimilluca, supra note 8, at C1 (“In the current buyout
craze, many buyout firms retain the management by offering rich pay packages and a
stake in the newly private entity.”).
22
See Grace Wong, Rival Bidders Emerge for Big Buyouts, CNNMONEY.COM,
Mar. 19, 2007, http://money.cnn.com/2007/03/19/markets/pe_deals/index.htm [hereinafter Rival Bidders] (“The deal landscape may be growing more intense, but private
equity firms—considered some of the savviest deal makers on Wall Street—
undoubtedly are looking out for ways to stay one step ahead of their rivals.”).
23
See Dennis J. Block, Public Company M&A: Recent Developments in
Corporate Control, Protective Mechanisms and Other Deal Protection Techniques, in
CONTESTS FOR CORPORATE CONTROL 2007: CURRENT OFFENSIVE & DEFENSIVE
STRATEGIES IN M&A TRANSACTIONS, at 7, 106-07 (PLI Corp. Law & Practice, Course
Handbook Series No. 1584, 2007) (differentiating no shops and go-shops).
24
See infra note 69 and accompanying text (discussing how public auctions
and market canvasses are the best ways to ensure the maximization of stockholder
value).
25
For a description of “fiduciary out” provisions, see infra Part II.A.2.
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party offer if it is, or may become, a superior offer.26 Thus, in
the typical deal, a target is “closed for business” and must
ignore advances from third parties unless an unsolicited
superior proposal is received. By contrast, go-shop provisions
effectively allow a target to extend its typical “store hours” and
actively seek a better deal during the time in which it
otherwise would have been officially closed for business.
Although go-shop provisions initially surfaced during
the late 1980s, the provisions received scant attention from the
M&A community until dealmakers began utilizing the
provisions with increasing frequency over the past three years.
This increased use of go-shop provisions has triggered a debate
among commentators as to the effectiveness of the provisions
and have led some to question whether the provisions are
merely “window dressing” enabling boards to claim that they
have satisfied their duty to maximize stockholder value.27
This Article demonstrates, through an examination of
the go-shop provision’s development, that despite Revlon,
Delaware courts have failed to take affirmative steps to
promote the maximization of stockholder value. Furthermore,
this Article argues that the ability of a company to extend its
“store hours” by actively shopping post-signing has the same
end result with respect to value maximization as the typical
post-signing market check that relies solely on a no shop
provision coupled with a fiduciary out. Part II of the Article
explores the evolution of go-shop provisions.28 The section
begins with a general discussion of deal protection devices with
a particular focus on no shop and window shop provisions, the
predecessors to the go-shop, and then moves into a more
specific description of the Delaware courts’ treatment of postsigning market checks in light of Revlon and its progeny.29 The
26
See infra notes 50-51 and 86 and accompanying text (describing fiduciary
outs and use of fiduciary outs). Merger agreements differ on what constitutes a
“superior offer,” with factors such as the form of consideration, certainty of closing, and
regulatory issues often playing an important role. However, this Article assumes that
the principal determination of whether an offer is superior is the value of consideration
paid.
27
See Mark A. Morton, Partner, & Roxanne L. Houtman, Assoc., Potter
Anderson & Corroon LLP, Go-Shops: Market Check Magic or Mirage? 1, 7-8 (May 2007),
www.potteranderson.com/assets/attachments/Potter_Anderson_Go-Shops__rev.pdf
(questioning whether go-shop provisions are effective or are “window dressing”). For a
further discussion regarding the effectiveness of go-shop provisions, see infra Part
III.A.
28
See infra Part II (describing the evolution of the go-shop).
29
See infra Part II.A-C.
2008]
531
section ends with a discussion of the development of go-shop
provisions.30 Part III discusses the effectiveness of go-shop
provisions, including critics’ arguments that the provisions
have a chilling effect on the bidding process.31 This section also
includes an examination of In re Topps Co. Shareholders
Litigation and In re Lear Corp. Shareholders Litigation, the
most recent Delaware cases to specifically address and validate
go-shop provisions.32 Part IV of this Article contends that,
despite facial differences, go-shop provisions and post-signing
market checks are effectively the same.33 The Delaware courts’
continuing validation of both post-signing market checks and
go-shop provisions reveal the courts’ hesitancy in disrupting
signed transactions and has resulted in a movement away from
Delaware’s policy that directors should act as auctioneers and
conduct a sale process that will result in the maximization of
stockholder value. Thus, I contend that this continued trend in
Delaware jurisprudence, including the Delaware Court of
Chancery’s validation of go-shop provisions, signals the death
of the policies, originally set forth in Revlon, promoting a more
competitive sale process, and, ultimately, higher value
realization for stockholders.
II.
THE RISE OF GO-SHOP PROVISIONS
A.
Deal Protection Generally
To fully appreciate no shops, market checks, and goshops, one must first understand the reasons that dealmakers
use deal protection devices generally and how typical deal
protection devices are used in combination. In classic consumer
shopping situations, once a consumer finds and selects a
desired product at a price he or she is willing to pay, the
consumer can generally rest assured that the time spent and
money invested thus far is not for naught. In such situations,
the time between the selection of a product and the exchange of
money and ownership is usually limited, and thus the risk that
an interloper will upset the transaction is likewise extremely
small or, in most cases, nonexistent. However, the same does
not hold true in the M&A world.
30
31
32
33
See infra Part II.D-E.
See infra Part III.A.
See infra Part III.B.
See infra Part IV.
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Unlike everyday consumer transactions, the purchase of
a public company cannot be completed prior to the fulfillment
of certain closing conditions. These conditions include
stockholder approval, the preparation and filing of a proxy
statement, and, in many cases, regulatory approval, including
antitrust approvals, the registration of securities to be issued
in connection with the transaction and other required third
party consents.34 Because of the time needed to accomplish
these required closing conditions, the interim period between
signing the transaction agreement and closing the transaction
can stretch anywhere from several weeks to several months, or
beyond.35
By the time of signing, the acquirer has devoted a
significant amount of time and money to identifying the target
and to assessing the target’s value.36 In addition to traditional
sunk costs that are associated with identifying and assessing
the value of the target, commentators have also identified
operational costs and reputational costs that the initial
acquirer may incur in the event that the transaction is not
completed. For example, Professor Guhan Subramanian has
argued that if a deal is not completed, the initial acquirer may
suffer a decrease in its own stock price and may be viewed as
“weak” in the market for corporate control.37 Such a reputation
for weakness may result in the reduction of future profit
opportunities for the acquirer because other bidders may be
more willing to enter into a future bidding contest against a
“weak” bidder.38 Because of these potential costs, the acquirer
will seek to prevent its proposed transaction from being
interrupted, or “jumped,” by a third party.
34
See Stephen M. Bainbridge, Exclusive Merger Agreements and Lock-Ups in
Negotiated Corporate Acquisitions, 75 MINN. L. REV. 239, 241 n.3 (1990) (listing closing
conditions).
35
See id. at 241 (explaining there is generally a two to four month period
between signing and closing); John C. Coates IV & Guhan Subramanian, A Buy-Side
Model of M&A Lockups: Theory and Evidence, 53 STAN. L. REV. 307, 310 (2000) (stating
that the period between signing and closing ranges from a minimum of thirty days to
up to six months).
36
See Bainbridge, supra note 34, at 242 (describing purchaser’s sunk costs).
37
See Guhan Subramanian, The Drivers of Market Efficiency in Revlon
Transactions, 28 J. CORP. L. 691, 701-02 (2003) (describing potential operational and
reputational costs that acquirer may incur in the event of a failed deal).
38
See id. at 702 (describing reputational costs); see also Coates &
Subramanian, supra note 35, at 360 (stating that bidders may decide not to enter
future auctions if a “tough” bidder has already entered the bidding contest, or may drop
out if a tough bidder enters).
2008]
533
On the other hand, the target’s board has an obligation
to act in the best interests of the business and must fulfill its
fiduciary duties to the corporation’s stockholders.39 In some
cases, this may mean considering options that arise after the
signing of a definitive transaction agreement as a result of a
deal being “jumped.” In addition, the target’s stockholders may
not approve the proposed transaction for any reason, including
the existence of a superior third party bid. Thus, a definitive
agreement between the initial acquirer and the target is not
necessarily a “sure thing” because it does not effectively bind
the target to the transaction.40 This tension between the initial
acquirer’s costs and the non-binding nature of the agreement
on the target and its stockholders has given rise to deal
protection devices. As the name suggests, deal protection
devices include a variety of contractual terms that are
incorporated into a definitive agreement with the goal of
protecting a deal from being “jumped” by a third party by
making the third party’s bid riskier and more expensive.41 The
inclusion of at least some combination of deal protection
devices has become de rigueur in public M&A transactions.42
The following section is a brief summary of some typical
deal protection devices, including no shops, window shops, no
talk provisions, termination or break-up fees, and matching
rights. In addition, this section also focuses on “fiduciary outs,”
which act as important exceptions to deal protection devices.
This section, as well as the remainder of this Article, addresses
how dealmakers use these devices in combination and how the
Delaware courts have treated the results of such combinations.
39
For a discussion of a board’s fiduciary duties in a change of control context,
see infra notes 63-71 and accompanying text.
40
See note 86 and accompanying text. There also are reasons why the target
may want a binding definitive agreement. For example, if the acquirer backs out, the
target risks being left “in play” without another buyer. Sean J. Griffith, Deal Protection
Provisions in the Last Period of Play, 71 FORDHAM L. REV. 1899, 1900-01 (2003)
(describing a target’s reasons for avoiding non-binding agreements). In addition, an
unsolicited bid from a financial buyer may not present the same opportunities for
synergy that the signed deal with a strategic buyer may be capable of. See id.
41
See id. at 1902-03 (describing why deal protection mechanisms are used);
see also McMillan v. Intercargo Corp., 768 A.2d 492, 506 n.62 (Del. Ch. 2000) (stating
that deal protection devices make “it more difficult and more expensive to consummate
a competing transaction and . . . provid[e] compensation to the odd company out if such
an alternative deal nonetheless occurs”).
42
See Block, supra note 23, at 89 (stating that acquirers and targets will
often bargain for deal protection devices); Coates & Subramanian, supra note 35, at
315 (indicating that, by 1998, lock-ups appeared in 80% of deals and termination fees
appeared in 70% of deals).
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1. No Shop Provisions, Window Shop Provisions, and
No Talk Provisions
Although the term “no shop” can refer to a variety of
covenants in an M&A agreement, pure no shop provisions
prevent a target’s board from actively soliciting bids after the
target has entered into a definitive agreement with an initial
acquirer.43 Similarly, window shop provisions prevent a target
from actively soliciting bids from third parties after the signing
of a definitive agreement.44 However, a window shop provision
contains a fiduciary out that allows the target’s board to
negotiate with, provide due diligence materials to, and, if
appropriate, ultimately accept a bid from a third party that
makes an unsolicited offer if taking such action is necessary to
avoid a breach of the board’s fiduciary duties.45 Typically,
window shop provisions require that the unsolicited third party
bid meet certain criteria in order to exercise the fiduciary out;
among these requirements is that the third party bid be
deemed a superior proposal to that of the incumbent bidder.46
Although technically slightly different, the terms “no shop” and
“window shop” are frequently referred to interchangeably and
will be referred to interchangeably throughout this Article.
Conversely, no talk provisions prevent the target from
actively soliciting potential third party bids and from
negotiating with, or providing due diligence or other
information to, a third party who has submitted an unsolicited
offer, despite the terms of the unsolicited offer.47 In essence, as
the name suggests, no talk provisions prevent targets from
speaking with interested third parties altogether, unless the
target has permission from the initial acquirer. Practitioners
have viewed no talk provisions that do not contain fiduciary
outs as per se invalid because they can prevent a target’s board
43
Block, supra note 23, at 91. Block indicates that pure no shops are
generally not permissible in transactions resulting in a change of control of the target
unless the target’s board has already fulfilled their Revlon duties by conducting an
auction. Id. at 93. For a further discussion of a board’s Revlon duties and related sale
methods, see infra notes 63-86 and accompanying text.
44
Block, supra note 23, at 91.
45
Id. For a further discussion of fiduciary out clauses, see discussion infra
Part II.A.2.
46
See Block, supra note 23, at 92 (listing typical window shop fiduciary out
requirements).
47
See id. at 91 (describing no talk provisions); Thanos Panagopoulos,
Thinking Inside the Box: Analyzing Judicial Scrutiny of Deal Protection Devices in
Delaware, 3 BERKELEY BUS. L.J. 437, 446 (2006) (same).
2008]
535
from fulfilling their fiduciary duties, which the Delaware Court
of Chancery has stated is the “legal equivalent of willful
blindness.”48
Delaware courts analyze the validity of no shop
provisions based on the particular facts and circumstances of a
given case. Accordingly, courts will uphold no shop provisions
where they “do not foreclose other offers, but operate merely to
afford some protection to prevent disruption of the Agreement
by proposals from third parties that are neither bona fide nor
likely to result in a higher transaction.”49
2. Fiduciary Outs
Although fiduciary outs are not deal protection devices,
fiduciary outs are used with deal protection devices to ensure
the validity of the devices. Fiduciary outs are contractual
clauses that allow the target to perform an act that the
agreement otherwise forbids (or to refrain from doing an act
that the contract requires) if the performance of the forbidden
act (or non-performance of the required act) would otherwise
result in a violation of a board’s fiduciary duties.50 When a
board exercises its fiduciary out, the resulting act, or failure to
act, is not considered to be a contractual breach.51 Thus, the
fiduciary out acts as a safe harbor to the deal protection
mechanism.
3. Termination or Break-Up Fees
No shops are often paired with termination or break-up
fees that are payable by the target to the incumbent bidder
48
Phelps Dodge Corp. v. Cyprus Amax Minerals Co., Nos. CIV. A. 17398,
CIV. A. 17383, CIV. A. 17427, 1999 WL 1054255, at *1 (Del. Ch. Sept. 27, 1999) (“Notalk provisions . . . are troubling precisely because they prevent a board from meeting
its duty to make an informed judgment with respect to even considering whether to
negotiate with a third party.”); see also Ace Ltd. v. Capital Re Corp., 747 A.2d 95, 10609 (Del. Ch. 1999) (suggesting that no talk provisions are invalid); Karl L. Balz, NoShop Clauses, 28 DEL. J. CORP. L. 513, 545 (2003) (describing the validity of no talk
provisions and scenarios where no talk provisions may be deemed valid).
49
Matador Capital Mgmt. Corp. v. BRC Holdings, Inc., 729 A.2d 280, 291
(Del. Ch. 1998).
50
See William T. Allen, Understanding Fiduciary Outs: The What and the
Why of an Anomalous Concept, 55 BUS. LAW. 653, 653-54 (2000) (defining fiduciary
outs).
51
See id. at 654.
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upon the occurrence of specific circumstances.52 Typical
triggering events include the termination of an agreement
following (1) the target board’s withdrawal, modification or
change in its recommendation of the proposed transaction; (2)
the target board’s recommendation of a competing proposal; (3)
the target board’s exercise of a fiduciary out in favor of a
superior proposal; or (4) the stockholders’ failure to approve the
proposed transaction.53 Delaware courts have upheld
termination fees ranging from 1% to 6% of the target’s equity
value.54 Generally, however, dealmakers include termination
fees ranging from 1% to 5% of transaction value, with a median
of approximately 2.6% to 3%.55
In the event that a deal falls through, termination fees
guarantee that the initial acquirer will at least be compensated
for the fees and expenses that it incurred in negotiating
the underlying agreement.56 Although the target incurs the
termination fee, the fee is considered a transaction cost for
52
Termination fees can also be payable by an acquirer to the target in certain
situations, including where the acquirer breaches an agreement and fails to
consummate the transaction. Fees payable by the acquirer to a target are known as
reverse termination fees.
53
See Block, supra note 23, at 115-16 (describing typical triggering events for
termination fees).
54
See id. at 110 (describing current practices relating to termination fees).
The courts treat termination fees as liquidated damages and rely on authority stating
that liquidated damage provisions equal to between 1% and 5% of the proposed
acquisition price are reasonable. See Kysor Indus. Corp. v. Margaux, Inc., 674 A.2d
889, 897 (Del. Super. Ct. 1996) (citing Bainbridge, supra note 34, at 245). Despite
treating termination fees as liquidated damages, the Delaware courts refuse to issue a
bright-line rule regarding the acceptable percentage of termination fees. See La. Mun.
Police Employees’ Ret. Sys. v. Crawford, 918 A.2d 1172, 1181 n.10 (Del. Ch. 2007)
(“Though a ‘3% rule’ for termination fees might be convenient for transaction planners,
it is simply too blunt an instrument, too subject to abuse, for this Court to bless as a
blanket rule.”). However, in dicta, the Delaware Court of Chancery has indicated that a
termination fee of 6.3% “certainly seems to stretch the definition of range of
reasonableness and probably stretches the definition beyond its breaking point.” Phelps
Dodge, Nos. CIV. A. 17398, CIV. A. 17383, CIV. A. 17427, 1999 WL 1054255, at *2. For
further examples of termination fees that the Delaware Court of Chancery have
upheld, see infra note 112.
55
See Block, supra note 23, at 110 (describing typical termination fees).
56
See Kysor Indus., 674 A.2d at 897 (stating that termination fees act as a
form of reimbursement for the initial bidder’s lost opportunities and expenditures);
Panagopoulos, supra note 47, at 445 (describing the purposes of termination fees).
Generally, “the more closely a fee resembles the actual and economic costs incurred by
a party the more likely it is to be upheld by a court.” Gregory V. Varallo & Srinivas M.
Raju, A Process Based Model for Analyzing Deal Protection Measures, 55 BUS. LAW.
1609, 1613 (2000).
2008]
537
the topping bidder.57 Thus, termination fees may act as
disincentives for third parties who are considering “jumping” a
deal because they make the topping bid more expensive.58
4. Matching Rights
In addition to termination fees, no shops are commonly
paired with matching rights, also referred to as topping or lastlook rights. Matching rights require the target to inform the
incumbent bidder of a superior proposal and allow the
incumbent bidder a period during which the incumbent bidder
may match, or exceed, the unsolicited superior proposal.59 Thus,
matching rights have the capability of creating a post-signing
bidding war between the initial acquirer and one or more
interlopers who have submitted superior proposals.
Matching rights act as deal protection devices because
they deter potential bidders from “jumping in” post-signing
since potential bidders are aware that the initial acquirer may
submit another bid matching, or exceeding, the superior
proposal.60
5. Go-Shop Provisions
As previously discussed, go-shop provisions appear to be
the opposite of no shop provisions.61 Go-shops allow a target
to actively solicit buyers after the target has already entered
into a definitive agreement with a purchaser. Although
commentators tend to refer to go-shop provisions as deal
protection devices, I contend that go-shops are more similar to
fiduciary outs because they allow the target company to
57
See Omnicare, Inc. v. NCS Healthcare, Inc., 818 A.2d 914, 938 (Del. 2003)
(“To the extent that defensive measures are economic and reasonable, they may become
an increased cost to the proponent of any subsequent transaction.”).
58
See Panagopoulos, supra note 47, at 445; Judd F. Sneirson, Merger
Agreements, Termination Fees, and the Contract-Corporate Tension, 2002 COLUM. BUS.
L. REV. 573, 581-82 (providing examples illustrating how termination fees deter topping
bids).
59
See Block, supra note 23, at 117 (describing typical matching rights).
Generally, matching rights also require the target to inform the initial acquirer of the
identity of the person who submitted the superior proposal. Id. In addition, the initial
acquirer is typically given three business days’ notice of a possible termination. Id.
Once the initial acquirer is given notice, the matching rights provision usually requires
that the target negotiate in good faith with the initial acquirer so that the initial
acquirer may make a superior proposal. Id.
60
Id.
61
See infra Part IV.
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actively solicit other bidders following signing and could result
in the termination of an agreement in favor of a superior
proposal.62 A more in-depth discussion of the typical
characteristics of go-shop provisions is set forth in Part II.E.
B.
Fiduciary Duties of the Board
Over the past several years, practitioners, academics,
and jurists have wrestled with the judicial standard of review
applicable to deal protection devices, an issue that this Article
does not seek to address.63 However, it is clear since Revlon
that once a board of directors contemplates a transaction that
will cause either a change in corporate control64 or a breakup
of the corporate entity, the board is obligated to seek the
best present value reasonably available to stockholders.65
62
See, e.g., Block, supra note 23, at 91, 106 (grouping go-shop provisions with
deal protection devices).
63
See Gregory V. Varallo & Srinivas M. Raju, A Fresh Look at Deal
Protection Devices: Out from the Shadow of the Omnipresent Specter, 26 DEL. J. CORP.
L. 975, 975-76 (2001) (stating that academics, practitioners, and jurists have long
debated the appropriate standard of review for deal protection devices and noting that
the Delaware Court of Chancery has struggled with the issue); see also Balz, supra note
48, at 527-44 (analyzing the appropriate standard of review applicable to no shop
provisions); Stephen J. Lubben & Alana J. Darnell, Delaware’s Duty of Care, 31 DEL. J.
CORP. L. 589, 627 (2006) (arguing that the duty of care standard should be applied to
deal protection devices unless the merger is a defensive measure); Panagopoulos, supra
note 47, at 448-71 (examining and critiquing the judicial standards applicable to deal
protection devices). See generally Symposium, Judicial Standards of Review of
Corporate Fiduciary Action, 26 DEL. J. CORP. L. 995, 1059-82 (2001) (transcript of a
symposium session at which jurists, practitioners, and scholars debated the standards
of review applicable to corporate actions and, in particular, to deal protection devices).
64
This Article does not seek to define what constitutes a “change of control
transaction,” which Delaware jurists recognize to be an unanswered question. See
William T. Allen et al., Function Over Form: A Reassessment of Standards of Review in
Delaware Corporation Law, 26 DEL. J. CORP. L. 859, 895 n.130 (2001) (former
chancellor and his co-authors recognizing that courts have yet to fully address what
constitutes a change of control under Delaware law); see also In re TW Servs., Inc.
S’holders Litig., CIV. A. Nos. 10427, 10298, 1989 WL 20290, at *8 (Del. Ch. Mar. 2,
1989) (asking when Revlon duties apply).
65
See Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173, 182
(Del. 1986) (holding that a board’s act of authorizing management to negotiate a
merger or buyout is a recognition that the company is for sale and changes the board’s
duty from the “preservation of . . . a corporate entity to the maximization of the
company’s value at a sale for the stockholders’ benefit”); see also Allen et al., supra note
64, at 894 (“Where directors have decided to commit the corporation to a change of
control transaction, their actions must be evaluated solely by reference to their duty to
obtain the highest value reasonably available.”). The Delaware Supreme Court has
held that Revlon duties attach
when a corporation initiates an active bidding process seeking to sell itself or
to effect a business reorganization involving a clear break-up of the
company. . . . [or where], in response to a bidder’s offer, a target abandons its
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Additionally, a board’s favoritism of a particular bidder over
another is permitted only if the board’s objective is to maximize
the stockholders’ value of their shares.66 However, the board
need not maintain a “level playing field” at all times.67 The
Supreme Court has recognized that, because today’s corporate
and financial environment is continuously evolving, “no single
blueprint” exists for a board to satisfy its Revlon duties.68
Although “no single blueprint” exists, a transaction with
the highest bidder following a full public auction is the most
desirable way in which a board can satisfy Revlon’s enhanced
scrutiny test.69 In fact, the Delaware Supreme Court held that
in a change of control situation, “a board’s primary duty
becomes that of an auctioneer responsible for selling the
company to the highest bidder.”70 The board is also required to
take steps that foster, rather than impede, bidding, which will
presumably result in the maximization of stockholder value.71
Following Revlon, the Delaware courts have held that a
full-blown public auction is not necessarily a requirement for
change of control transactions for all corporations under
Delaware law.72 Indeed, there are certain situations in which
long-term strategy and seeks an alternative transaction involving the
breakup of the company.
Paramount Commc’ns, Inc. v. Time Inc., 571 A.2d 1140, 1150 (Del. 1990) (citation
omitted).
66
In re Topps Co. S’holders Litig., 926 A.2d 58, 64 (Del. Ch. 2007).
67
See In re TW Servs., 1989 WL 20290, at *7 (holding that there is no duty to
conduct an auction or maintain a “level playing field” when a company is for sale).
68
Barkan v. Amsted Indus., Inc., 567 A.2d 1279, 1286 (Del. 1989).
69
See Morton & Houtman, supra note 27, at 1 (stating that transactions with
the highest bidder after either a full public auction or a slightly more limited market
check in which a number of bidders are contacted directly and participate in bidding
likely satisfies a board’s Revlon duties); Mark W. Peters et al., Emergence of the “GoShop,” 11 WALLSTREETLAYWER.COM: SEC. ELECTRONIC AGE 7 (2007) (indicating that
the most desirable way for the board of a target to fulfill its Revlon duties is to conduct
a full public auction and enter into an agreement with the bidder making the highest
offer). However, even when a full-blown public auction is conducted, the definitive
agreement must still contain a fiduciary out. See infra note 86 and accompanying text.
70
Revlon, 506 A.2d at 184.
71
See id. at 183 (stating that the result of the lock-up in Revlon “was not to
foster bidding, but to destroy it”).
72
See Barkan, 567 A.2d at 1286 (“Revlon does not demand that every change
in the control of a Delaware corporation be preceded by a heated bidding contest.”); In
re Toys “R” Us, Inc. S’holder Litig., 877 A.2d 975, 1000 (Del. Ch. 2005) (“[T]he
[Delaware] Supreme Court has held that the duty to take reasonable steps to secure
the highest immediately available price does not invariably require a board to conduct
an auction process or even a targeted market canvass in the first instance,
emphasizing that there is ‘no single blue-print’ for fulfilling the duty to maximize
value.”). However, small micro-cap companies may not be able to rely on a limited
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a public auction is not desirable, as boards may view public
auctions as placing the company at a competitive disadvantage.73 For example, if a company conducts a public auction, the
company risks losing employees, customers and suppliers.74 In
addition, the company also runs the risk of being viewed by the
market for corporate control as “damaged goods” if the
company does not receive any indications of interest or if the
board determines that the offers it receives are inadequate.75
Thus, in the event of a failed auction, it may take some time for
a company to successfully sell itself.76 Furthermore, although
potential bidders are required to execute confidentiality
agreements before being provided with a confidential offering
memorandum or commencing due diligence, companies also
risk disclosure of proprietary or sensitive information to the
public and to other competitors.77 In addition, in some cases,
the target may have already been approached by a potential
purchaser whose bid may be lost if the target board were to
choose to engage in a full blown auction.78 As a result, target
boards may be faced with a situation in which they are
interested in exploring change of control possibilities but do not
desire to actively pursue a public auction.
In these situations, targets often choose to engage in a
more limited pre-signing market canvass.79 That is, a target, or
public auction or post-signing market check. See infra notes 83-85 and accompanying
text.
73
The Delaware Court of Chancery also recognizes the potential risks
involved with a public auction. See In re MONY Group Inc. S’holder Litig., 852 A.2d 9,
21 (Del. Ch. 2004) (recognizing benefits to single bidder approaches).
74
See Peters et al., supra note 69 (listing reasons why boards choose not to
conduct public bidding processes).
75
Heath Price Tarbert, Merger Breakup Fees: A Critical Challenge to AngloAmerican Corporate Law, 34 LAW & POL’Y INT’L BUS. 627, 633-34 (2003) (internal
quotation marks omitted) (citing F. George Davitt, Orchestrating Takeover Talks: The
Corporate Board, SF86 ALI-ABA 677 (2001)) (describing the possibility that customers,
suppliers, and potential acquirers may view a target as “damaged goods” upon the
failure of a transaction).
76
See Embarking on the Sale Process, in ABA COMMITTEE ON NEGOTIATED
ACQUISITIONS, THE M&A PROCESS: A PRACTICAL GUIDE FOR THE BUSINESS LAWYER 93,
93-94 (2005) (detailing the disadvantages of auctions, including the length of time it
takes to sell a company after a failed auction).
77
See In re Topps Co. S’holders Litig., 926 A.2d 58, 62 (Del. Ch. 2007) (noting
the target’s “legitimate proprietary concerns” about turning over information to a
competitor).
78
See, e.g., id. at 61 (stating that the buyer’s bid was contingent on the target
not conducting a public auction); In re Lear Corp. S’holder Litig., 926 A.2d 94, 104 (Del.
Ch. 2007) (same).
79
See Morton & Houtman, supra note 27, at 1 (stating that a transaction
with the highest bidder occurring after a more limited market check in which a number
2008]
541
more likely its financial advisor, will contact a select group of
potential bidders, who may be interested in purchasing the
target. Because only a limited number of potential purchasers
are contacted, the risks associated with a pre-signing market
canvass are not as great as with a public auction since the
target company has not been placed “on the auction block.”
In addition to a public auction or a more limited presigning market canvass, Delaware courts have repeatedly
validated a target board’s more exclusive reliance on a no shop
with a fiduciary out or a window shop provision,80 also known
as a post-signing market check. This alternative, as previously
discussed,81 permits the target to terminate the definitive
agreement in favor of an unsolicited proposal that would
result in a better deal with a third party. As Part II.C will
demonstrate, the Delaware courts’ repeated blessing of a
target’s reliance on post-signing market checks in the absence
of a public auction or targeted market canvass has made the
post-signing market check a third sale method for targets. It is
worth noting, however, that recent Delaware jurisprudence
indicates that small micro-cap companies82 may need to engage
in a more complete targeted market canvass rather than rely
on a post-signing market check.83 In such a situation, the
rationale for a more complete pre-signing market canvass is
that micro-cap companies do not attract as much attention
from the market for corporate control as their large-cap
counterparts attract and micro-cap companies are less likely to
of bidders are contacted directly and participate in bidding likely satisfies a board’s
Revlon duties).
80
See, e.g., In re MONY Group Inc. S’holder Litig., 852 A.2d 9, 23-24 (Del.
Ch. 2004); In re Pennaco Energy, Inc., 787 A.2d 691, 705-07 (Del. Ch. 2001); In re Fort
Howard Corp. S’holders Litig., Civ. A. No. 9991, 1988 WL 83147, at *12-13 (Del. Ch.
Aug. 8, 1988).
81
See discussion supra Part II.A.1 (describing no shop and window shop
provisions).
82
According to the Securities and Exchange Commission’s proposed
regulation of smaller companies, micro-cap companies are “companies whose
outstanding common stock (or equivalent) in the aggregate comprises the lowest 1% of
total U.S. equity market capitalization” or, in other words, those companies whose
market capitalization is less than approximately $128.2 million. Exposure Draft of
Final Report of Advisory Committee on Smaller Public Companies, 71 Fed. Reg.
11,090, 11,092 (May 3, 2006). Under the same recommendation, large-cap companies
are those companies whose outstanding common stock (or equivalent) accounts for 94%
of total U.S. equity market capitalization or, in other words, those companies whose
market capitalization is more than approximately $787.1 million. See id. (table).
83
See In re Netsmart Techs., Inc. S’holders Litig., 924 A.2d 171, 197-99 (Del.
Ch. 2007) (finding that targeting of private equity buyers and not strategic buyers was
likely a breach of Revlon duties).
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be hostile takeover targets.84 Thus, the Delaware Court of
Chancery found that a micro-cap company’s limited pre-signing
market canvass and the reliance on a post-signing market
check did not adequately fulfill a board’s duties to maximize
stockholder value.85 Nonetheless, even when a large-cap or
micro-cap company has engaged in a public auction or limited
pre-signing market check, agreements must still contain a
fiduciary out in order to allow the target board to fulfill its
Revlon duties between signing and the stockholders’ approval
of the proposed transaction.86
C.
Before the Rise of the Go-Shop: Post-Signing Market
Checks
In the wake of Revlon, Delaware courts have repeatedly
addressed the intensity of the post-signing market check
necessary to satisfy a board’s Revlon duties in the absence of a
public auction or other pre-signing market canvass, or in the
event that a target conducted only a very limited market
canvass.87 However, the courts, and in particular the Delaware
Court of Chancery, are constrained by the context in which
these cases arise. The plaintiffs in these cases are typically the
84
Id. at 197-98; see also In re Lear, 926 A.2d at 123 n.22 (stating that
strategic buyers of micro-cap companies in niche markets are not likely to make
unsolicited proposals without prior discussions or information).
85
In re Netsmart, 924 A.2d at 199.
86
See Omnicare, Inc. v. NCS Healthcare, Inc., 818 A.2d 914, 938 (Del. 2003)
(“The directors of a Delaware corporation have a continuing obligation to discharge
their fiduciary responsibilities, as future circumstances develop, after a merger
agreement is announced.”). In Omnicare, the majority opinion made it clear that the
target company’s board of directors was required to negotiate a fiduciary out clause to
protect its stockholders in the event that the proposed transaction became an inferior
offer. Id. The majority stated that by failing to include a fiduciary out clause, the target
board had effectively “disabled itself from exercising its own fiduciary obligations at a
time when the board’s own judgment is most important, i.e., receipt of a subsequent
superior offer.” Id.
87
See, e.g., In re MONY Group Inc. S’holder Litig., 852 A.2d 9, 23-24 (Del.
Ch. 2004); In re Pennaco Energy, Inc. S’holders Litig., 787 A.2d 691, 705-07 (Del. Ch.
2001); Kohls v. Duthie, 765 A.2d 1274, 1285 (Del. Ch. 2000); Goodwin v. Live Entm’t,
Inc., No. Civ.A. 15765, 1999 WL 64265, at *23 (Del. Ch. Jan. 25, 1999); Matador
Capital Mgmt. Corp. v. BRC Holdings, Inc., 729 A.2d 280, 291 (Del. Ch. 1998); In re
MCA, Inc. S’holders Litig., 598 A.2d 687, 693 (Del. Ch. 1991); In re Vitalink Commc’ns
Corp. S’holders Litig., Civ. A. No. 12085, 1991 WL 238816, at *7 (Del. Ch. Nov. 8,
1991); Roberts v. Gen. Instrument Corp., Civ. A. No. 11639, 1990 WL 118356, at *8-9
(Del. Ch. Aug. 13, 1990); Braunschweiger v. Am. Home Shield Corp., Civ. A. No. 10755,
1989 WL 128571, at *6-7 (Del. Ch. Oct. 26, 1989); In re KDI Corp. S’holders Litig., Civ.
A. No. 10,278, 1988 WL 116448, at *5-7 (Del. Ch. Nov. 1, 1988); In re Fort Howard
Corp. S’holders Litig., Civ. A. No. 9991, 1988 WL 83147, at *12-13 (Del. Ch. Aug. 8,
1988).
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543
stockholders of a target company or a scorned third party
bidder who raise challenges to the market check in a motion
seeking to enjoin an impending merger. The courts thus view
these cases from the position of a Monday morning sports
commentator, attempting to determine whether the board’s
actions were reasonable, not perfect, in light of the
circumstances at the time of the decision.88 In the words of Vice
Chancellor Strine of the Delaware Court of Chancery, “[T]his
reasonableness review is more searching than rationality
review, and there is less tolerance for slack by the directors.”89
As a result, the trend in Delaware jurisprudence is to consider
the sale process as a whole. The courts consider a variety of
factors to determine whether the sale process used resulted in
a transaction that maximizes stockholder value. Among these
factors are the target’s pre-signing market position;90 whether
the special committee, if one was formed, was truly
independent and how the special committee conducted the sale
process;91 whether a truly independent financial advisor was
engaged;92 and whether the stockholders were fully informed of
the sale process.93
The emphasis on this myriad of factors appears to have
shifted the Delaware courts’ attention away from taking
affirmative steps to promote the maximization of stockholder
value. As mentioned previously, Delaware jurisprudence over
88
See Paramount Commc’ns, Inc. v. QVC Network, Inc., 637 A.2d 34, 45 (Del.
1994) (“[C]ourt[s] applying enhanced judicial scrutiny should be deciding whether the
directors made a reasonable decision, not a perfect decision. If a board selected one of
several reasonable alternatives, a court should not second-guess that choice even
though it might have decided otherwise or subsequent events may have cast doubt on
the board’s determination.” (emphasis omitted)); In re Lear, 926 A.2d at 118
(“Reasonableness, not perfection, measured in business terms relevant to value
creation, rather than by what creates the most sterile smell, is the metric.”).
89
In re Netsmart, 924 A.2d at 192.
90
See, e.g., In re Lear, 926 A.2d at 118-19 (considering investments made in
the company and elimination of poison pill as indications to the market that the
company was for sale); In re Pennaco, 787 A.2d at 705 (considering the target’s position
in the market for corporate control, including whether strategic buyers had expressed
interest in the company).
91
See, e.g., In re Fort Howard, 1988 WL 83147, at *12 (examining special
committee’s actions).
92
See, e.g., In re Toys “R” Us, Inc. S’holder Litig., 877 A.2d 975, 1006 n.46
(Del. Ch. 2005) (commenting on fees that the investment bank stood to gain if the
target chose to go with a particular transaction and stating that “[i]n general . . . it is
advisable that investment banks representing sellers not create the appearance that
they desire buy-side work”).
93
See, e.g., In re Lear, 926 A.2d at 110-14 (evaluating whether the extent of
stockholder disclosure met fiduciary requirements); In re Topps Co. S’holders Litig.,
926 A.2d 58, 91-92 (Del. Ch. 2007) (scrutinizing stockholder disclosure).
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the past twenty years reveals that as long as the deal
protection devices do not effectively lock up the transaction,
the Delaware courts will bless whatever sale method is used.
A detailed description of significant market check cases
follows to clearly demonstrate the direction of Delaware Court
of Chancery jurisprudence regarding stockholder value
maximization over the past two decades.
1. In re Fort Howard Corp. Shareholders Litigation
In 1988, two years after the Delaware Supreme Court’s
decision in Revlon, the Court of Chancery first addressed the
validity of a post-signing market check in In re Fort Howard
Corp. Shareholders Litigation.94 In that case, Fort Howard’s
board, fearing that the company may be vulnerable to a
takeover attempt while its stock was temporarily depressed,
sought advice from its financial advisor, Morgan Stanley,
regarding steps the company could take to protect its
stockholders.95 Over the course of several meetings, Morgan
Stanley and Fort Howard determined that an LBO of the
company involving Morgan Stanley acting as a principal and
Fort Howard’s senior management also participating would
create a greater value than other alternatives.96 After
94
In re Fort Howard, 1988 WL 83147, at *1. Some commentators cite to a
preceding case, Yanow v. Scientific Leasing, Inc., 1988 WL 8772 (Del. Ch. Feb. 8, 1988),
as having first addressed the validity of a post-signing market check. Although the
merger agreement in that case contained a window shop provision and the target
company only seriously negotiated with one bidder prior to signing the agreement, the
plaintiffs did not specifically challenge the target’s reliance on a post-signing market
check but rather challenged the validity of the pre-signing auction process. Yanow,
1988 WL 8772, at *3-4. In particular, the plaintiffs challenged the target’s decision to
only negotiate with one bidder without having first conducted an auction or, at least,
having discreetly contacted third parties that had previously expressed an interest in
the target. Id. at *4. In addition, then-Vice Chancellor Jacobs also focused on the presigning market canvass in finding that although it was not clear that the market was
fully informed that the target was for sale, the “undisputed evidence [was] that for the
last two years, the relevant ‘players’ in the industry were aware that [the target] was
willing to (and, indeed, had) entertained acquisition proposals.” Id. at *6.
95
In re Fort Howard, 1988 WL 83147, at *2.
96
Id. During the initial meeting on March 30, 1988, Fort Howard’s CEO
asked about a wide range of transactions, including recapitalizations, spin-offs,
acquisitions and other transactions. Id. Morgan Stanley described the structure and
mechanics of different types of recapitalizations and then mentioned that an LBO of
the company with Morgan Stanley acting as a principal was also an alternative. Id. On
May 3, Fort Howard management requested Morgan Stanley to evaluate the company’s
possible alternatives and, three weeks later, Morgan Stanley presented a written
report at a meeting with management. Id. During this meeting, Morgan Stanley
indicated that in its opinion an LBO of the company would result in the greatest
2008]
545
management presented the LBO proposal to the board, the
board formed a special committee that initially elected to keep
the buyout proposal confidential, although the company later
issued press releases regarding the negotiations.97 The special
committee retained an independent financial advisor, who
advised that if the board accepted an LBO proposal, the
proposal should provide for a market test to determine whether
a third party could make a better offer.98
Ultimately, Fort Howard and the Morgan Stanley group
entered into a merger agreement that included a no shop
provision allowing Fort Howard to receive third party proposals
but prevented management from actively soliciting alternative
offers.99 The agreement also included a topping fee and expense
reimbursement provision capped at $67 million, which
represented 1.9% of the equity value of the transaction.100
Pursuant to the terms of the agreement, the tender offer would
be publicly known for thirty business days, or forty-three
calendar days.101 Thus, the agreement essentially provided for a
forty-three day market check period, which came to be
standard in transactions following Fort Howard.
Upon execution of the merger agreement, Fort Howard
issued a press release that announced the transaction and
specifically stated that management was available to receive
stockholder value and again stated that Morgan Stanley would be interested in
participating in such a transaction with Fort Howard’s senior management. Id.
97
Id. at *3-5. On June 22, 1988, after the company received a telephone
inquiry regarding a rumor that there was a buyout being negotiated, Fort Howard
issued a press release stating that “members of [Fort Howard’s] management intend to
seek a proposal with third parties to acquire the Company in a leveraged buyout.” Id.
at *5 (internal quotation marks omitted). On June 24, the company issued another
press release stating that it was engaged in negotiations with a group consisting of
members of its senior management and an affiliate of Morgan Stanley for an LBO, but
that there was no assurance that the transaction would come to fruition. Id. at *6-7.
98
Id. at *4-5. After receiving Morgan Stanley’s initial draft merger
agreement that included a proposal to purchase all of the outstanding company shares
for $50 per share and provided for a broad prohibition against shopping the company,
the special committee demanded a market test and indicated that it would not go
forward with the LBO unless there was time to test the market and there were fewer
restrictions on its ability to do so. Id. at *5-6. Among the other provisions in the initial
draft that the Special Committee rejected were provisions allowing for unspecified
break-up fees, unlimited expense reimbursement, and “a provision acknowledging
Morgan Stanley’s right to commence and complete any tender offer with[in] twenty
days from the announcement of its [definitive] agreement.” Id. at *5.
99
Id. at *7.
100
Id.; see also Morton & Houtman, supra note 27, at 2 (explaining the Fort
Howard deal’s protection provisions).
101
In re Fort Howard, 1988 WL 83147, at *6.
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inquiries from interested parties.102 Following the press release,
the company received eight inquiries from third parties, but
only two of the eight pursued the transaction further, including
a competitor of Fort Howard that ended up being the only third
party to seriously pursue a transaction with Fort Howard.103
When the competitor requested additional information beyond
the information provided to the other potential bidders, the
special committee expressed concerns that the competitor
would face significant antitrust problems and possibly
financing problems in acquiring Fort Howard.104 As a result
of these alleged concerns, the confidentiality/standstill105
agreement that the committee sought to have the competitor
execute contained several provisions that did not exist in the
Morgan Stanley confidentiality agreement. These provisions
included a fee of $67.8 million that the competitor would have
to pay if, after being provided with the additional confidential
information, the competitor did not make a bid, Morgan
Stanley’s tender offer did not close, and another bidder did not
appear.106
Fort Howard stockholders challenged the deal, arguing,
inter alia, that the independent committee had engaged in a
course of conduct that would never effectively allow it to shop
102
Id. at *7. In particular, the press release provided:
Notwithstanding its recommendation, and consistent with the terms of the
merger agreement, the Special Committee directed the Company’s
management and the First Boston Corporation to be available to receive
inquiries from any other parties interested in the possible acquisition of the
Company and, as appropriate, to provide information and, in First Boston’s
case in conjunction with the Special Committee, enter into discussions and
negotiations with such parties in connection with any such indicated interest.
Id. Following the press release, the Fort Howard transaction was prominently featured
in the business section of several publications, including the New York Times, Wall
Street Journal, and Los Angeles Times. Id. at *8.
103
Id. at *8. The Special Committee instructed its financial advisor to screen
the proposed bidders to determine if they were capable of completing a transaction of
this size. Id. After it was determined that all eight bidders could be considered serious
contenders, each received additional materials that had previously been provided to
Morgan Stanley. Id.
104
Id.
105
A standstill provision in a confidentiality agreement “prevents a
subsequent bidder who enters from becoming hostile to the target. The subsequent
bidder will typically be restricted from making a public tender offer and will, rather,
join a process in which the target's board is not only included, but will ultimately
choose its merger partner.” Block, supra note 23, at 93.
106
Id. at *9. During later negotiations, the special committee removed the
$67.8 million fee and offered another alternative that required the competitor to
submit a bid by August 5. Id.
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the company and that the market check period was really a
sham, pointing to the confidentiality/standstill agreement as
proof that the special committee favored the managementaffiliated transaction.107 In denying the plaintiffs’ request for a
preliminary injunction, then-Chancellor Allen noted that there
may be grounds for suspicion regarding the special committee’s
good faith, but under the totality of the circumstances, there
was not enough to find the shareholders’ argument
persuasive.108 Instead, Chancellor Allen focused on whether the
special committee’s post-signing market check was a mere
formality or whether it actually checked the market for
superior offers. The Chancellor blessed the post-signing market
check, finding that it “was reasonably calculated to (and did)
effectively probe the market for alternative possible
transactions” because it was not overly burdened by lock-ups,
termination fees, topping fees, time, or administrative
complications “to permit the inference that [the] alternative
was a sham designed from the outset to be ineffective or
minimally effective.”109 The court focused on the company’s
press release, the fact that a number of potential bidders
quickly expressed interest, and the company’s prompt provision
of information to bidders.110
Following its seminal decision in Fort Howard, the
Court of Chancery continued to consider the effectiveness of
post-signing market checks in a number of cases.111 The postsigning market checks of the late 1980s and early 1990s were
modeled after the Fort Howard market check and came to be
107
See id. at *10.
Id. at *12. Among other things, Chancellor Allen looked with suspicion on
the fact that the CEO, in effect, chose the members of the special committee and the
special counsel for the committee. Id.
109
Id. at *13. It is interesting to note, however, that Chancellor Allen found
the special committee’s initial decision to keep the management’s buyout proposal
secret to be suspicious, describing it as “a decision to sell the Company to management
if it would pay a fair price, but not to inquire whether another would pay a fair price if
management would not do so.” Id. at *12. Chancellor Allen explained that this decision
implied a bias on the part of the special committee. Id.
110
Id. at *13.
111
See, e.g., Kohls v. Duthie, 765 A.2d 1274, 1285 (Del. Ch. 2000); Goodwin v.
Live Entm’t, Inc., No. Civ.A. 15765, 1999 WL 64265, at *23 (Del. Ch. Jan. 25, 1999);
Matador Capital Mgmt. Corp. v. BRC Holdings, Inc., 729 A.2d 280, 291 (Del. Ch. 1998);
In re Vitalink Commc’ns Corp. S’holders Litig., Civ. A. No. 12085, 1991 WL 238816, at
*7 (Del. Ch. Nov. 8, 1991); Roberts v. Gen. Instrument Corp., Civ. A. No. 11639, 1990
WL 118356, at *8-9 (Del. Ch. Aug. 13, 1990); Braunschweiger v. Am. Home Shield
Corp., Civ.A. No. 10755, 1989 WL 128571, at *6-7 (Del. Ch. Oct. 26, 1989); In re KDI
Corp. S’holders Litig., Civ. A. No. 10,278, 1988 WL 116448, at *5 (Del. Ch. Nov. 1,
1988).
108
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characterized by termination fees ranging from 1.9% to 3.83%112
and, often times, press releases announcing, or at least
implying, that the company was open to receiving inquiries
from other bidders.113 In addition, in these transactions,
matching rights were not necessarily always provided to the
initial acquirer.114 There appears to have been a seven-year gap
during which the Court of Chancery was not presented with a
case involving post-signing market checks but the court began
to address them again in 1998.
2. In re Pennaco Energy, Inc.
More recently, in 2001, the Court of Chancery again
visited post-signing market checks in In re Pennaco Energy,
Inc.115 In that case, Pennaco Energy’s stockholders challenged
the board’s decision to not actively shop the company and to
112
See, e.g., Kohls, 765 A.2d at 1285 (refusing to enjoin a deal with a
termination fee of 2.25% of the equity value of the transaction); see also Kenetech
Corp., Agreement and Plan of Merger (Form 8-K, exhibit 2), at 1, 14, 44 (Oct. 26, 2000)
(filing Merger Agreement, dated October 25, 2000, containing capitalization
representation stating that 31,970,164 shares of common stock were issued and
outstanding, merger consideration of $1.04 per share and termination fee of $750,000);
Goodwin, 1999 WL 64265, at *20 (refusing to enjoin a deal with a termination fee equal
to 3.125% of the merger value plus $1 million in expenses for a total percentage of
4.16%); Matador Capital Mgmt., 720 A.2d at 291 (refusing to enjoin a deal with a
termination fee of approximately 3.83% of the equity value of the transaction); In re
Vitalink, 1991 WL 238816, at *7 (finding that a termination fee equal to 1.9% of the
equity value of the transaction did not prevent a market canvass); Roberts, 1990 WL
118356, at *9 (refusing to enjoin a deal with a termination fee equal to 2% of the equity
value of the transaction); Braunschweiger, 1989 WL 128571, at *7 (refusing to enjoin a
deal with a termination fee equal to $0.25 per share, or 1.9% of the equity value of the
transaction).
113
Compare Kenetech Corp., Press Release (Form 8-K, exhibit 99.1), at 1 (Oct.
26, 2000) (explicitly stating that Kenetech’s financial advisor was available to receive
unsolicited inquiries), and In re KDI, 1988 WL 116448, at *4 (summarizing a press
release stating that the target’s special committee and its financial advisor would
continue to be available to receive inquiries and would negotiate with third parties),
with Roberts, 1990 WL 118356, at *6 (quoting a press release stating that the
incumbent bidder would be paid a termination fee if the target receives an unsolicited
offer and accepts the offer in accordance with the board’s fiduciary duties), and
Braunschweiger, 1989 WL 128571, at *9 n.13 (quoting a press release stating that the
incumbent bidder would be paid a termination fee if the target’s board withdraws its
stockholder recommendation and accepts another offer in accordance with its fiduciary
duties). But see BRC Holdings Inc., Press Release (Form SC 14D1, exhibit 9), at 1 (Oct.
23, 1998) (filing a press release containing no indication, either explicit or implicit, that
the company was willing to entertain offers from third parties). The BRC Holdings
transaction became the subject of the litigation in Matador Capital Management, 729
A.2d at 291.
114
See, e.g., In re MCA, Inc. S’holders Litig., 598 A.2d 687, 693 (Del. Ch. 1991)
(no matching rights); In re Vitalink, 1991 WL238816, at *7, 10 (same); In re KDI, 1988
WL 116448, at *3 (same).
115
787 A.2d 691, 705-07 (Del. Ch. 2001).
2008]
549
rely exclusively on a post-agreement market check.116 Unlike
Fort Howard, Pennaco concerned a strategic transaction—not
an LBO. In November 2000, Pennaco and a subsidiary of
Marathon Oil entered into a confidentiality agreement after
Marathon expressed an interest in acquiring Pennaco.117 After
entering into the confidentiality agreement, Pennaco’s board
focused solely on Marathon and did not attempt to canvass the
market even though the confidentiality agreement did not
prohibit Pennaco from doing so.118 A little over a month after
entering into the confidentiality agreement, the parties
executed a merger agreement.119 The merger agreement
included a relatively non-restrictive no shop provision that
allowed Pennaco to speak with and provide information to any
third party who could reasonably “be expected to make a
superior offer that could be consummated without undue
delay.”120 In addition, Marathon was granted matching rights
that allowed Marathon a three-day period during which it
could match a superior proposal.121 The agreement also
contained a termination fee equal to 3% of Pennaco’s equity
116
Id. at 692.
Id. at 698.
118
Id. at 699. Pennaco also did not hire an investment bank to canvass the
market for it. Id. However, Pennaco’s management identified investment bankers for
possible retention should a transaction arise with Marathon or another party, and
Pennaco received pitch books from two of the banks that it contacted, including Credit
Suisse First Boston (“CSFB”). Id. CSFB provided Pennaco with preliminary valuation
analyses and indicated a range in value for Pennaco between $17.88 and $20.81 per
share. Id.
119
Id. at 702. After completing three weeks of due diligence, Marathon
submitted its initial bid of $17 per share. Id. at 700. The Pennaco board determined
that Marathon’s bid was too low, given CSFB’s preliminary valuation, and instructed
Pennaco’s CEO to reject the $17 offer and “to seek a price ‘north of $20 a share.’ ” Id. A
week after its initial offer, Marathon increased its bid to $19 per share. Id. at 701. The
board again met and instructed the CEO “to see if there was ‘any more room above the
$19 a share.’” Id. At that meeting, the board also hired Lehman Brothers as its
investment bank. Id. After Marathon indicated that $19 a share was its absolute best
and final offer, the board authorized Lehman to begin working on a fairness opinion
and discussed its fiduciary duties and possibilities for a post-agreement market check
with its outside counsel. Id. Lehman gave an oral presentation to the board regarding
its fairness opinion, during which it presented net asset valuations based on three
different “base cases,” the most aggressive of which produced a range of value of $15.14
to $18.89 per share. Id. at 702 (internal quotation marks omitted). Following its
presentation, Lehman gave an oral opinion that Marathon’s $19 per share offer was
fair and the board then formally approved a sale of Pennaco to Marathon at $19 per
share. Id.
120
Id.
121
See Pennaco Energy, Inc., Agreement and Plan of Merger (Form 8-K,
exhibit 2.1), at 38-39 (Dec. 27, 2000), (filing Agreement and Plan of Merger, dated as of
December 22, 2000, that included a three-business-day matching rights period in
Section 8.01(d)).
117
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value and slightly less than 3% of the value of its combined
debt and equity as measured by the transaction value.122
Furthermore, in order to allow sufficient time for third parties
to review the transaction and make competing offers, the
Pennaco board obtained an agreement from Marathon that it
would not commence its tender offer until the second week of
January 2001.123
In addressing the Pennaco stockholders’ challenges that
the Pennaco board breached their Revlon duties by solely
negotiating with Marathon and by relying on a post-agreement
market check with a termination fee, Vice Chancellor Strine
first noted that “one would not commend the Pennaco board’s
actions as a business school model of value maximization”
before finding that the board’s actions were reasonable.124
Strine validated the board’s single bidder strategy because the
board ensured that a post-agreement market check would occur
and because the termination fee and matching rights did not
act as substantial barriers to third parties.125 Although he
found the board’s actions to be reasonable, it is noteworthy that
Vice Chancellor Strine indicated that had the board agreed to
more onerous deal protection devices that prevented competing
bids from emerging, his decision would likely have been
different.126
3. In re MONY Group Inc. Shareholder Litigation
Three years after its decision in Pennaco, the Delaware
Court of Chancery again addressed the necessity of a presigning auction and the adequacy of a post-signing market
check in In re MONY Group Inc. Shareholder Litigation.127 Like
Pennaco, MONY also did not involve an LBO but rather a
122
In re Pennaco, 787 A.2d at 702, 702 n.16.
Id. at 703.
124
Id. at 705. In reaching the conclusion that the board’s actions were not
unreasonable, Strine relied on numerous factors, including: (1) Pennaco’s market
posture, including that the company was a “source of industry interest”; (2) Pennaco’s
recent search for a joint venture partner that had “brought the company to the
attention of twenty to thirty industry players”; (3) the company’s “reincorporation into
Delaware to facilitate its participation in the mergers and acquisitions market”; and (4)
the board members’ expertise and experience in the industry. Id. at 705-06.
125
Id. at 707 (holding that the fact that no higher bids emerged “is itself
‘evidence that the directors, in fact, obtained the highest and best transaction
reasonably available’” (quoting Matador Capital Mgmt. Corp. v. BRC Holdings, Inc.,
729 A.2d 280, 293 (Del. Ch. 1998)).
126
Id. at 707.
127
852 A.2d 9, 20-21, 23-24 (Del. Ch. 2004).
123
2008]
551
strategic transaction. In MONY, MONY Group Inc.
stockholders challenged the proposed stock-for-cash merger of
MONY and a wholly-owned subsidiary of AXA Financial, Inc.128
After MONY posted losses in 2001 and 2002, the company’s
board of directors authorized its CEO, Michael I. Roth, to
explore strategic opportunities but rejected the idea of a public
auction of the company.129 Approximately ten months after
Roth first met with AXA, MONY and AXA announced they had
signed a merger agreement pursuant to which MONY
stockholders would receive $31 cash for each share of MONY
stock.130 The merger agreement contained a window shop
provision which prohibited MONY from actively soliciting offers
during the five-month market check period but allowed the
board to pursue proposals that were, or were reasonably likely
to constitute, a more favorable business combination to
stockholders and that was reasonably capable of being
completed on the proposed terms.131 In addition, AXA was
granted a five-day period during which it could match a
superior proposal.132 The merger agreement also contained a
termination fee of $50 million, which represented 3.3% of
MONY’s total equity value and 2.4% of the total transaction
value.133 The MONY stockholders challenged the board’s
decision to forego a pre-signing auction or solicitation process
and also challenged the adequacy of the post-signing market
check.134
In finding that the board’s decision not to pursue a preagreement auction was reasonable, Vice Chancellor Lamb
stated that “[s]ingle-bidder approaches offer the benefits of
protecting against the risk that an auction will be a failed one,
and avoiding a premature disclosure to the detriment of the
128
Id. at 14-15.
Id. at 16. In November 2002, the board met with its financial advisor,
CSFB, to discuss MONY’s financial issues. Id. CSFB’s report to the board suggested
twelve potential partners and acquirers for MONY, including AXA Financial. Id.
130
Id. at 18. This price represented a 7.3% premium over MONY’s thencurrent trading price of $28.89. Id.
131
Id. at 23 n.31.
132
See The MONY Group Inc., Agreement and Plan of Merger (Form 8-K,
exhibit 2.1), § 9.1(h), at 59-60 (Sept. 18, 2003) (filing Agreement and Plan of Merger,
dated as of September 17, 2003, that included a five-business-day matching rights
period).
133
In re MONY, 852 A.2d at 18.
134
Id. at 20, 23.
129
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company’s then-ongoing business.”135 In addition, the court held
that the five-month period between the merger agreement
signing and the date on which the MONY stockholders brought
suit was more than adequate for a competing bidder to emerge
and complete due diligence.136
Although the Court of Chancery continued to scrutinize
the board’s activities in light of the totality of the
circumstances, there were a number of facts that differentiated
the more recent market checks validated in Pennaco and
MONY from the first market check that the court upheld in
Fort Howard.137 Unlike Fort Howard, neither Pennaco nor
MONY issued a press release explicitly stating that the target’s
management was available to field third party inquiries.138 In
addition, some practitioners have noted that the termination
fees upheld in both Pennaco and MONY were not only higher
than the Fort Howard termination fee but were also
significantly higher than termination fees contained in other
deals involving post-signing market checks in the absence of a
market canvass.139 Finally, unlike in Fort Howard, the initial
bidders in both Pennaco and MONY received matching rights
in the event of a superior third party proposal.140 A practitioner
135
Id. at 21. Vice Chancellor Lamb indicated that the MONY board considered
several factors in deciding not to engage in an active solicitation process. Id. These
factors included (1) the previous attempt by another company engaged in the same
industry whose business and stock market performance suffered after undergoing a
public auction; (2) the risk that MONY’s employees would seek alternative
employment; (3) the risk that competitors would gain a competitive advantage after
performing due diligence on MONY and would seek to employ MONY’s career agency
force; and (4) the knowledge that a post-agreement market check was a possibility. Id.
136
Id. at 23-24.
137
See Barkan v. Amsted Indus., Inc., 567 A.2d 1279, 1286 (Del. 1989) (stating
that a board’s actions “must be evaluated in light of relevant circumstances to
determine if they were undertaken with due diligence and in good faith”).
138
Compare text at supra note 102 (quoting a Fort Howard press release that
explicitly stated that management was available to field unsolicited third party offers)
with Pennaco Energy, Inc., Current Report (Form 8-K) (Dec. 27, 2000) (press release
that does not mention management’s availability to field unsolicited third party offers,
nor does the press release mention the inclusion of a window shop provision in the
merger agreement), and The MONY Group Inc., Current Report (Form 8-K) (Sept. 18,
2003) (same).
139
See Morton & Houtman, supra note 27, at 3-4 (noting that the Pennaco fee
of 3% and the MONY fee of 3.3% were higher than the Fort Howard fee of 1.9% and
were much higher than similar situations in the past involving a sale of control to a
single bidder without a pre-signing market canvass).
140
See The MONY Group Inc., Current Report (Form 8-K), at 59-60 (Sept. 18,
2003) (filing Agreement and Plan of Merger, dated as of September 17, 2003, that
included a five-business-day matching rights period in Section 9.1(h)); Pennaco Energy,
Inc., Current Report (Form 8-K), at 38-39 (Dec. 27, 2000) (filing Agreement and Plan of
2008]
553
at one Delaware law firm theorized that the differences
between Pennaco, MONY and Fort Howard are a result of
Pennaco and MONY involving strategic buyers while Fort
Howard involved an MBO.141 In any event, some commentators
believe that this liberalization of market checks paved the way
for the recent prevalence of the go-shop provision.142
D.
2004-2007: The Development of the Go-Shop
Until recently, the window shop provision was the
medium of choice for boards seeking to ensure the
maximization of stockholder value in the absence of a public
auction or targeted market canvass. Dealmakers rarely used
go-shop provisions, and when they chose to use them it was
generally only under special circumstances.143 Richard E. Spatt,
a partner at Simpson Thacher & Bartlett LLP, has indicated
that these “special circumstances” include situations “where an
insider or fiduciary/board member is the buyer” or where the
price terms of a deal have been renegotiated downward.144
The Delaware Court of Chancery first addressed goshops in its 1989 opinion, In re Formica Corp. Shareholders
Litigation.145 The go-shop provision in that case arose during
the MBO of Formica Corp. and permitted the unlimited
solicitation and negotiation of competing acquisition proposals
during the thirty business day, or forty-seven calendar day,
period that the tender offer was open.146 The deal, entered into
after a very limited market canvass, included a $5 million
termination fee representing approximately 2.14% of the equity
value of the transaction and a provision capping expense
Merger, dated as of December 22, 2000, that included a three-business-day matching
rights period in Section 8.01(d)).
141
See Michael K. Reilly, The Post-Agreement Market Check Revisited (Mar.
2004), available at http://www.potteranderson.com/news-publications-40-45.html
(arguing that differences between the three cases are a result of Pennaco and MONY
involving a strategic third party who may not be as familiar with the target and as a
result incurring higher sunk costs).
142
See Morton & Houtman, supra note 27, at 5 (stating that following
Pennaco and MONY post-signing market checks “began fading into the background
and a new approach—the go-shop provision—started to take hold”); see also Spatt,
supra note 13, at 33 (stating that go-shops are natural extensions of no shops).
143
See Spatt, supra note 13, at 33-40 (describing the rise of the go-shop
provision).
144
Id.
145
CIV.A. No. 10598, 1989 WL 25812 (Del. Ch. Mar. 22, 1989).
146
Id. at *8.
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reimbursement at $5.5 million.147 The press release announcing
the transaction explicitly stated that Formica’s financial
advisor had been instructed to “actively solicit competing
bids.”148
The stockholders challenged the post-signing market
test as being incapable of resulting in a meaningful auction,
arguing that the length of the market test period was an
insufficient time for incoming bidders to arrange complex
foreign financing.149 However, then-Vice Chancellor Jacobs
rejected this argument for several reasons. First, Jacobs noted
that bidders do not require foreign financing unless they need
debt financing and, even then, bidders could make their bids
subject to securing financing and temporarily finance the
acquisition using a bridge loan.150 Second, Jacobs stated that
there was “no evidence that any potential bidder . . .
complained that the . . . period [was] too truncated to enable a
bid to be made.”151 Finally, Vice Chancellor Jacobs compared
the go-shop provision to the no shop provision in Fort Howard
and found the facts of Formica to be “more compelling” because
the target could actively solicit potential bidders, the target’s
financial advisor had contacted 125 potential bidders and was
engaged in discussions with four of them, and “the market test
period [was] one week longer than the one employed in Fort
Howard.”152
Following Formica in 1989, only a handful of deals over
the subsequent decade and a half contained go-shops.153 This
147
In re Formica Corp. S’holders Litig., 1989 WL 25812, at *3-4, *8
(describing the exploratory discussions and the terms of the final merger agreement).
The special committee considered holding an auction but rejected the idea, fearing
that it may not end up with any bids. Id. at *6.
148
Id. at *7.
149
Id. at *12.
150
Id.
151
Id.
152
Id. The tender offers in Formica and Fort Howard both remained open for
thirty business days although the Formica tender offer was open for four calendar days
longer than the Fort Howard tender offer. Compare In re Fort Howard S’holders Litig.,
Civ. A. No. 9991, 1988 WL 83147, at *6 (Del. Ch. Aug. 8, 1988) (stating that the tender
offer would remain open for thirty business days or forty-three calendar days) with In
re Formica, 1989 WL 25812, at *8, *12 (stating that the tender offer would remain open
for thirty business days or forty-seven calendar days and such time constituted the
market check period).
153
See, e.g., Spatt, supra note 13, at 33 (indicating that the 1991 acquisition
by non-executive chairman of National Gypsum included a go-shop provision); Kemper
Corp., Current Report (Form 8-K), at 2-3 (July 1, 1994) (summarizing a merger
agreement allowing for a ten-day go-shop period with a bifurcated termination fee
pursuant to which Kemper could terminate the agreement in favor of a third party).
2008]
555
scarce use of go-shops is likely a product of the collapse of the
high-yield bond market and the resulting substantial decline in
LBOs in 1989 and 1990.154 Then, beginning in 2004, dealmakers
began including go-shops in a rising number of deals.155 During
2006, dealmakers included go-shops in at least fifteen deals.156
This sudden increased use of go-shops may lead one to
ask: what has changed that dealmakers are turning to goshops? The answer to this question is likely the result of a
combination of factors. As discussed in Part I, over the past
three years, there has been a resurgence in the number of
private equity firms entering the playing field.157 In contrast to
transactions with strategic players, private equity firms often
bring different considerations to the negotiating table. Private
equity firms frequently deal with targets that have not
necessarily considered themselves as being for sale.158 Private
equity firms, like other buyers, prefer having private
negotiations with the target company and thus often avoid
competitive auctions, which frequently result in increasing the
purchase price of the target.159 Accordingly, a private equity
firm may make its proposal contingent on the target not
shopping the deal prior to entering into a definitive
agreement.160 However, in return for abstaining from shopping
154
See Steven N. Kaplan, The Evolution of U.S. Corporate Governance: We Are
All Henry Kravis Now, J. PRIVATE EQUITY, Fall 1997, at 7, available at
http://faculty.chicagogsb.edu/steven.kaplan/research/govern.pdf (discussing the decline
of LBOs and the reasons for the decrease).
155
See, e.g., The Chalone Wine Group, Ltd., Current Report (Form 8-K) (Nov.
1, 2004) (filing merger agreement with a go-shop provision and press release
announcing Chalone may continue to solicit bids); Hollywood Entertainment Corp.,
Current Report (Form 8-K) (Oct. 14, 2004) (filing amended merger agreement with goshop provision and press release announcing that according to amended merger
agreement that included a renegotiated price, Hollywood Entertainment was permitted
to entertain competing proposals); US Oncology, Inc., Current Report (Form 8-K) (Mar.
22, 2004) (filing merger agreement with a go-shop provision and press release
announcing that US Oncology may continue to solicit competing bids).
156
See Morton & Houtman, supra note 27, at app. 7-18 (listing transactions
that included go-shop provisions in their agreements).
157
See supra Part. I (discussing increase in private equity deals).
158
See Peters et al., supra note 69 (“[A] target board may be faced with a
situation in which, although it has no intention to sell, it is approached by an
unsolicited bidder who makes an offer that the board is compelled to consider.”).
159
See Thomas J. Dougherty, Takeovers, in ALI-ABA COURSE OF STUDY:
SECURITIES LITIGATION: PLANNING AND STRATEGY 327, 330 (2007) (“[O]nce p-e [private
equity] players commit to a potential deal, they would rather proceed from a bear hug
offer that dazzles management through to deal closure with as little competitive
bidding as possible.”).
160
See, e.g., In re Lear Corp. S’holder Litig., 926 A.2d 94, 104 (Del. Ch. 2007)
(recognizing that the private equity buyer indicated that it would pull its bid if a “fullblown auction” were conducted).
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the deal pre-signing—and in recognition that the target board
has an obligation to fulfill its Revlon duties—private equity
firms will agree to go-shop provisions.161 Because the private
equity firm has secured its place as the initial acquirer it is
able to benefit from the other deal protection devices that the
agreement often contains, including termination fees and
matching rights. Furthermore, although the target is, in effect,
conducting an auction post-signing, go-shop periods are not
generally as long as public auctions.162 Therefore, the initial
acquirer is able to avoid a pre-signing bidding war, secure an
agreement and then the target is put on the auction block for a
more limited period.
In addition to the private equity buyers’ avoidance of
public auctions, the target board may harbor concerns that a
public auction or pre-signing market canvass will not be
effective in inducing bids when a private equity firm has
already made a proposal. Boards may fear that third parties
will be hesitant to compete with a buyout group that includes
target insiders, or that management may not cooperate with a
public auction because it is already aligned with the private
equity buyer.163 Furthermore, boards also may be concerned
about the market for corporate control’s perception that the
161
See Michael Weisser & Michael Cubell, Go-Shops: Are Sponsors Giving
Away the Store?, PRIVATE EQUITY ALERT (Weil, Gotshal & Manges LLP), Dec. 2006, at
1, 3-4, http://www.weil.com/wgm/cwgmhomep.nsf/Files/PEADec06/$file/PEADec06.pdf
(describing reasons that private equity buyers agree to go-shop provisions).
162
See Mills & Harsch, supra note 12, at 45 (recognizing the time differences
required for public auctions and typical go-shop periods).
163
See Stephen I. Glover & Jonathan P. Goodman, Go-Shops: Are They Here to
Stay?, M&A LAW., June 2007, at 1 (describing reasons boards may agree to go-shop
provisions when a private equity firm has made a buyout proposal). This argument
may have some weight, as Professor Guhan Subramanian, in an article summarizing
an empirical study of go-shop provisions, states that:
The fact that no higher bidder has emerged in an MBO go-shop to date
(after nearly two years of experience with go-shops, in a frenzied deal
environment) suggests that third parties may be wary of entering a
bidding contest, or that bankers might not conduct as thorough and
energetic a search, when management has already picked its preferred
buyout partner. A management team with difficult-to-acquire firmspecific skills and knowledge can use their inherent advantage to buy
the company from the public shareholders at a lower price, by
effectively committing to its favored buyout group and making clear its
unwillingness to work with any other buyout group that might emerge
during the go-shop process.
Guhan Subramanian, Go-Shops v. No-Shops in Private Equity Deals: Evidence and
Implications (forthcoming BUS. LAWYER, May 2008).
2008]
557
board itself is favoring the private equity buyer.164 In the
opinion of the board, the inclusion of a go-shop provision in the
final agreement helps to mitigate the perception that the board
or management may be biased in favor of the private equity
buyer.165
In addition to the increased role that private equity
firms are playing in the M&A world and the related issues that
LBOs and MBOs raise, stockholder activism also has been on
the rise.166 Stockholders are increasingly willing to challenge
deals that, in their opinion, do not maximize stockholder
value.167 Although stockholder suits overall have decreased in
recent years, suits challenging deals involving private equity
firms have doubled over the past three years.168 As a result,
boards are increasingly turning to go-shop provisions in an
effort to show that they have and are continuing to fulfill their
Revlon duties.169
E.
Typical Characteristics of Go-Shop Provisions
As mentioned previously, go-shops allow the target
company to actively solicit other bidders post-signing for a
limited period, generally ranging from fifteen to fifty days.170
Agreements containing go-shop provisions also typically
contain deal protection devices such as termination fees and
matching rights. Termination fees are often bifurcated; that is,
164
See Glover & Goodman, supra note 163.
See id.
166
See generally Battling for Corporate America—Shareholder Democracy,
THE ECONOMIST, Mar. 11, 2006, at 63 (describing an environment of shareholder
activism).
167
Christopher Palmeri, Saying No to an LBO, BUS. WEEK, July 23, 2007,
at 26.
168
Id.; see also Wong, Rival Bidders, supra note 22 (stating that stockholders
increasingly react with hostility toward private equity deals).
169
See Dan Freed, They’ve Shopped, But Haven’t Dropped: First-Half M&A
Sizzled, and the Second Half Is Already Off to a Fast Start. Is It Too Much of a Good
Thing?, INV. DEALERS’ DIG., July 9, 2007 (“The emergence of the ‘go shop’ appears to be
symptomatic of a larger concern among boards that they be seen as doing whatever
they can on behalf of shareholders.”); Glover & Goodman, supra note 163 (“Yet another
factor explaining the rise of the go-shop is increased shareholder activism by
institutional investors and hedge funds.”).
170
See Morton & Houtman, supra note 27 (providing a table listing
transactions containing go-shop provisions, including details regarding the length of
the go-shop periods). Typically, go-shop provisions do not limit who may be solicited
during the go-shop period. Glover & Goodman, supra note 163. However, in a few deals
targets have been limited to contacting a select group of strategic buyers or a limited
number of bidders generally. Id.
165
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a lower termination fee will apply during the go-shop period
than following the go-shop period. The lower termination fee
generally ranges from 40% to 60% of the base termination
fee.171 Some deals have allowed the lower termination fee to
apply only if the target terminated the original agreement
“prior to the expiration of the go-shop period,” while other deals
permit the lower termination fee to apply so long as the target
company terminated the original agreement in favor of a
superior proposal that was received during the go-shop
period.172 Go-shop provisions are also often paired with
matching rights, allowing the initial acquirer an opportunity to
match any bids received as a result of a target’s solicitation
during the go-shop period.173 Finally, following the expiration of
the go-shop period, target companies are subject to no shop and
fiduciary out provisions.174 Therefore, following the expiration
of the go-shop period, the target may no longer actively solicit
bids. Although the target may consider superior proposals, the
higher base termination fee would apply to bids received after
the expiration of the go-shop period.175
III.
EFFECTIVENESS OF GO-SHOP PROVISIONS AND
RECENT DELAWARE JURISPRUDENCE
A.
Intended Advantages and Related Criticisms of
Go-Shop Provisions
As the use of go-shop provisions increases, so has the
attention that the provisions are receiving from the M&A
community. Law firms have issued a number of client
memoranda discussing and often questioning the efficacy of goshops.176 The rise of the go-shop has not been lost on the
business press, which has also expressed skepticism regarding
171
See Glover & Goodman, supra note 163 (describing bifurcated termination
fees).
172
See Kevin M. Schmidt, Private Equity: Current M&A Issues for Buyers, in
EIGHTH ANNUAL PRIVATE EQUITY FORUM 99, 106, 110 (PLI Corp. Law & Practice,
Course Handbook Series No. 1614, 2007) (summarizing transactions containing
bifurcated termination fees).
173
See id. at 110 (describing recent transactions including go-shops and
matching rights).
174
See id. at 105, 106.
175
See id. at 106, 110.
176
See, e.g., Paul Kingsley & Mutya Harsch, Go-Shop Provisions: A New
Trend?, PRIVATE EQUITY NEWSL. (Davis Polk & Wardwell), Dec. 2006, at 1, available at
http://www.dpw.com/1485409/dpw/12_07_06_PrivateEquityNews_dec_06.pdf; Morton &
Houtman, supra note 27, at 6-7; Weisser & Cubell, supra note 161, at 4-5.
2008]
559
the benefits of go-shop provisions. In particular, commentators
have debated the effectiveness of go-shop provisions in
inducing third party bids and have questioned a board’s ability
to adequately fulfill its Revlon duties by utilizing the
provisions. This section seeks to summarize the purported
advantages and related criticisms of go-shops.
1. Effectiveness of Go-Shop Provisions in Inducing
Third Party Offers
One of the purported benefits of go-shop provisions is
that they enable the target company to have a form of
insurance in change of control transactions. In other words, goshop provisions allow the target to conduct an open auction,
but because a signed deal already exists, the target avoids the
risks involved with a potentially failed public auction.177
However, a full-blown pre-signing auction and a post-signing
auction are not created equal. In contrast to public auctions
where all bidders are on equal footing, post-signing market
checks, particularly those resulting from go-shop provisions,
provide several advantages to the incumbent bidder. The
foremost advantage is that the initial acquirer begins the
auction in first place and, thus, gains the benefits derived from
its first place position, including the traditional deal protection
devices contained in the definitive merger agreement.178
Therefore, critics argue that third party bidders are less likely
to emerge post-signing because of the protections conferred
upon the initial acquirer in the merger agreement.179 However,
proponents contend that go-shop provisions may be more
effective than traditional market checks because bidders are
more likely to emerge post-signing if they are actively
solicited.180
177
See Go-Shop, POCKET MBA (PLI), Aug. 8, 2007 (stating that go-shops
provide targets with the benefits of an open auction without risk).
178
See Kingsley & Harsch, supra note 176 (stating that the initial acquirer is
in an “enviable first place position as the preferred buyer”).
179
Id. at 7-8 (summarizing arguments that go-shop provisions do not induce
third party bidders).
180
Id. at 6-7 (stating that some proponents contend that third parties are
more likely to propose a bid post-signing if they are actively solicited to do so). In
addition, commentators point out that, in contrast to the typical fiduciary out provision
where companies have to wait for unsolicited superior proposals, “[g]reater
transparency and openness is accomplished when the target is allowed to actively
pursue other offers.” Block, supra note 23, at 108 (summarizing advantages and
disadvantages of go-shop provisions).
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Because go-shop provisions have traditionally been used
in LBOs and MBOs, critics assert that there are additional
reasons that the provisions are not successful in adequately
maximizing stockholder value. Specifically, they argue that
both private equity firms and strategic buyers may be hesitant
in making a proposal when the initial acquirer is a private
equity firm. In particular, some experts have suggested that
private equity firms operate on an unwritten gentlemen’s
agreement that they will not jump another private equity
firm’s signed deal.181 That is, they act on a sort of “what goes
around comes around” mentality, most likely because they tend
to engage in several deals a year, and the possibility exists that
they could see the same private equity firm on the next deal.182
Vice Chancellor Strine referenced this mentality recently,
stating that it is “a reality that there is not a culture of
rampant topping among the larger private equity players, who
have relationships with each other that might inhibit such
behavior.”183 Nonetheless, in the aggressive world of M&A
participants, it is hard to imagine that, given the right
circumstances, a private equity group would not jump a deal
for fear of future retribution, even if they consider it to be in
bad form to do so.184 In fact, it already appears as if the market
is heading in that direction. Recently, an affiliate of Apollo
Management L.P., a private equity firm, successfully jumped
181
See Janet Morrissey, A Private Equity Peak?, TIME, July 19, 2007 (stating
that the deal jumping among private equity firms is considered a faux pas and quoting
Chris Young, Director of M&A Research at Institutional Shareholder Services, as
saying, “It has long been suspected that there is an unwritten gentleman’s agreement
among private-equity firms to refrain from jumping each other’s deals”); see also Freed,
supra note 169 (noting that private equity firms have not outbid other private equity
firms in the context of a go-shop provision). Rob Kindler, Vice Chairman of M&A at
Morgan Stanley, has stated, “If boards are told go shops’ [sic] are likely to make other
private equity firms outbid a signed private equity deal, they’re being misinformed.” Id.
182
See Glover & Goodman, supra note 163 (stating that private equity firms
may be reluctant to jump a signed deal when they may see the other private equity
buyer in the next deal). The same sort of unspoken or unwritten gentlemen’s
agreement does not appear to exist among strategic players in today’s M&A
environment. Even the Court of Chancery has recognized that “strategic buyers have
not felt shy about ‘jumping’ friendly deals crafted between their industry rivals.” In re
Toys “R” Us, Inc. S’holder Litig., 877 A.2d 975, 1008 (Del. Ch. 2005). This is likely
because strategic buyers are not engaging in the same number of transactions as
private equity firms.
183
In re Lear Corp. S’holder Litig., 926 A.2d 94, 121 (Del. Ch. 2007).
184
Vice Chancellor Strine also has expressed doubt as to whether “such a
culture . . . can persist given the powerful countervailing economic incentives at
work.” Id.
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561
an MBO of EGL, Inc., a global freight transportation
provider.185
Like private equity buyers, strategic buyers may also be
hesitant in jumping a signed LBO or MBO. In particular,
critics argue that strategic buyers may decide not to jump
deals where the target company’s management is already
aligned with the private equity buyer who is planning to retain
management and who may be offering management additional
equity stakes following completion of the proposed
transaction.186 Therefore, a strategic buyer may harbor
concerns that it will not have enough time to assemble a
different management team or that its offer would not be
successful because it is not willing to offer management the
same potential benefits.187
Others simply contend that go-shop provisions are
unnecessary, pointing out that because of the media scrutiny
that going-private transactions receive, potential strategic and
financial buyers are fully aware that the target company is “in
play.”188 As a result, there is no need for the target company to
actively solicit bids post-signing and the boards can simply rely
on the traditional window shop provision.189
Still others point out that go-shop provisions make the
incumbent bidder a stalking horse for its own transaction
which they argue actually makes the target company more
desirable to third parties.190 In addition, the target company is
185
See EGL, Inc., Current Report (Form 8-K), May 24, 2007 (describing EGL’s
termination of a merger agreement with a CEO-led group and entry into a merger
agreement with an Apollo Management affiliate after EGL determined that the Apollo
affiliate’s offer constituted a superior proposal).
186
See Glover & Goodman, supra note 163; see also In re Netsmart Tech., Inc.
S’holders Litig., 924 A.2d 171, 198 (Del. Ch. 2007) (“[S]trategic buyers might sense that
CEOs are more interested in doing private equity deals that leave them as CEOs than
strategic deals that may . . . not.”). Vice Chancellor Strine has indicated that in
deciding whether to submit a bid, strategic buyers consider the profits that
management is likely to obtain in a proposed deal. See id.
187
See Glover & Goodman, supra note 163.
188
See Weisser & Cubell, supra note 161, at 3-4 (describing factors that initial
acquirers weigh before agreeing to go-shop provisions); Michael Weisser & Matthew
Cammack, Shepherding the Deal, THE DEAL, Mar. 30, 2007 (“[M]any question the
practical need of go-shop provisions, particularly when private equity deals grab
headlines and pricing and other material terms are often spelled out on the front pages
of financial and other publications, thus drawing competing bids with little or no
solicitation by the target.”).
189
See Weisser & Cubell, supra note 161, at 3-4; Weisser & Cammack, supra
note 188 (stating that because of the extensive publicity most private equity deals
have, competing bids are obtained with “little or no solicitation by the target”).
190
See Kingsley & Harsch, supra note 176 (describing the role the initial
acquirer assumes as a “stalking horse”).
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able to lock in a sale price. That is, the initial acquirer’s bid
sets the floor for any third party bids.191 However, incoming
third party bidders still must determine whether to submit a
bid while taking into account the value of the underlying
transaction and the related deal protection devices in the
signed agreement. Thus, to have an opportunity to be a
successful bidder post-signing, the third party’s bid must at
least meet the initial acquirer’s bid plus an additional amount
taking into account the termination fee for the transaction.192
Proponents of go-shops argue that the provisions may
actually aid the target in achieving maximum stockholder
value. They reason that once the initial acquirer agrees to
the inclusion of a go-shop provision, the initial acquirer is
incentivized to offer the highest possible price in order to avoid
a post-signing bidding war and the possibility that the deal
may be successfully “jumped.”193
2. Sufficiency of the Go-Shop Period in Preparing
Superior Proposals and Other Timing
Considerations Relating to Go-Shops
Commentators also consider the ramifications of the goshop period. For instance, some question whether a third party
has the legitimate opportunity to prepare a competitive
superior proposal during the limited go-shop period. For
example, a bid that is higher than the proposed transaction but
is contingent on “obtaining financing” would likely not be
deemed a superior proposal to a fully financed pre-existing
LBO.194 However, the typically limited duration of the go-shop
period may not provide a third party with sufficient time to
secure financing.195 Furthermore, there is a risk that financing
may not be available because the initial acquirer has already
191
See Andrew Ross Sorkin, Looking for More Money, After Reaching a Deal,
N.Y. TIMES, Mar. 26, 2006, at 34 (stating that initial acquirer acts as a “stalking horse”
and sets the base price for potential bidders).
192
For a further discussion of how termination fees work in practice, see
supra Part II.A.3.
193
See Glover & Goodman, supra note 163 (arguing that a small number of
topping bids may be due to an initial acquirer’s incentive to pay full price fearing that
the deal may be lost during a go-shop period).
194
See Dougherty, supra note 159, at 331 (“[I]f such competitors overbid
‘subject to obtaining financing,’ they run the risk that their premium priced bid will be
deemed ‘not-superior’ to the fully financed p-e bird in the hand.”).
195
See id. at 330 (stating that the typical go-shop period may not provide a
buyer with enough time to arrange financing).
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563
taken advantage of the existing financing opportunities or has
engaged the limited number of banks that can offer such a
financing package to the point where the banks are conflicted
from working with another buyer.196 Thus, in such a situation,
the go-shop provision will not result in a superior proposal.
In addition, the professed timing benefits of go-shop
provisions may not be that great. Go-shop provisions
purportedly allow parties to streamline the purchase process by
permitting parties to forego a public auction or pre-signing
market canvass. Instead, the parties can first enter into a
definitive agreement and then the target company can begin
the auction process while also working to satisfy the closing
conditions with the initial acquirer.197 However, critics point out
that go-shops force the target’s management to balance its time
between the post-signing auction and the fulfillment of closing
conditions, including the time-consuming tasks of proxy
preparation and other filing preparations.198 As a result,
although time may be saved on the front-end, critics contend
that the period between signing and closing may be longer than
in traditional post-signing market check situations.199
Another timing consideration is that by quickly entering
into a deal that includes a go-shop provision, the initial
acquirer may immediately begin taking steps towards closing,
including preparing regulatory filings and advancing the
stockholder approval process.200 Thus, the initial acquirer is
able to place itself in a position to be able to close the proposed
transaction faster than a third party that enters post-signing.201
As a result, go-shop provisions may have the unintended
impact of making the target’s management and board favor the
initial acquirer over a third party because the initial acquirer is
in a more competitive position to close the transaction.
196
See id. (“[A] financed competitive bid assumes that financing has not been
‘dried up’ in advance by a p-e bidder team that strategically pre-shopped financing
opportunities to the market’s main financing sources but not the bid itself.”).
197
Schmidt, supra note 172, at 107 (describing purported timing advantages
of go-shops).
198
See id.
199
Id.
200
See Mills & Harsch, supra note 12, at 46 (describing possible time benefits
for the initial acquirer).
201
See id.
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3. Effectiveness of Go-Shop Provisions in Reducing
Stockholder Litigation
As previously discussed, boards are turning to go-shop
provisions in an effort to avoid increasingly active stockholders
challenging proposed transactions and specifically challenging
whether the boards have fulfilled their Revlon duties. Some
commentators argue that the provisions allow boards to more
easily fulfill their fiduciary duties because they remain open to
higher offers.202 However, other commentators argue that the
provisions are illusory and that the provisions are simply
“window dressing,” the inclusion of which allows boards to
argue that they have fulfilled their duty to maximize
stockholder value although the boards may not be making
additional efforts to do so.203 It appears that go-shop provisions
will not shield boards from stockholder suits as two recent
Delaware Court of Chancery cases demonstrate: in both cases
the stockholders challenged the adequacy of the market check
when the boards relied on the inclusion of go-shop provisions.
B.
Recent Delaware Court of Chancery Decisions Allowing
Companies to “Shop Like Paris Hilton”204 During
Extended Store Hours
Despite expressing skepticism regarding the value of goshop provisions less than three months earlier at the Tulane
Corporate Law Institute, Vice Chancellor Strine issued two
back-to-back opinions that, like then-Vice Chancellor Jacobs’
decision nineteen years earlier in Formica, seemingly blessed
the use of go-shop provisions as a technique for maximizing
stockholder value.205
1. In re Topps Co. Shareholders Litigation
The first, In re Topps Co. Shareholders Litigation,
involved the Michael Eisner-led private equity buyout of Topps
202
See Block, supra note 23, at 108 (detailing arguments in favor of go-shops).
See id. at 108-09 (describing criticisms of go-shop provisions).
204
In re Topps Co. S’holders Litig., 926 A.2d 58, 86 (Del. Ch. 2007).
205
See David Marcus, The New Auction Rules, DAILY DEAL, Apr. 16, 2007
(stating that Vice Chancellor Strine recognizes that go-shops “rarely produce much of
anything for anyone, including shareholders”); David Marcus, Auctions, Conflicts and
Go-shops, Oh My!, DAILY DEAL, Apr. 20, 2007 (recounting the highlights of the 2007
Tulane Corporate Law Institute conference and describing Vice Chancellor’s Strine’s
statements regarding go-shops provisions).
203
2008]
565
Co., a manufacturer of baseball cards and the distributor of
Bazooka gum.206 Although the deal was not technically an
MBO, the Eisner proposal ensured the retention of the majority
of the company’s key employees and senior management,
including the CEO and Chairman’s son-in-law who served as
the company’s President and Chief Operating Officer.207 Topps’s
ten-member board included three directors nominated by an
insurgent stockholder whom Strine referred to as the
“Dissident Directors” because the three directors did not agree
with the “Incumbent Directors” on many issues, including the
Eisner proposal.208
Under Eisner’s proposal, a pre-signing auction or
market check was not acceptable although Eisner was willing
to accept a go-shop provision.209 As a result, the merger
agreement included a provision that “gave Topps the chance to
shop the bid for 40 days after signing, and the right to accept a
‘Superior Proposal’ after that, subject only to Eisner’s receipt of
a termination fee and his match right.”210 The agreement also
included a bifurcated termination fee that amounted to 3.0% of
the transaction value during the go-shop period and 4.6% of the
transaction value after the go-shop period.211
The board formed an executive committee, which
consisted solely of the five Incumbent Directors, to evaluate
offers during the go-shop period.212 The only responsibility the
entire board, including the Dissident Directors, had with
respect to the go-shop period was to evaluate whether a
competing offer was actually a superior proposal or was likely
to become one.213 At the beginning of the go-shop period,
Topps’s financial advisor “contacted 107 potential strategic and
financial bidders, [of which] five expressed interest in Topps
206
In re Topps, 926 A.2d at 60-61 (describing Topps’s business and the merger
agreement between Eisner and Topps).
207
Id. at 60, 61, 73-74. This is of particular consequence because Topps had
previously been the subject of a proxy contest designed to remove three directors,
including CEO and Chairman, Arthur Shorin, who was also the grandson and nephew
of the company’s founders. Id. at 60-61, 68. In fact, Eisner first approached Shorin
during the proxy contest. Id. at 61, 68.
208
Id. at 61. The board approved the Eisner merger 7-3, with the Dissident
Directors making up the three dissenting votes. Id. at 71.
209
Id. at 61, 70.
210
Id. at 61.
211
Id. at 66.
212
Id. at 71. The board formed the executive committee after the majority of
the board determined that the Dissident Directors could not sufficiently represent the
company’s interests because they had voted against the Eisner merger. Id.
213
Id.
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and began a due diligence review.”214 The only bidder that
seriously continued to pursue Topps was Upper Deck—the one
true competitor of Topps—who submitted a bid two days before
the expiration of the go-shop period.215 The Topps board met
after the go-shop period expired and determined that Upper
Deck was not an “Excluded Party” under the terms of the
agreement, which would have allowed Upper Deck and Topps
to continue talks past the expiration of the go-shop period.216
The Topps board based its decision on concerns regarding
Upper Deck’s ability to finance the transaction, the risk that
the transaction may be delayed or prevented by antitrust
authorities, and Upper Deck’s failure to sufficiently assume the
antitrust risk and the small reverse termination fee proposed
by Upper Deck.217 Following the board’s decision, Upper Deck
made a new, unsolicited offer that was accompanied by a letter
from Upper Deck’s financial advisor and potential lender
stating that it was “highly confident” that it could finance the
transaction.218 Upper Deck’s new proposal also offered to divest
key licenses if required to do so by antitrust regulators and also
was accompanied by an antitrust expert’s letter addressing
Topps’s unspecified antitrust concerns.219 The Topps board
determined that the unsolicited offer was not a superior
proposal for similar reasons.220 The board also rejected Upper
Deck’s request to be released from the standstill agreement
that prevented Upper Deck from making public any
information about its discussions with Topps and also
prevented Upper Deck from launching a tender offer for Topps
shares without the Topps board’s permission.221
214
In re Topps, 926 A.2d at 71.
Id. The Upper Deck bid was for $10.75 cash per share, $1 more per share
than the Eisner proposal. Id. Upper Deck’s proposed merger agreement was based on
the Eisner merger agreement but deleted all representations and warranties relating
to Upper Deck’s ability to finance the merger, deleted a covenant requiring Upper Deck
to divest assets in order to obtain regulatory and antitrust approvals, and included an
affirmative right not to be required to divest assets in order to obtain regulatory
approval. Id. In addition, Upper Deck included a “due diligence out” provision pursuant
to which Topps would have to provide Upper Deck with any additional information that
Upper Deck requested and that conditioned the transaction on Upper Deck’s
satisfactory review of due diligence. Id.
216
Id. at 72.
217
Id.
218
Id.
219
Id. at 90.
220
Id. at 72-73.
221
Id. at 62.
215
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567
Although Vice Chancellor Strine granted Upper Deck’s
motion for a preliminary injunction, Topps “won” with respect
to the deal protection devices, including the go-shop provision,
which Strine found to be reasonable.222 Despite his earlier
questioning of go-shops,223 Strine did not acknowledge that the
Delaware courts had not addressed these provisions in recent
years, nor did he cite to Formica in upholding the go-shop
provision. Instead, Strine appeared to treat the go-shop
provision as if it were a Fort Howard post-signing market
check and stated that because the board had not performed a
pre-signing market check, it properly obtained a go-shop
provision.224
Strine indicated that go-shops may be useful in inducing
other bids because the existence of a “credible, committed”
initial acquirer may act as a form of “sucker’s insurance” for
others to take the leap and submit a bid.225 Thus, Strine
adopted the argument urged by proponents of go-shops that the
provisions foster positive psychological effects in helping to
stimulate bids.226 In addition, Vice Chancellor Strine stated
that although Eisner had been granted a matching right, the
right was not a barrier to other bidders because matching
rights have been overcome in the past.227 Strine also recognized
that although a target might want a longer go-shop period or a
lower break-up fee, the deal protection devices “left reasonable
room for an effective post-signing market check. For 40 days,
the Topps board could shop like Paris Hilton.”228
Although Strine did not scrutinize the board’s reliance
on a go-shop provision, he looked at the board’s actions during
the go-shop period more closely. Strine found that the board’s
222
Id. at 86-87, 93.
See supra note 205 and accompanying text (describing Strine’s questioning
of go-shop provisions).
224
In re Topps, 926 A.2d at 86.
225
Id. at 87.
226
Id.
227
Id. at 86.
228
Id. Pursuant to the terms of the agreement, after the expiration of the goshop period, Topps could no longer talk to bidders “unless the bidder had already
submitted a ‘Superior Proposal’ or the Topps board determined that the bidder was an
‘Excluded Party’” (i.e., a party that the board determined was “reasonably likely to
make a Superior Proposal”). Id. at 65. Topps could also consider bids after the forty-day
period, if the bid was a superior proposal or was “reasonably likely to lead to one.” Id.
Strine also found that if a bidder felt as if it needed more time, it could obtain the
information it needed during the go-shop period and then submit an offer after the
period expired and resume the process. Id. at 86-87. Thus, Strine seemed to imply that
the two periods worked in tandem to create a longer go-shop period. See id.
223
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decision not to treat Upper Deck as an “Excluded Party” so that
it could negotiate further with Upper Deck after the go-shop
period was “highly questionable” and suggested that the
Incumbent Directors favored Eisner who promised to retain
management.229 Strine further criticized Topps’s lack of a good
faith effort to negotiate with Upper Deck and Topps’s misrepresentation of facts regarding Upper Deck’s offer that were
included in Topps’s public disclosure, including public criticism
of Upper Deck’s offer.230 Furthermore, Strine determined that
Topps’s refusal to release Upper Deck from the standstill
threatened Topps’s stockholders’ informed decision-making
because Upper Deck was unable to tell its own version of the
story.231 As a result, Strine granted a preliminary injunction
delaying the merger vote until Topps granted Upper Deck a
waiver of the standstill so that that Upper Deck could make a
tender offer and communicate with Topps stockholders.232
2. In re Lear Corp. Shareholders Litigation
A day after Topps, Vice Chancellor Strine issued a
second opinion, In re Lear Corp. Shareholders Litigation, in
which the Vice Chancellor again issued a preliminary
injunction delaying the merger vote until additional disclosure
could be made, but blessed the parties’ inclusion of a go-shop
provision in the merger agreement.233 That case stemmed
from a Carl Icahn-led LBO of Lear Corp., a troubled company
in which Icahn had obtained a 24% holding in 2006.234 In
November 2006, concerned about his personal financial
security, Lear’s long-time CEO, Robert E. Rossiter, approached
Lear’s compensation committee about accelerating his retirement benefit payments which had a fully vested value of $14.6
million.235 The compensation committee hired a compensation
229
In re Topps, 926 A.2d at 89-90. Strine also emphasized that when Upper
Deck proposed a materially higher price than the Eisner proposal, the board seemed
“more bent on coming up with obstacles to securing that higher value” rather than
reacting with enthusiasm at the possibility of enhancing stockholder value. Id. at 88.
230
Id. at 91.
231
Id. at 92.
232
Id. at 92-93.
233
In re Lear Corp. S’holder Litig., 926 A.2d 94, 97-98 (Del. Ch. 2007).
234
Id. at 97, 100. Icahn planned to use an affiliated entity, American Real
Estate Partner, LP, to consummate the transaction. Id. at 102.
235
Id. at 100. The retirement benefits would vest in 2011 when Rossiter
turned 65; however, Rossiter could access $10.4 million of his SERP benefits by mid2007 if Rossiter retired. Id.
2008]
569
consulting firm that “presented five potential options to allow
Rossiter to liquidate his retirement assets quickly while
keeping his job.”236 The consulting firm indicated that no matter
which option Rossiter were to choose, he was likely to face
criticism from investors for accelerating his own benefits
during a difficult period for the company.237 Rossiter, however,
did not have to choose among the five options because, in
January 2007, Icahn proposed a going-private transaction in
which existing management would be retained.238 The special
committee that was formed following Icahn’s proposal allowed
Rossiter to negotiate price terms without the presence of Lear’s
financial advisor or the special committee.239
The Lear board debated whether the company should
engage in a formal auction but ultimately rejected the idea
fearing that it would disrupt business and that, more
importantly, Icahn may pull his offer as Icahn had indicated
that he would do if the company engaged in a full-blown
auction.240 The board instead directed Lear’s financial advisor
to engage in a four-day limited pre-signing canvass by
contacting eight financial buyers who had an interest in the
automotive sector, the industry in which Lear engages.241 Five
of the financial buyers who were contacted expressed “tepid
‘maybes,’” but none made a preliminary proposal or expressed
a desire to pursue due diligence.242 A few days after the limited
market canvass, Lear entered into a merger agreement with
Icahn that included a forty-five day go-shop provision and
fiduciary out that allowed Lear to accept a superior proposal
following the expiration of the go-shop period.243 In addition, the
agreement contained a bifurcated termination fee amounting to
2.79% of the equity value of the deal if the agreement was
terminated during the go-shop period, or 3.52% of the deal
equity value if the agreement was terminated following the
expiration of the go-shop period.244 Icahn also was granted
236
Id. at 100-01.
Id. at 101.
238
Id.
239
Id. at 102-03.
240
Id. at 104.
241
Id. at 104-05.
242
Id. at 105.
243
Id. at 105, 107.
244
Id. at 107. The agreement also provided that a termination fee was payable
if the Lear board withdrew its recommendation for the merger or failed to reconfirm its
support for the merger if it were requested to do so. Id.
237
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matching rights which allowed Icahn ten days to determine
whether to increase his offer to match a superior proposal.245
Lear’s financial advisors began to contact potential buyers as
soon as the merger agreement was executed.246 They contacted
a total of forty-one potential buyers, twenty-four financial
sponsors and seventeen strategic buyers, of which only eight
buyers entered into confidentiality agreements to begin due
diligence.247 However, unlike in Topps, none of the buyers
contacted ultimately made a preliminary bid nor did Lear
receive any unsolicited bids during the go-shop period.248
Lear stockholders sought a preliminary injunction
arguing that the Lear board did not disclose all material facts
necessary for the stockholders to decide whether to approve the
merger and that the Lear board failed to make a reasonable
effort to maximize stockholder value.249 With respect to the
Revlon claims, Strine stated that Rossiter should have
informed the board of Icahn’s proposal earlier and that the
special committee should have taken a larger role in the
negotiation process, particularly in light of Rossiter’s personal
interests in the going-private transaction.250 However, Strine
concluded that the overall approach taken by the special
committee appeared to have been reasonable.251 In finding that
the Lear board’s decision not to engage in a full public auction
was reasonable, Strine indicated that Lear’s elimination of its
poison pill and Icahn’s investment in Lear were signals to the
market that it was “perfectly obvious that Lear was open to
invitations.”252
Vice Chancellor Strine likewise rejected the plaintiffs’
argument that the go-shop provision combined with the other
deal protection devices had the effect of chilling bids.253
However, in reaching that determination, Strine admittedly
245
In re Lear, 926 A.2d at 108. Icahn’s offer was for $36 per share. Id. at 105.
If the superior proposal was greater than $37 per share, Icahn only had one chance to
match. Id. at 108. However, if the superior proposal was not greater than $37 per
share, Lear had to give Icahn “three days to match each successive [superior] proposal.”
Id. If Icahn decided not to match a superior proposal, Icahn agreed to vote his block of
shares in favor of the superior proposal. Id.
246
Id. at 105.
247
Id. at 106.
248
Id. at 106-07.
249
Id. at 109-10.
250
Id. at 118.
251
Id.
252
Id. at 118-19.
253
Id. at 120.
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571
gave the bifurcated, or two-tiered, termination fee “relatively
little weight.”254 Strine acknowledged that most bidders would
have been able to take advantage of the lower termination fee
offered during the go-shop provision because it required the
third party to “get the whole shebang done within the 45-day
window.”255 Strine found that the 3.52% termination fee was
reasonable because it was not of the level that would deter a
serious bid.256 Strine treated Icahn’s matching rights similarly
stating that matching rights “are hardly novel” and have been
upheld even when coupled with termination fees.257
Like his decision in Topps, Vice Chancellor Strine
treated the Lear plaintiffs’ disclosure claims with skepticism.258
Although Strine was careful to say that Rossiter did not act
inappropriately, Strine found that Rossiter’s personal
motivations for favoring a going-private transaction should
have been included in the proxy statement.259
3. Impact of Topps and Lear
Although Strine continually stresses that Court of
Chancery decisions are not intended to create bright-line rules
254
Id. at 119.
Id. at 119-20. To take advantage of the lower termination fee, Strine stated
that the third party would have to
255
do adequate due diligence, present a topping bid with a full-blown draft
merger agreement, have the Lear board make the required decision to
declare the new bid a superior offer, wait Icahn’s ten-day period to match,
and then have the Lear board accept that bid, terminate its agreement with
Icahn, and “substantially concurrently” enter into a merger agreement with
it. All of these events had to occur within [the forty-five-day go-shop
provision] . . . .
Id. at 119.
256
Id. at 120.
Id. In reaching this conclusion, Strine relied on the defendants’ citation of
over fifteen transactions that were jumped despite a termination fee exceeding 3%
paired with matching rights. Id. at 120 n.21; see also The AREP Defendants’
Memorandum of Law in Opposition to Plaintiffs’ Application for a Preliminary
Injunction at 28-29, In re Lear, 926 A.2d 94, 2007 WL 2125317. The majority of the
deals cited by defendants involved traditional no shop and window shop provisions
rather than go-shop provisions. Affidavit of Daniel R. Fischel, exhibit O, In re Lear, 926
A.2d 94, 2007 WL 2801493.
258
In re Lear, 926 A.2d at 114-15.
259
Id. at 114. On July 16, 2007, Lear’s stockholders voted against the Icahn
buyout. See Lear Corp., Current Report (Form 8-K, exhibit 99.1) (July 17, 2007) (filing
press release announcing that Lear stockholders had voted against the Icahn merger).
This stockholder vote represents only the eighth U.S. deal (out of more than 1000 U.S.
deals requiring consent) that stockholders have voted against since 2003. See Terry
Kosdrosky, Lear Vote Is Big Bet on Detroit, WALL ST. J., July 17, 2007, at A2.
257
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that dealmakers must follow in every deal, Strine’s cursory
review of the go-shop provisions in Topps and Lear send a
signal to dealmakers that go-shops are acceptable provisions to
depend upon in future transactions.260 However, as the next
section details, the effect of go-shop provisions is likely not that
different than that of traditional post-signing market checks
with respect to value maximization. In fact, both sale methods
reveal that the Delaware courts are moving in the opposite
direction from the purer bidding process announced in Revlon.
IV.
SHOPPING DURING “EXTENDED STORE HOURS”: NOT SO
DIFFERENT FROM NOT SHOPPING AFTER ALL
Although commentators have noted Strine’s cursory
review of the go-shop provisions in Topps and Lear, they have
failed to recognize Strine’s implicit recognition that we have
come full circle since the 1980s when the Delaware Supreme
Court announced that the board should act as auctioneers in
sale of control transactions. Neither in Formica, nor in Lear
and Topps, did either vice-chancellor draw a distinction
between go-shop provisions and the post-signing market checks
blessed in the Fort Howard line of cases that relied on deal
protection devices, such as no shop and window shop
provisions.261 I contend that this was not simply an oversight on
the part of the Delaware Court of Chancery. Instead, it reflects
the simple acknowledgment that despite all of the hoopla
surrounding the recent prevalence of go-shop provisions, and
the questioning of their effectiveness, the end result of the go260
See Sheri Qualters, Strine Theory, NAT’L L.J., July 30, 2007, at 1
(summarizing Vice Chancellor Strine’s opinion that deal tactics must change as
companies’ circumstances change). Strine’s cursory review and failure to differentiate
go-shops from no shops may well be a result of the lag time that frequently occurs
between the use of a particular deal mechanism and the courts’ opportunity to review
the mechanism. Because of the dynamic nature of M&A and the fact that dealmakers
are often utilizing new deal tactics and new twists on transaction structures before
they are blessed by the courts, many deals close prior to the courts having an
opportunity to review the actions of dealmakers. In a similar context, Professor
Edward R. Rock has commented that as a result of this lag time, Delaware courts are
placed in the position of not being able to deem the dealmakers’ tactics or new
transaction structures per se illegal. Rock, supra note 7, at 1096-97 (theorizing that
because of the significant number of MBOs in the 1970s and 1980s, by the time the
Delaware Court of Chancery could have an “opportunity to articulate standards,” the
court could not find MBOs per se illegal). Beyond finding a particular deal tactic per se
illegal, Delaware courts are presented with the situation where the actions or tactics
used in a deal are not necessarily ideal but the courts may be hesitant to issue an
injunction without a great showing of unreasonableness.
261
For a discussion of the Fort Howard line of cases, see Part II.C.
2008]
573
shop provision is the same as the post-signing market check
with respect to value maximization.
As described previously, a no shop provision with a
fiduciary out, or a window shop provision, does not allow the
active solicitation of third party offers. However, a no shop
accompanied by a fiduciary out permits a target board to
participate in negotiations with a third party who submits an
unsolicited offer that is, or may become, a superior proposal. In
contrast, the go-shop provision allows the active solicitation of
such offers and effectively moves the auction process to the
post-signing. However, these facial dissimilarities are where
the differences between the two sale methods end.
Targets have relied exclusively on both the post-signing
market check and go-shop provisions in situations where they
have negotiated solely with one bidder pre-signing, or
conducted only a limited pre-signing market canvass, as in Fort
Howard, Pennaco, MONY, Lear, and Topps. According to one
survey, which analyzed thirty transactions including go-shop
provisions, the target companies in nearly every transaction
surveyed did not first conduct a pre-signing market canvass
prior to entering into the merger agreement.262 Similarly,
Delaware courts have upheld post-signing market checks when
the target did not first conduct a pre-signing market canvass.263
Thus, the same criticisms regarding the favoritism of boards
and management and resulting bid chilling effects of go-shop
provisions can be equally applied to post-signing market
checks. For example, the possibility remains that using go-shop
provisions to fulfill a board’s Revlon duties could “permit
management to insulate its last period decisions from the
constraint of the market for corporate control.”264 There is a risk
that management and boards who may have ulterior motives
could use go-shop provisions to go with the suitor of their
choice rather than the bidder who may present a superior offer.
Stated differently, go-shop provisions present the danger of
allowing a board to “hide” behind a go-shop despite not having
shopped the company pre-signing. However, the same risks
exist in the now standard post-signing market check situation,
262
See Morton & Houtman, supra note 27, at 1 n.1 (describing results of
survey).
263
See, e.g., In re MCA, Inc. S’holders Litig., 598 A.2d 687, 693 (Del. Ch. 1991)
(upholding reliance on post-signing market check after initial merger agreement was
publicly negotiated for two months and no other bidders came forward).
264
Griffith, supra note 40, at 1963.
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and the Delaware Court of Chancery addressed such
allegations of favoritism in Fort Howard.265
Moreover, critics’ arguments that go-shops are
ineffective at inducing superior proposals because of barriers to
entry that a signed transaction present also hold true in
situations where the target relies only on a post-signing market
check. Like third parties who are contacted during a go-shop
period, third parties that enter during a post-signing market
check also encounter deal protection devices like termination
fees and matching rights and also are constrained by the preclosing period. The Delaware courts, however, address only
whether these mechanisms are too onerous that they would
completely prevent bidders from “jumping” in post-signing.
In fact, as we have seen, the continuing trend in the
Delaware courts is to consider the sale process as a whole and,
in particular, the reasonableness of the board’s decisions in
light of the totality of the circumstances. As the Delaware
courts have done since the 1980s, Lear and Topps demonstrate
the courts’ continued focus on the role of management in
negotiations. For example, the courts scrutinize whether there
were conflicts of interest present and whether the
management’s decisions were motivated by entrenchment.266
Although the Delaware courts may express skepticism and
suspicion regarding a board’s or special committee’s actions,
the courts are, in effect, powerless to prevent such an action
without a very persuasive showing of bad faith by the
plaintiffs.267 The same powerlessness applies no matter if a
post-signing market check or a go-shop provision is utilized to
determine whether the board has selected the best deal for the
target’s stockholders.268 Instead, the Delaware courts tend to
265
See In re Fort Howard Corp. S’holders Litig., Civ. A. No. 9991, 1988 WL
83147, at *10-11 (Del. Ch. Aug. 8, 1988) (summarizing plaintiffs’ arguments that the
special committee favored the management-affiliated transactions).
266
See supra Part III.B.
267
See, e.g., In re Fort Howard, 1988 WL 83147, at *12-13 (finding the good
faith of the special committee to be suspect, but that the committee’s actions were not
enough to indicate bad faith); see also supra note 108 and accompanying text
(describing Chancellor Allen’s suspicion in Fort Howard of the CEO’s and special
committee’s activities and Allen’s finding that the showing of bad faith was not
sufficient).
268
Although it is beyond the scope of this Article, what really may be needed
in order to curb the possibility of a board or management’s own selfish greed is, in the
words of former U.S. Securities and Exchange Commission Chairman Donaldson,
a change in mindset—one that fosters not only a “culture of compliance” but
also a company-wide environment that fosters ethical behavior and decision-
2008]
575
use their decisions to comment on behavior that they find to be
suspicious so that dealmakers will tend to shy away from such
activity in future transactions.269
As a result of this trend in Delaware jurisprudence, over
the past two decades we have moved from an initial focus on
fully shopped deals that include fiduciary outs simply to ensure
that the directors do not violate their post-signing fiduciary
duties, to a more exclusive reliance on the fiduciary out model
to sell the company. We then moved from the fiduciary out
model to go-shop provisions that in effect allow an auction to be
conducted post-signing. This movement appears to be in direct
opposition to Revlon where the Delaware Supreme Court
chastised the parties for ending a heated bidding contest and
held that a fiduciary out must be included in the definitive
agreement. Although Revlon seemed to be the start of a trend
towards fostering a more competitive bidding process, the
Delaware courts’ decisions allowing much, if not all, of the sale
process to take place post-signing does not foster such a heated
bidding process when deal protections in the merger agreement
act to discourage bids. Realistically, what board of directors
would not be inclined to rely on go-shop provisions in the
making. Creating that culture means doing more than developing good
policies and procedures . . . . It means instilling an ethical culture—a
company-wide commitment to do the right thing, this time and every time—
so much so that it becomes the core of what I call the essential “DNA” of the
company.
William H. Donaldson, Chairman, SEC, Remarks to the National Association of
Securities Dealers (May 12, 2004), transcript available at http://www.sec.gov/news/
speech/spch051204whd.htm.
269
See Rock, supra note 7, at 1095-96 (stating that the advisory opinion-like
nature of Delaware opinions are helpful to dealmakers in planning transactions, but
they are problematic because of their fact-specific nature); Qualters, supra note 260,
at 1 (quoting Vice Chancellor Strine as stating, “People learn from the cases, that’s
what’s good about them . . . . It’s a low-cost opportunity.” (internal quotation marks
omitted)). Professor Rock has theorized:
This reactive stance, combined with what I claim to be a fairly self-conscious
attempt by the courts to shape the standards of conduct in a rapidly
developing transactional form, may be the driving force behind judicial
attempts to surpass it. Thus, the “preachiness” of Delaware MBO opinions,
the pattern of criticizing conduct even when no injunction is issued, and
judges’ extrajudicial utterances can all be read as attempts to be heard on a
critical matter in the absence of a case raising just the right issue and in the
absence of the articulation (or articulability) of a governing rule. Such
utterances are, in a literal sense, advisory opinions.
Rock, supra note 7, at 1095.
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absence of a public auction or targeted market canvass?270 The
long-term implications of the go-shop provision could very well
be that the pre-signing public auction or more limited market
canvass may go by the wayside as the Delaware courts have
allowed such processes to be conducted post-signing.
V.
CONCLUSION
In many ways we have come full circle since the merger
wave of the 1980s and the Delaware Supreme Court’s
landmark opinion in Revlon. The 1986 ruling in Revlon
appeared to begin a movement toward a “pure” auction process
that would result in achieving the best possible price for
stockholders. The Delaware courts have recognized that a
public auction or, at least, a targeted market canvass that
occurs pre-signing, are the best ways to achieve value
maximization. These methods allow potential buyers to bid on
a target company before deal protection devices and other
concerns work to inhibit bidding. However, less than two years
after Revlon, the Delaware Court of Chancery authorized the
almost exclusive reliance on no shop provisions coupled with
fiduciary outs, or, in other words, a post-signing market check,
to achieve value maximization. The Delaware courts have
continued to validate these post-signing market checks while
focusing on the sale process as a whole.
Over the past three years, the passive post-signing
market check has given way to go-shop provisions allowing
target companies to actively shop themselves post-signing,
when they would have otherwise been prevented from doing so.
In effect, these provisions permit targets to extend their “store
hours” and have moved the auction process post-signing.
Critics have attacked these provisions as ineffective at
maximizing stockholder value for various reasons, including
that the provisions do not induce bids because of pre-existing
deal protection devices and because the provisions allow target
companies to favor the initial bidders, who are often private
equity firms that are seeking to retain management or are
providing management with certain compensation packages or
270
An exception likely exists for small micro-cap companies, who after the
Delaware Court of Chancery’s ruling in Netsmart, need to engage in a more complete
targeted market canvass rather than rely on a post-signing market check as a sale
method. For a discussion of sale methods with respect to micro-cap companies, see
supra notes 83-85 accompanying text.
2008]
577
other incentives following closing. This Article contends,
however, that the end result of the go-shop is really no
different from the more passive post-signing market check that
permits a company to terminate the agreement in favor of a
superior proposal but does not allow the target to actively shop
the company. The same criticisms can apply equally to both
sale methods and active bidding can be inhibited due to deal
protection devices when either sale method is utilized. The
implications of this movement in Delaware jurisprudence
toward reliance on post-signing market checks and go-shops
results in the failure to use methods that encourage an active
bidding process and the maximization of stockholder value.
Because the Delaware courts do not focus on these sale
processes but rather only check that the methods used are not
so onerous that they would result in locking up a transaction,
the courts have shifted their attention away from the policies
promoted by Revlon. The exclusive reliance on go-shop
provisions to sell a company and achieve the highest price for
stockholders signals the death of the movement toward a purer
competitive bidding process that first began over twenty years
ago in Revlon.
Can Religious Influence
Ever Be “Undue” Influence?
Jeffrey G. Sherman†
[T]here are no instances where men are so easily imposed upon as at
the time of their dying, under pretense of charity . . . .
Attorney-General v. Bains1
The short answer to my title’s question is “yes.” The
longer answer is, well, longer. The Lord Chancellor’s quoted
remark about charity and deathbed susceptibility reflects our
law’s longstanding uneasiness with eleventh-hour charitable
bequests and our courts’ struggle to differentiate between a
testator’s own independent charitable impulses and those
imposed on her by an outsider playing upon her fears or
weakness. The Bains case itself involved an improperly
executed will.2 The defective will contained a charitable
bequest, and the Chancellor was asked to rule that the bequest
was nonetheless effective (as an appointment), presumably
because of the longstanding judicial policy favoring transfers to
charity.3 He refused.4 A lack of proper execution may suggest
†
Professor of Law, Chicago-Kent College of Law, Illinois Institute of
Technology. A.B., 1968, J.D., 1972, Harvard. In writing this Article, I have benefited
greatly from the advice and wisdom of Daniel Hamilton and Steven Heyman, and I am
grateful for their assistance. And I should like to thank the Marshall D. Ewell
Research Fund for supporting my work on this project.
1
Prec. Ch. 270, 272, 24 Eng. Rep. 131, 131 (1708). A similar—indeed,
possibly identical—case is reported as Attorney-General v. Barnes, Gilbert Eq. Ca. 5, 25
Eng. Rep. 4 (1708).
2
Strictly speaking, the term “will” states a legal conclusion about a
document: that the document has been validated (provisionally, at least) by a probate
court. Until such validation occurs, the document is only a “purported will.” See, e.g.,
Stephen v. Huckaba, 838 N.E.2d 347, 350 (Ill. App. 2005). Similarly, until a purported
will is admitted to probate, the maker of that will is not a testator but only an
“apparent testator.” See, e.g., Russell v. Wachovia Bank, N.A., 633 S.E.2d 722, 726
(S.C. 2006). In the interests of simplicity, however, I shall follow custom and use only
the words “will” or “testator” in this Article except in those instances where “purported
will” or “apparent testator” is necessary to avoid ambiguity.
3
See GARETH JONES, HISTORY OF THE LAW OF CHARITY 1532-1827, at 3-4
(1969). Jones writes:
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that a testator was subjected to undue influence at the time her
will was written,5 and the Chancellor implied by his remarks
that the presence of a charitable bequest in the will made the
suggestion of undue influence—and therefore of invalidity—
more plausible rather than less.
An extreme, but not unrepresentative, example of the
circumstances the Chancellor had in mind can be found in the
facts of In re Estate of Hee.6 The testator, Louis Hee, was an
elderly man living alone and in extreme ill health.7 Indeed, he
was bedridden, and none of his relatives lived nearby.8 A few
months before Hee’s death, some members of the Jehovah’s
Witnesses called at his home to interest him in their literature
and religious beliefs, and their visits were soon followed by
other members on a similar mission.9 (Hee had never been and
never became a member of the Jehovah’s Witnesses.10) One of
these visitors, John Hartley, Jr., proceeded to prepare for Hee’s
signature a will making the Watch Tower Bible and Tract
Society of Pennsylvania (the parent organization of the
Jehovah’s Witnesses) Hee’s sole legatee.11 Some seventy-five
days before Hee’s death, Hartley, accompanied by two other
members of Jehovah’s Witnesses, traveled to Hee’s home and
obtained his signature on the will.12 Hartley immediately sent
the executed will to the main office of the Watch Tower Bible
Many privileges were [in the years before the Reformation] granted to the
charitable legacy which were denied to the private legacy. For example, no
charitable legacy was allowed to fail because it was too indefinite, and
generous rules of construction were developed to cure the uncertainty. So, a
testator who had bequeathed [personal] property ‘to the church’ was deemed
to have bequeathed it to his parish church . . . .
Id. at 5. As to privileges accorded charitable legacies under more recent law, see infra
notes 74-76 and 85.
The frustratingly brief published report of Bains does not clearly explicate
the petitioner’s argument for validating the charitable transfer. Nonetheless, the
Chancellor’s quoted remark strongly—albeit circumstantially—supports my
assumption that the petitioner directly or indirectly invoked this policy of favoritism
toward charities.
4
Bains, Prec. Ch. at 272, 24 Eng. Rep. at 132.
5
See, e.g., Ashbel G. Gulliver & Catherine J. Tilson, Classification of
Gratuitous Transfers, 51 YALE L.J. 1, 4-5 (1941).
6
Hartley v. Toth (In re Estate of Hee), 252 So. 2d 846 (Fla. Dist. Ct. App.
1971).
7
Id. at 847.
8
Id.
9
Id.
10
Id.
11
Id.
12
Id.
2008]
CAN RELIGIOUS INFLUENCE EVER BE "UNDUE"?
581
and Tract Society of Pennsylvania.13 No copy of the will was left
with the testator, and indeed no disclosure of the will’s
existence was made until after Hee’s death.14 Hee’s siblings
contested the will on the ground of the undue influence of
Hartley and others, and quite appropriately the siblings
succeeded.15
For centuries, Anglo-American courts and legislatures
entertained suspicions of gifts to charities generally and to
religious charities in particular. During the late middle ages, a
time when the culture at large was deeply religious, these
suspicions amounted to outright hostility generated by the
fears of the feudal aristocracy.16 Later, as notions of
testamentary freedom took hold, two other concerns replaced
the feudal ones. First, lawmakers began to have misgivings
about the amount of wealth that charitable bequests removed
from the stream of unimpeded commerce:
[B]y the specious pretence of charity, the solicitations of [potential
charitable donees], and the pride and vanity of donors, it is to me
highly probable, that too great a part of the lands in this kingdom
may soon come to be [held in perpetuity by charitable foundations],
to the prejudice of the nation in general, and to the ruin or unjust
disappointment of many a man’s poor relations . . . .17
And second, they were concerned that “the church was
taking advantage of . . . the [deathbed] fears of the faithful for
its own aggrandizement.”18 These concerns, for the welfare of
the commonwealth and for the security of testators, led
Parliament and many American legislatures to enact statutes,
13
Id.
Id.
15
Id. at 848.
16
See infra text accompanying notes 24-51.
17
These words were spoken by a member of the English House of Lords in a
1736 floor debate on a piece of legislation that barred charitable devises of land. See
JONES, supra note 3, at 110-11. For a discussion of this 1736 legislation, see infra text
accompanying notes 103-111.
18
A.H. Oosterhoff, The Law of Mortmain: An Historical and Comparative
Review, 27 U. TORONTO L.J. 257, 267 (1977). Indeed, “some [eighteenth century]
legislators expressed a distrust of the clergy and a belief that a failure to control
conveyances in trust for charitable uses would result in a renewal of death-bed vigils
on the part of ambitious clerics.” Id. at 282. These concerns were not without historical
foundation. As early as the thirteenth century, in response to a papal decree, English
testators who bequeathed nothing ad pias causas (for pious purposes) “might be denied
the Eucharist and interred in unconsecrated ground.” JONES, supra note 3, at 3.
14
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[Vol. 73:2
often called mortmain statutes, placing limits on testamentary
transfers to charity.19
Between 1976 and 1998, the last eleven American
mortmain statutes were repealed or overturned,20 but their
repeal did not reflect any observed changes in human nature.
On the contrary, the human frailties that had prompted the
statutes’ original enactment continued to mar the legal
landscape as before. The statutes were repealed because they
were unworkable, not because they were unnecessary.
Undergirding the repeal movement was a belief that the law of
undue influence could be relied upon to prevent, in individual
cases, the kinds of imposition that the mortmain statutes’
broader brush was designed to reach.21 But the law of undue
influence can serve as an adequate substitute for mortmain
statutes only if courts treat the influence of charitable or
religious actors with the same wariness as they exhibit with
secular, avowedly materialistic actors. And, unfortunately,
courts have sometimes displayed an inappropriate indulgence
19
“Mortmain” means “dead hand” in the Anglo-Norman variant of French
spoken in England during the Late Middle Ages. The most widely accepted explanation
of the term’s invention and application is that given by Lord Coke:
[T]he true cause of the name and the meaning thereof was taken from the
effects as it is expressed in the statute itself . . . so as the lands were said to
come to dead hands as to the lords for that by alienation in mortmaine they
lost wholly their escheats, and in effect their knights-service for the defense
of the realme, wards, marriages, reliefes and the like; and therefore was
called a dead hand, for a dead hand yeeldeth no service.
1 EDWARD COKE, A COMMENTARY UPON LITTLETON subdiv. 2.b (Phila., Robert H. Small
1853) (15--?) (quoted in Oosterhoff, supra note 18, at 259).
The “dead hand” metaphor enjoys continued vitality today, but its
application has been broadened to include all the posthumous influences of testators.
See generally ARTHUR HOBHOUSE, THE DEAD HAND (1880); Adam J. Hirsch & William
K.S. Wang, A Qualitative Theory of the Dead Hand, 68 IND. L.J. 1 (1992); Gareth H.
Jones, The Dead Hand and the Law of Trusts, in DEATH, TAXES AND FAMILY PROPERTY
119 (Edward C. Halbach, Jr. ed., 1977). (Actually, “dead hand” is more of a synecdoche
than a metaphor.)
20
See infra note 124.
21
See, e.g., In re Estate of Kinyon, 615 P.2d 174, 175 (Mont. 1980) (noting
that the annulment of the state’s mortmain statute “in no way abandons these
safeguards [the prevention of overreaching by charities and the protection of the
interests of relatives] since existing law is sufficient to prevent the abuses at which the
mortmain statute was directed”); Mary F. Radford & F. Skip Sugarman, Georgia’s New
Probate Code, 13 GA. ST. U. L. REV. 605, 669-70 (1997) (explaining the reasons for
Georgia’s repeal of its mortmain statute). See Oosterhoff, supra note 18, at 294-95.
Writing in 1951, one scholar argued that mortmain statutes should be retained and
their prevalence increased because “[t]he legal principles of fraud, undue influence, or
mental incapacity have not and do not meet the problem.” G. Stanley Joslin, Legal
Restrictions on Gifts to Charities, 21 TENN. L. REV. 761, 763 (1951) (punctuation
altered).
2008]
583
toward the former. While the old mortmain statutes
themselves would be anachronisms in today’s estate planning
climate of nonprobate transfers22 and split-interest giving,23
American law still has much to learn from them as it confronts
charitable bequests procured in dubious circumstances.
In Part I of this Article, I shall discuss the long but
ultimately unsatisfactory career enjoyed by mortmain statutes
as bulwarks against undue religious or charitable influence. In
Part II, I shall discuss the law of undue influence generally.
And in Part III, I shall discuss how traditional undue influence
law has fallen short in the context of religious bequests and
how traditional law can be strengthened by a rule declaring
that all relationships between a testator and her religious or
spiritual advisor are per se “confidential relationships” for
purposes of litigating any will contest. Such a rule would
largely shift to the proponent of the will the burden of
producing evidence supportive of the will’s validity.
I.
MORTMAIN STATUTES: THE TRADITIONAL LEGISLATIVE
SOLUTION
A.
Early English Mortmain Law: A Public Law Response
While American mortmain statutes were private law
devices designed to protect the expectations of a charitably
inclined testator’s family, the English mortmain restrictions
began life as public law devices with a political purpose:
protecting the feudal aristocracy.24 Under English law at the
time of feudalism, all land was said to be held of the King.
Every other person who had the right to occupy and cultivate a
piece of land possessed that right only as a tenant—either a
22
Today, a decedent’s nonprobate transfers, such as life insurance and
revocable inter vivos trusts, generally govern more of her property than a traditional
will, John H. Langbein, The Nonprobate Revolution and the Future of the Law of
Succession, 97 HARV. L. REV. 1108, 1108 (1984), and mortmain statutes were often held
to apply only to wills and not to nonprobate transfers. See, e.g., Kent v. Katz (In re
Estate of Katz), 528 So. 2d 422, 426-27 (Fla. Dist. Ct. App. 1988) (held not to apply to a
revocable inter vivos trust); In re Will of Frank, 383 N.Y.S.2d 777, 779-80 (App. Div.
1976) (same).
23
“Split-interest” trusts—that is, trusts in which one interest (say, a life
income interest) is granted to or retained by an individual and another interest (say,
the remainder interest) is granted to a charity—have become popular estate planning
instruments to take advantage of favorable valuation rules to lessen the impact of
transfer taxes, particularly for unmarried property owners who cannot avail
themselves of the estate tax marital deduction. See, e.g., F. Ladson Boyle, Evaluating
Split-Interest Valuation, 24 GA. L. REV. 1, 2-3, 28-40 (1989).
24
See Oosterhoff, supra note 18, at 296.
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tenant of the King himself or a tenant of another tenant of
(another tenant of) the King25—and, as a condition of his
continued tenure, he owed certain obligations to the person
from whom he held that right (that is, his lord).26
The most common form of feudal land tenure was
“knight service,” pursuant to which the tenant owed military
service to or on behalf of his lord. While historians have noted
considerable variations in local customs, there seems to have
been some agreement that a single knight’s fee should
normally have comprised sufficient acreage to generate an
annual income of about £20, so a tenant with sufficient acreage
to produce, say, £60 of annual income would have owed his lord
the service of three knights: the service of three fully armed
horsemen to serve in the army for 40 days in the year in time of
war.27 But of even more value to the lord than these obligations
of military service were a number of financial obligations,
known as the incidents of knight service. Among the most
important of these feudal incidents were aids (a right to
demand money from the tenant in certain circumstances of
need),28 relief (a right to payment of a certain sum of money
when an adult heir to the land assumed his inheritance upon
the death of the prior tenant),29 wardship (a vendible right,
25
F.W. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 24
(Cambridge Univ. Press 1979) (1908). But see SUSAN REYNOLDS, FIEFS AND VASSALS:
THE MEDIEVAL EXPERIENCE REINTERPRETED (1994) (critiquing the conventional
understanding of feudalism as a coherent, distinctive socio-legal system).
26
MAITLAND, supra note 25, at 25. If a named tenant’s lord was not the King
himself but rather some other tenant of the King or a tenant of another tenant of the
king, the lord of that named tenant was known as a mesne or intermediate lord. If a
named tenant’s lord was the King himself, then there was no mesne lord and the
tenant was one of the King’s tenants in chief (or tenants in capite). Id. at 24.
27
Id. at 25-26. “[T]he division of land into districts, each with an allotted
quota of men and material, is a simple and obvious device; we find, for example, in
1679 that an act in Virginia required each district to provide one man armed and
mounted for service in the Indian wars.” THEODORE F.T. PLUCKNETT, A CONCISE
HISTORY OF THE COMMON LAW 514 (5th ed. 1956) (citing Virginia Statutes at Large, ii,
434, 435).
28
MAITLAND, supra note 25, at 27.
[T]he lord can legitimately demand aid . . . from his tenant when [the lord] is
in need of money. The aid has been considered as a free-will offering, but one
which ought not to be refused when the demand is reasonable . . . [In the
Magna Carta, King] John was compelled to promise that he would exact no
aid without the common counsel of the realm save in three cases, namely in
order to make his eldest son a knight, in order to marry his eldest daughter,
and in order to redeem his body from captivity . . . .
Id.
29
Id.
2008]
585
arising upon the death of a tenant leaving a minor child as
heir, to enjoy the profits from the land until the child attained
the age of twenty-one (if male) or fourteen (if female)),30
marriage (a vendible right to sell the ward (that is, the
deceased tenant’s minor child) in marriage),31 and escheat (the
right to recover the tenanted land if the tenant died without an
heir).32
In general, a feudal lord cared very little about who his
tenant was at any time, so long as he could be sure that the
tenant had the means to meet his feudal obligations, and the
ancillary rules of land law reflected the aristocracy’s
indifference as to the tenant’s identity and its insistence on his
material sufficiency. The system of primogeniture, which by
the twelfth century had become the customary form of descent
in England, assured the lord that his new tenant (the deceased
tenant’s eldest son, to the exclusion of all other children of the
decedent) would have the same means of providing knight
If the tenant in knight service having an inheritable estate died leaving an
heir of full age, that heir owed a relief for his land . . . a sum due on his
taking up the fallen inheritance. . . . [Lords sometimes used the occasion to
demand that the heir] buy the land at nearly its full price.
Id. Eventually, it became common for the relief for a knight’s fee to be £100. Id.
30
Id. at 28.
If the heir of a military tenant is under the age of twenty-one, being male, or
fourteen, being female, the lord is entitled to wardship—to wardship of the
body of his tenant, to wardship of the land also. This means that he can enjoy
the lands for his own profit until the boy attains twenty-one or the girl
fourteen. He is bound to maintain the child and he must not commit waste,
but within these limits he may do what he likes with the land and take the
profits to his own use—and this profitable right is a vendible commodity:
wardships are freely bought and sold.
Id. At least one authority maintains that the relevant age for females was sixteen, not
fourteen. See Oosterhoff, supra note 18, at 265.
31
See MAITLAND, supra note 25, at 28.
[T]he lord can dispose of the ward’s marriage, can sell his ward in marriage.
The only limit to this is that the match must be an equal one; the ward is not
to be disparaged, married to one who is not his or her peer. At first
apparently all that the lord claims is that his female tenant shall not marry
without his consent—a demand which is reasonable enough while the
military tenures are great realities:—my female tenant must not carry the
land which she holds of me to a husband who is my enemy. But the right has
grown far beyond this reason:—it is now [i.e., the end of Edward I’s reign]
extended to males as well as females, and the marriage of every ward is a
vendible commodity.
Id.
32
See id. at 29 (“If the tenant died without an heir[,] the land escheated, that
is, fell back to the lord—it became his to do what he pleased with.”).
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service as his deceased ancestor had, since the land would
never be subdivided upon the ancestor’s death.33 Further, under
primogeniture, land was not subject to devise at all,34 except in
certain privileged cities such as London.35 But, starting in
about the year 1200, land was freely subject to inter vivos
alienation, even in derogation of an eldest son’s expectations,36
and the problems of mortmain originally arose in this inter
vivos context.
Two types of inter vivos land transfers particularly
threatened the feudal lord’s interests. The first was
subinfeudation, the creation of a subtenancy by a tenant.37 The
subinfeudating tenant would transfer to another person a
portion of the land that he held of his lord, thereby becoming
an inferior lord to whom the new grantee owed feudal
obligations.38 Subinfeudation created a risk for the original lord
that his original tenant would, after the partial conveyance,
have insufficient remaining assets to meet his original feudal
obligations.39 At the behest of the feudal aristocracy, therefore,
Parliament, as part of the famous Statute Quia emptores,40
barred all subinfeudation but authorized alienation by
substitution.41 A tenant could no longer convey part of his
estate but could convey all of it by means of a substitution of
holders of the tenancy:42 a substitution that presumably
preserved the lord’s feudal rights.43
The second kind of inter vivos conveyance that
threatened the feudal lord was a conveyance to the Church,44
33
See PLUCKNETT, supra note 27, at 527.
A.W.B. SIMPSON, A HISTORY OF THE LAND LAW 54 (2d ed. 1986). Personal
property could be bequeathed, but jurisdiction over wills of personalty was vested in
ecclesiastical courts, not in the secular courts. MAITLAND, supra note 25, at 523;
PLUCKNETT, supra note 27, at 740-41; JONES, supra note 3, at 4.
35
JONES, supra note 3, at 6 n.7.
36
PLUCKNETT, supra note 27, at 528-29.
37
J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 257 (3d ed.
1990).
38
Id.
39
PLUCKNETT, supra note 27, at 540.
40
18 Edw. 1, c. 1 (1290) (Eng.).
41
BAKER, supra note 37, at 298; PLUCKNETT, supra note 27, at 540.
42
Oosterhoff, supra note 18, at 269.
43
If the tenant in question was a tenant in chief of the Crown, restrictions on
inter vivos alienation remained, notwithstanding Quia emptores. See PLUCKNETT,
supra note 27, at 542.
44
Strictly speaking, the Church qua Church was not a corporation capable of
holding title to property. Instead, title might be held by “the Bishop of Ely” in his
capacity as Bishop, or by “the Abbey of S. Albans” as such. See MAITLAND, supra note
25, at 510. Remember, therefore, that whenever I use a phrase like “Church property,”
34
2008]
587
known as a conveyance in mortmain.45 An ecclesiastical tenant
could certainly furnish a lord with hired knights on horseback,
just as a secular tenant could, but the Church could not marry,
have offspring, or die. Thus, a conveyance by a human tenant
to the Church, though it did not deprive the lord of continued
knight service,46 did deprive him of valuable future incidents of
relief, wardship, marriage, and escheat. The feudal aristocracy
was particularly concerned about collusive gifts of land to the
Church, whereby a tenant could evade his feudal obligations
and deprive the lord of the lord’s due by ostensibly granting
lands to the Church while retaining the right to occupy and the
right to demand a regrant of the land.47 The Great Charter of
1217 explicitly barred such collusive transfers,48 and then, some
sixty years later, the 1279 Statute of Mortmain (De viris
religiosis)49 barred all alienations in mortmain—whether
collusive or not—and the penalty for such attempted
conveyances was declared to be forfeiture to the lord of the
fee.50 Transfers to secular corporations were likewise
considered alienations in mortmain and barred by the 1279
I am referring to any of various properties held by particular religious officers or
houses, rather than to assets held by an organization known as “the Church.”
45
See ARTHUR R. HOGUE, ORIGINS OF THE COMMON LAW 257 (1986); see also
supra note 19.
46
See HOGUE, supra note 45, at 25. While “knight service” was a common
form of tenure even for ecclesiastical officers or houses, an exceptional form of
ecclesiastical tenure—frankalmoign—existed until it was all but abolished by the
Statute Quia Emptores in 1290. SIMPSON, supra note 34, at 10-11.
Sometimes religious bodies and religious persons, monasteries, bishops,
parsons, hold land for which they do no earthly service to the lord. They are
said to hold by way of free alms, free charity, per liberam elemosynam, in
frankalmoign. The theory of tenure however is saved by the doctrine that
they owe spiritual service, that they are bound to pray for the soul of the
donor who has given them this land, and this duty can be enforced by
spiritual censures in the ecclesiastical courts.
MAITLAND, supra note 25, at 25.
47
Evelyn Brody, Charitable Endowments and the Democratization of
Dynasty, 39 ARIZ. L. REV. 873, 900 (1997).
48
BAKER, supra note 37, at 277; PLUCKNETT, supra note 27, at 541.
49
7 Edw., stat. 2, c. 13 (1279) (Eng.).
50
Id. The ecclesiastical grantee’s title was not void; it was merely voidable at
the instance of the lord or of his lord. That is, termination of the grantee’s title required
a positive act by the lord or by the King. Moreover, a license to alienate in mortmain
could, without much difficulty, be purchased from the King, Brody, supra note 47, at
900, and such licenses were in fact granted “lavishly.” PLUCKNETT, supra note 27,
at 542. If an alienation in mortmain was made without the purchase of a license, but
no lord thereafter exercised in fact his right of entry to undo the conveyance pursuant
to the 1279 statute, the grant in mortmain was deemed to have been impliedly licensed
through waiver of the right of entry. Oosterhoff, supra note 18, at 268.
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statute inasmuch as corporations, like ecclesiastical houses,
never die or marry or have children.51
Thus, the original mortmain statute was designed to
protect the feudal aristocracy as a class,52 not to protect the
lord’s heirs from disinheritance as individuals.53 What
protected the lord’s heirs (or at least the lord’s eldest son) from
disinheritance were the rules of primogeniture and the lack of
any right of testation. But change was afoot that would soon
expose heirs to a risk of disinheritance: the development of the
“use.” The use may have begun its existence as a device for
circumventing primogeniture.54 For example, if A owned land
and wanted to transfer it at death to all his sons equally
instead of to his eldest son only, A could convey the land inter
vivos to B and his heirs to the use of A for life and then, upon
A’s death, to the use of A’s sons. Such a conveyance had the
added benefit of insulating A from the feudal incidents owed to
A’s lord inasmuch as the incidents attached only to the
transmission of a legal estate.55 But not only did the use permit
circumvention of primogeniture and feudal obligations, it
effectively permitted testation where none had been permitted
before, since A could convey the land to the use of anyone, not
just to the use of his sons. Indeed, a landowner could convey
land to a feoffee during his lifetime to such uses as he might
declare in his yet-to-be-executed will.56 Consequently, by the
early fifteenth century, most land in England was held in use,57
and landowners became accustomed to making the equivalent
of testamentary transfers. Finally, in 1540, freeholders in land
were granted the power to devise it without going through the
rigmarole of enfeoffment to uses.58
51
See HOGUE, supra note 45, at 74.
The statute, in its opening lines, stated that it was enacted to prevent
“services which are owed from fiefs of this sort, and which were originally established
for the defense of the kingdom[, from being] wrongfully withheld.” See id.
53
Concern that land might vest perpetually in ecclesiastical organizations to
the detriment of the state was not peculiar to England. “Already during the Roman
Empire prohibitions were enacted by one of the first Christian emperors to prevent the
aggrandizement of the church through the acquisition of land.” Oosterhoff, supra note
18, at 260.
54
See Brody, supra note 47, at 900-01.
55
WILLIAM E. BURBY, HANDBOOK OF THE LAW OF REAL PROPERTY 7 (3d ed.
1965). (Of course, B was chargeable with the feudal incidents, but evidently methods
existed for insulating B as well. Id.)
56
JONES, supra note 3, at 6-7.
57
Brody, supra note 47, at 901.
58
The 1540 statute was the Statute of Wills, 32 Hen. 8, c. 1 (1540) (Eng.).
Four years earlier, as a response to the loss of feudal benefits occasioned by the
52
2008]
589
From the aristocracy’s point of view, the availability of
devise aggravated the mortmain problem. Back when
charitable transfers of land could be accomplished only inter
vivos, a tenant’s natural desire to hold until death what was
his could be relied upon to check what Professor Simpson called
“excesses of piety”;59 but once charitable devises could be freely
made, that natural desire no longer served as a check.
Coinciding with this development was the English
Reformation. Although King Henry VIII made extensive use of
his rights of entry (as lord Paramount) under the Statute of
Mortmain in his efforts to destroy religious houses and the
power of the Roman Catholic Church in England,60 the
protection of individual lords’ feudal incidents took on a
diminished importance in his national policy.61 Instead,
national policy was directed toward the encouragement of
charitable giving: secular charitable giving.
That legislative enactments to encourage private
secular philanthropy came about concurrently with the English
Reformation is a matter of historical fact.62 Different
hypotheses exist, however, as to the reasons for the
concurrence of these developments. Certainly there was at the
time of the Reformation a need for schools, hospitals, and
venues of relief for the poor and aged; and King Henry’s
suppression of the monasteries, which had hitherto provided
some of those services,63 could only have aggravated the need.
Moreover, the Reformation itself, by altering people’s views of
the nature of religion, may have altered their understanding of
the function of philanthropy. Jones notes:
employment of uses and to what were evidently informal testamentary dispositions of
uses, Parliament had enacted the Statute of Uses, 27 Hen. 8, c. 10 (1536) (Eng.), which
declared that henceforth the holder of the use (the cestui que use) would be treated as
the owner of the legal estate. BURBY, supra note 55, at 9. This foreclosure by
Parliament of the possibility of testation proved so immediately unpopular that
Parliament enacted the Statute of Wills to undo the damage. See Jeffrey G. Sherman,
Posthumous Meddling: An Instrumentalist Theory of Testamentary Restraints on
Conjugal and Religious Choices, 1999 U. ILL. L. REV. 1273, 1285, 1298 (1999).
59
SIMPSON, supra note 34, at 53.
60
61
Indeed, Parliament abolished the feudal incidents altogether in 1645,
during the days of the Commonwealth, and that abolition was reconfirmed at the time
of the Restoration. Charles J. Reid, Jr., The Seventeenth-Century Revolution in the
English Land Law, 43 CLEV. ST. L. REV. 221, 241-42 (1995).
62
63
See LEONARD SHELFORD, A PRACTICAL TREATISE OF THE LAW OF
MORTMAIN, AND CHARITABLE USES AND TRUSTS 42-43 (1842).
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The objects of charity were to become more secular as the majority of
Englishmen reflected less on the fate of their souls and became more
concerned with the worldly needs of their fellow men.64
Thus, a gift to a secular corporation for the maintenance
of a school or hospital came to appeal more to religiouslymotivated potential donors than did a gift to an ecclesiastical
body for the saying of masses or the upkeep of a chapel.
Funds bequeathed for charitable purposes were
frequently misapplied by the persons charged with their
administration, and few if any remedies were available to
enforce the restrictions that the charitable grantors had
originally sought to impose.65 As the need for private charitable
endowments increased and as those endowments came to be
more likely secular than spiritual, Parliament was moved to
enact statutes making the enforcement of charitable “uses”
easier to accomplish.66 Also at this time, Parliament, by various
acts, “dispensed with” the old statutory mortmain restrictions
applicable to land.67 Soon, property could be readily conveyed or
devised to charitable corporations or to individuals in trust for
any charitable use. But accompanying these liberalizing
changes applicable to secular charitable transfers came a fierce
determination, partly legislative and partly judicial, to ensure
that no charitable transfers could benefit the Roman Catholic
Church.68
It is tempting to view this anti-Catholic agenda as
merely another example of the sectarian bigotry we
occasionally see today in the United States, but such a view is
quite ahistorical. The impetus for this sixteenth century
hostility was not sectarianism but incipient nationalism. When
King Henry VIII, for dynastic and political reasons, determined
to abrogate all Papal authority within England,69 Parliament in
furtherance of that agenda enacted the so-called Act of
Supremacy (1534), declaring “that the King, our sovereign lord,
his heirs and successors, kings of this realm, shall be taken,
64
JONES, supra note 3, at 10.
See, e.g., id. at 10, 16. Remember, even before the English Reformation,
personal property could be disposed of by will and in mortmain. See supra note 34.
66
See, e.g., Statute of Charitable Uses, 1601, 43 Eliz., c. 4 (Eng.). See
generally JONES, supra note 3, at 16-56.
67
SHELFORD, supra note 63, at 42-57.
68
See infra text accompanying notes 72-79.
69
For a short discussion of the background of King Henry’s actions, see
Jeffrey G. Sherman, A Tax Teacher Tries Law and (Dramatic) Literature, 37 SUFFOLK
U. L. REV. 255, 275-78 (2004).
65
2008]
591
accepted, and reputed the only supreme head in earth of the
Church of England.”70 By virtue of that enactment, one could no
longer remain simultaneously a scrupulous Catholic and a
loyal Englishman inasmuch as any profession that the Pope’s
ecclesiastical authority exceeded that of the King constituted
an act not simply of religious nonconformity but of political
treason. And the Church’s belligerent response to the schism
only strengthened the connection in the English mind between
Catholicism and violent subversion.71
The principal judicial tool for preventing charitably
inclined donors from benefiting the Catholic Church was the
doctrine of “superstitious uses.”72 By the end of Elizabeth’s
reign, secular charitable trusts had become actively favored by
chancellors,73 who
would . . . save charitable trusts despite defects in form or because of
incapacity of the feoffees to uses even though such defects or
incapacity would be fatal to other trusts. Moreover, statutes of
limitation were held ineffective to bar actions to enforce charitable
uses, a charitable use could not be destroyed by a tortious
feoffment[,] and charitable legacies were preferred on a marshalling
of assets.74
Chancellors also developed the doctrine of cy pres, which
continues to be applied even today. The trustees of a charitable
trust lack the authority to alter the terms of the transfer
merely because they think such an alteration would be
desirable. However, if an intended charitable trust would
otherwise fail because its purposes are or have become
impossible to achieve, the doctrine of cy pres allows courts to
70
Act of Supremacy, 26 Hen. 8, c. 1 (1534) (Eng.).
In 1570 Pope Pius V issued a bull, Regnans in Excelsis, declaring the
English monarch (Elizabeth I at the time) an excommunicate and purporting to absolve
her subjects of their sworn duty to obey her. See Michael deHaven Newsom, The
American Protestant Empire: A Historical Perspective, 40 WASHBURN L.J. 187, 222
(2001). Pius’s immediate successor went on to proclaim that the assassination of
Elizabeth would not be a mortal sin. See, e.g., CAROLLY ERICKSON, THE FIRST
ELIZABETH 318-19 (1997).
72
Courts’ employment of the word “superstitious” in this context may have
had a legislative genesis in the preamble to a 1547 statute—the Chantries Act, 1 Edw.
6, c. 14 (1547) (Eng.)—aimed at suppressing charitable endowments for private,
presumably Catholic, chapels. The preamble applied the words “superstition and
errors” to such matters as the belief in Purgatory and the saying of masses on behalf of
the dead. See JONES, supra note 3, at 12.
73
Obviously, the question arose then and has continued to arise as to what
trust purposes are to be considered “charitable.” This question lies beyond the scope of
this Article, but the interested reader is directed to WILLIAM M. MCGOVERN, JR. &
SHELDON F. KURTZ, WILLS, TRUSTS AND ESTATES 390-92 (3d ed. 2004).
74
71
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authorize the trustee to apply the trust property to other, but
similar, charitable purposes if such an alteration would not
contravene the grantor’s intent.75
But none of these indulgent and curative policies
available to secular charitable trusts—including the prospect of
perpetual duration even after the “rule against perpetuities”
developed for private transfers76—were made available under
English law at the time if the purposes of the trust were found
to be “superstitious.” On the contrary, the trust was declared
void and forfeit to the Crown,77 albeit with the hope that the
Crown would then, as parens patriae, apply the forfeited funds
to some lawful charitable use, rather than simply adding them
to the royal coffers.78 Initially, “superstitious uses” meant uses
for the support of the beliefs, institutions, or clergy of the
Roman Catholic Church,79 but the understanding of the term
expanded over the years to include trusts for the benefit of such
other non-Anglican religions as Unitarianism80 and Judaism.81
Indeed, the doctrine of “superstitious uses” continued to be
employed to strike down trusts for the benefit of non-Anglican
religions even after English law was changed to officially
“tolerate” those religions,82 although an occasional court might
“save” the superstitious trust by applying cy pres and directing
the trustees to use the trust funds for an Anglican purpose that
the court considered similar.83
The doctrine of superstitious uses has survived in
English law, but not as a tool to invalidate, on a per se basis,
trusts for the benefit of a minority religion. Rather, the
doctrine has survived (and is applied under American law as
75
For a historical discussion of the doctrine of cy pres, see Joseph Willard,
Illustrations of the Origin of Cy Près, 8 HARV. L. REV. 69 (1894).
76
Pursuant to the rule against perpetuities, all the beneficiaries’ interests
under a private trust must vest or fail within the period of the Rule, but a charitable
trust may continue in perpetuity. 4A AUSTIN WAKEMAN SCOTT, SCOTT ON TRUSTS § 365
n.1 (William Franklin Fratcher ed., 4th ed. 1989).
77
78
Id. at 77.
79
See id. at 82-87.
80
Attorney-General v. Pearson, 3 Mer. 353, 353, 36 Eng. Rep. 135. 136
(1817).
81
Da Costa v. De Paz, 1 Dick. 258, 258-59, 21 Eng. Rep. 268, 268 (1754).
82
As late as 1854, a gift for the saying of masses was held void as being
intended for a superstitious use. Heath v. Chapman, 2 Drew. 417, 426, 61 Eng. Rep.
781, 784-85 (1854).
83
See, e.g., Da Costa, 1 Dick. at 258, 21 Eng. Rep. at 268 (modifying a trust
originally intended to support instruction in the Jewish religion to support a foundling
hospital whose inmates were to be instructed in the Christian religion).
2008]
593
well), albeit without the pejorative word “superstitious,” as a
useful tool for invalidating trusts that neither confer a public
benefit84 nor support definitely identifiable individuals.85 In the
1923 English Chancery case of In re Hummeltenberg,86 the
testator had bequeathed a substantial sum in trust for the
purpose of “training and developing suitable persons, male and
female, as mediums.” The trust was a perpetuity and therefore
had to be declared invalid unless it was found to be charitable;87
and to be classified as charitable, a trust must be designed to
confer some sort of significant public benefit.88 The court, after
expressing its understanding that a medium is “an individual
who professes to act as an intermediate for communication
between the living and the spirits of persons now dead,” held
that the training of mediums did not confer a public benefit and
that the trust was therefore invalid.89 While the court did not
go so far as to call mediums frauds or to call spiritualism
superstition,90 it did liken the testator’s intention to “the
84
See Jackson v. Phillips, 96 Mass. (14 Allen) 539 (1867). To be considered
charitable, a trust must benefit
an indefinite number of persons, either by bringing their minds or hearts
under the influence of education or religion, by relieving their bodies from
disease, suffering or constraint, by assisting them to establish themselves in
life, or by erecting or maintaining public buildings or works or otherwise
lessening the burdens of government.
Id. at 556; accord GEORGE GLEASON BOGERT & GEORGE TAYLOR BOGERT, THE LAW OF
TRUSTS AND TRUSTEES § 369 (rev. 2d ed. 1991).
85
A private trust, unlike a charitable trust, must have definitely identifiable
individual beneficiaries to be valid. If no individual beneficiaries can be identified, then
no one has standing to enforce the trust; and if no one has standing to enforce the
trust, then the putative trustee is not bound by any fiduciary constraints. And if the
putative trustee is not bound by any fiduciary constraints, she is not a trustee and
therefore no trust exists. JESSE DUKEMINIER ET AL., WILLS, TRUSTS, AND ESTATES 51819 (7th ed. 2005). In the case of a charitable trust, however, the state attorney-general,
or some other designated public official, has standing to enforce the trust, so
identifiable individual beneficiaries are unnecessary. MCGOVERN & KURTZ, supra note
73, at 389.
86
[1923] 1 Ch. 237, All Eng. Rep. 49.
87
See supra note 76.
88
See supra note 84.
89
In re Hummeltenberg, [1923] 1 Ch. at 242, All Eng. Rep. at 51.
90
The Supreme Court of Michigan invalidated a will that bequeathed the
bulk of the testator’s estate “to be used as a nucleus in founding, building and
equipping a home for poor and aged mediums.” O’Dell v. Goff, 112 N.W. 736, 737 (Mich.
1907). Such a bequest does not raise quite the same public policy issues as the will in
Hummeltenberg did, inasmuch as the O’Dell bequest was intended to benefit the
needy—a valid charitable aim—rather than to advance a particular doctrine. But there
was considerable evidence in O’Dell that the testator believed that his will was dictated
to him by spirits, and the court invalidated the entire will not on public policy grounds
but on the grounds of testamentary incapacity and undue influence. Id.
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promoting of all kinds of fantastic (though not unlawful) objects
of which the training of poodles to dance might be a mild
example;”91 and it hinted that, had the perpetuities objection
not been dispositive, it would have been at least open to the
argument that the trust was invalid on public policy grounds.92
How have English courts responded in modern times to
the kinds of trusts at which the anti-Catholic Tudor policies
were specially aimed: trusts to support the saying of masses for
the repose of souls? Courts continued to apply the
“superstitious uses” doctrine to invalidate such trusts until
1919,93 when the House of Lords overruled these longstanding
precedents and held that trusts for the saying of masses were
not “superstitious” and therefore could be valid trusts.94 There
still remained, however, the requirement that charitable trusts
provide a public benefit. As to this, courts held that trusts to
support the saying of masses were valid if the public (or a
significant portion of the public) had access to the masses95 but
invalid if the public was excluded.96 As to public masses, courts
were willing to give religious beliefs—even “minority” religious
beliefs—more allowance than they were willing to give belief in
mediums:
A religion can be regarded as beneficial without it being necessary to
assume that all its beliefs are true, and a religious service can be
regarded as beneficial to all those who attend it without it being
necessary to determine the spiritual efficacy of that service or to
accept any particular belief about it.97
But as to private masses, the public benefits postulated
to accrue from them—the beneficial public effects of
intercessory prayer and the edification of the public by
example—were held to be, respectively, incapable of proof and
91
In re Hummeltenberg, [1923] 1 Ch. at 242, All Eng. Rep. at 51.
If the perpetuities issue had not been dispositive (because, let us say, the
duration of the trust was expressly limited to twenty-one years), the court’s finding
that the trust was not charitable might still have supported a holding that the trust
was invalid if the trust did not have definitely identifiable beneficiaries. See supra note
85. For some reason, however, the court does not discuss this alternative rationale; it
mentions only public policy as an alternative rationale.
93
For examples of cases applying the “superstitious uses” doctrine as late as
the nineteenth century, see Heath v. Chapman, [1854] 2 Drew. 417; West v.
Shuttleworth, [1835] 2 Myl. & K. 684.
94
Bourne v. Keane, [1919] A.C. 815, 926.
95
In re Hetherington, [1990] Ch. 1, 13 (1989).
96
Gilmour v. Coats, [1949] A.C. 426, 442-55 (H.L.).
97
Id. at 459.
92
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595
too intangible.98 That these invalidated trusts for private
masses bear some resemblance to the private chantries
condemned and invalidated as superstitious by the Chantries
Act of 1547 is interesting but not cause for disquiet.99 The
modern English courts’ distinction between publicly accessible
and private religious observance is neutral as to religious
content and treats religious belief no differently from any other
belief that is unsusceptible of proof,100 while the sixteenth
century statute was—by its design and in its effect—entirely
sectarian.
B.
Later English Mortmain Law: A Private Law Response
The early English mortmain law, just discussed, dealt
with a public law problem: the erosion of the feudal
aristocracy’s privileges. But this Article is concerned with a
private law problem that has outlasted feudalism: individual
testators who allow charitable inclinations to outweigh
supposed obligations to the natural objects of their bounty.
Both post-feudal English legislators and their American
counterparts responded to this private law concern by enacting
statutes
to prevent undue influence and imposition upon pious and feeble
minds in their last moments, and to check that unhappy propensity,
which sometimes is found to exist under a bigotted enthusiasm, and
the desire to gain fame as a religious devotee and benefactor, at the
expense of all the natural claims of blood and parental duty to
children.101
98
See Giles v. McDonnell, [1989] Ch. 133 Sol. J. 457.
See supra note 72.
100
Unique among American jurisdictions, the District of Columbia had a
mortmain statute that imposed restrictions on bequests to clergy or religious
institutions like churches but not on bequests to charitable, educational, or artistic
institutions, even those operated by religious institutions. See Estate of French v.
Doyle, 365 A.2d 621, 622 (D.C. 1976). Thus, a bequest to a semi-cloistered order of nuns
was held invalid, McInerney v. District of Columbia, 355 F.2d 838 (D.C. Cir. 1965),
while a bequest to the Little Sisters of the Poor was held valid. In re Estate of Susan
Evelyn Murray, No. 29831 (D.C. Dec. 26, 1924) (cited in Estate of French, 365 A.2d at
622). The District of Columbia statute was later held unconstitutional. Estate of
French, 365 A.2d at 625. See infra text accompanying notes 174-176.
101
This passage comes from an anonymous “Note I” printed as an appendix to
Philadelphia Baptist Ass’n v. Hart’s Executors, 17 U.S. (4 Wheat.) 1 (1819) [hereinafter
Note I, Phila. Baptist Ass’n]. This appendix is published (and separately paginated) at
the end of Volume 17 of United States Reports; the quoted passage appears on page 23
of this appendix. Professor Brody identifies Mr. Justice Story as the author of this
anonymous Note. See Brody, supra note 47, at 907.
99
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In 1736, long after the medieval mortmain restrictions
were “dispensed with,”102 the English Parliament enacted what
we know as the Modern Law of Mortmain.103 It was enacted at a
time of rampant anti-clericalism in England, a time when
many “feared that the clergy would emulate what they thought
to be the example of their medieval predecessors and terrorise
them into making death-bed devises” to religious causes.104 But
the statute continued in operation long after this wave of anticlericalism faded, for the logic and function of the statute was
neither to prevent increases in the Church’s wealth nor to curb
testators’ attempts at gratifying their vanity through pious
acts. Rather, the statute was designed to “strike down the
death-bed charitable devise which deprived the heir of land
deemed to be his natural right.”105 Among other things, the Act
prohibited the conveyance of lands (or the conveyance of
personalty to be applied to the purchase of lands) for charitable
uses unless
[a] the conveyance [was] by deed signed, sealed, and delivered in the
presence of two or more witnesses at least twelve months before the
death of the donor or grantor; [b] the deed [was] enrolled in the high
Court of Chancery within six months after its execution; [c] in the
case of the transfer of stocks to be laid out in the purchase of lands,
such stocks [were] transferred in the [corporate] books kept for that
purpose six months before the death of the donor or grantor; and [d]
the conveyance [was to] take effect in possession forthwith on its
making . . ., without power of revocation . . . .106
Observe that, inasmuch as no devise could possibly
satisfy these conditions, the effect of the statute was to bar
devises of land to charity.107 But this bar operated quite
differently from the medieval and Tudor mortmain restrictions.
Under the earlier mortmain rules, an improper devise to
charity was not void but merely voidable;108 only if the lord or
the King exercised his right of entry would the land be
forfeited.109 The 1736 statute, on the other hand, rendered such
102
See supra notes 63-67 and accompanying text.
Mortmain Act, 9 Geo. 2, c. 36 (1736).
104
105
Id. at 117-18; see Oosterhoff, supra note 18, at 281.
106
107
And the fourth restriction effectively barred inter vivos conveyances of
remainders to charity. Inter vivos transfers had to be outright and immediate.
108
See supra note 50.
109
See Oosterhoff, supra note 18, at 278, 288.
103
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597
devises void absolutely.110 Furthermore, the 1736 statute—like
all American mortmain statutes that came after it—
contemplated that such improperly devised land would pass to
the testator’s heirs (or residuary devisees) rather than
escheating to the public fisc.111
Several comparative observations may usefully be made
at this point. First, in the decades between the 1601 enactment
of the Statute of Charitable Uses and the 1736 enactment of
the Mortmain Act, English courts came to favor charitable
devises and were inclined to take an expansive view as to what
transfers qualified as “charitable” so that such transfers would
enjoy the special protections afforded charitable donations.112 In
contrast, after the 1736 Act, taking an expansive view of what
constituted “charity” endangered more transfers by bringing
them within the invalidating reach of the statute;113 and the
same possibility of endangerment existed under the American
mortmain statutes that we shall discuss shortly. Second, the
1736 Act dealt only with transfers of land, not transfers of
personalty: an arbitrary distinction (since the feudal incidents
had been abolished114) that allowed a charitably inclined
testator to frustrate Parliament and disappoint his heirs by
converting all his land to personalty before executing his will.
On the other hand, few American mortmain statutes treated
land differently from personalty.115 Third, while the 1736 Act
invalidated all testamentary transfers of land to charity, it
invalidated inter vivos transfers of land only if they were made
less than one year before the transferor’s death.116 Parliament
seems to have assumed that a landowner was unlikely to make
improvident land-transfers that stood to jeopardize his
standard of living. Since testamentary transfers do not reduce
a transferor’s wealth, all testamentary transfers came within
110
Id. at 284.
See JONES, supra note 3, at 113-19. For example, suppose a testator in her
will devised Blackacre to Charity A, £10,000 to Charity B without restrictions, and the
residue of her estate to individual C. Upon application of the 1736 rule, Blackacre
would become part of the residue and pass to C; it would not escheat to the Crown.
112
113
See JONES, supra note 3, at 107-08.
114
See supra note 61.
115
Even today, some American jurisdictions restrict the amount of land that
may be held by the trustees of a charitable or benevolent association. See, e.g., VA.
CODE ANN. § 57-20 (2006) (five acres); see also MISS. CODE ANN. § 79-11-33 (2006)
(effectively prohibiting religious societies from owning land other than that reasonably
related to certain enumerated institutional purposes).
116
111
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the reach of the statute. But since inter vivos transfers do
reduce a transferor’s wealth, no special restrictions were
needed unless the landowner was so close to death that his selfinterest could not be relied upon as a check on his
improvidence. American mortmain statutes, on the other hand,
rarely applied to inter vivos transfers at all.
C.
American Mortmain Law—A Similar Private Law
Response
The 1736 English Mortmain Law never had any force in
the American colonies.117 But American judges and legislators
undoubtedly knew of the 1736 Law, and after the founding of
our republic many of them thought the English example
worthy of emulation. Justice Story, for instance, urged
American legislators to follow the “enlightened” example of the
English Parliament by enacting legislation to prevent the
“imposition upon pious and feeble minds in their last moments”
and to restrain charitable impulses when they threaten “the
natural claims of blood and parental duty to children.”118 For
without such legislation, American courts often had to watch
helplessly as charitable bequests shattered family members’
expectations.
In Doughten v. Vandever, for example, a testator had
left almost her entire estate to a number of charities and
almost nothing to her blood relatives.119 Although the will
described the intended charitable legatees in vague and
inaccurate language, the court upheld the bequests
nonetheless, a result quite consistent with the traditional
judicial favoritism shown to attempted charitable transfers.120
But the court expressed its disapproval of the testator’s
intention to leave all to charity at the expense of her family.
The court stated:
There is nothing in the will . . ., with respect to these charitable
bequests, at the expense of her relatives in blood, that meets the
approval of my judgment. Her example in this respect I would not
commend as worthy of imitation; and nothing but a sense of duty,
which compels me to follow the law as expounded by courts of equity,
has caused me to give an interpretation to the provisions of her
117
Brody, supra note 47, at 906; Oosterhoff, supra note 18, at 297 (citing
Attorney-Gen. v. Stewart, (1817) 35 Eng. Rep. 895, 900-01).
118
See supra note 101.
119
Doughten v. Vandever, 5 Del. Ch. 51, 51-52 (1875).
120
See supra note 3; supra text accompanying notes 62-74.
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599
will . . . by which her heirs at law are excluded from the benefit of
sharing her estate.121
Consequently, American legislators, some at least as
early as 1848, began to take Justice Story’s advice.122 For
example, the Supreme Court of California, writing in 1907,
explained the purpose of that state’s mortmain statute:
It is that a man’s fears or superstition, or his death-bed hope of
purchasing a blissful immortality, shall not be allowed to influence
the disposition which he may thus make of his property, to the injury
of his heirs.123
American mortmain statutes, all of them since
repealed,124 generally fell within one of two categories:
(1) statutes that limited the percentage of a testator’s estate
that she was permitted to bequeath to charity (we shall use the
term “percentage restrictions” to refer to this first group);
and, more commonly, (2) statutes that annulled charitable
bequests if the testator died only a short time after executing
the will (we shall use the term “deathbed restrictions” to
refer to the second).125 Among the percentage restrictions were
Iowa’s (invalid in excess of twenty-five percent)126 and New
York’s (invalid in excess of fifty percent).127 Among the
deathbed restrictions were California’s (30 days),128 Florida’s
(6 months),129 and Idaho’s (120 days).130 And a few statutes—
121
Doughten, 5 Del. Ch. at 77.
See Shirley Norwood Jones, The Demise of Mortmain in the United States,
12 MISS. C. L. REV. 407, 409 (1992).
123
In re Lennon’s Estate, 92 P. 870, 871 (Cal. 1907).
124
In 1970, eleven American jurisdictions still had mortmain statutes:
California, District of Columbia, Florida, Georgia, Idaho, Iowa, Mississippi, Montana,
New York, Ohio, and Pennsylvania. All of them have since been repealed or held
unconstitutional. See RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE
TRANSFERS § 9.7 cmt. c, note 3 (2003).
125
Strictly speaking, these American statutes were not mortmain statutes,
inasmuch as they did not purport to limit the amount of wealth that a charitable body
might accumulate. See Kramer v. Eckart (In re Estate of Eckart), 348 N.E.2d 905, 909
(N.Y. 1976). Nonetheless, it is common to use the word “mortmain” in the context of
these statutes, see, e.g., RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE
TRANSFERS § 9.7 cmt. (2003); Michael G. Walsh, Annotation, Modern Status, Validity,
and Effect of Mortmain Statutes, 6 A.L.R.4th 603 § 2(a) (1981), and I shall continue to
do so in this Article.
126
IOWA PROB. CODE § 633.266 (repealed 1980).
127
N.Y. EST. POWERS & TRUSTS LAW § 5-3.3 (repealed 1981).
128
CAL. PROB. CODE § 41 (repealed 1971).
129
FLA. STAT. ANN. § 732.803, invalidated by Shriners’ Hosp. for Crippled
Children v. Zrillic, 563 So. 2d 64, 68-69 (Fla. 1990).
130
IDAHO CODE ANN. § 15-2-615 (repealed 1994).
122
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such as Ohio’s—combined the features of both groups (invalid
in excess of twenty-five percent if the testator died less than six
months after executing the will).131 The ostensible targets of the
percentage restrictions were “excesses of piety,”132 while those
of the deathbed restrictions were bequests generated by “the
[deathbed] fears of the faithful.”133 Both kinds of restrictions did
succeed in reaching their targets, but not without difficulties
that made enforcement inconsistent and problematic.
For example, did the statutes render the offending
charitable bequest absolutely void or merely voidable if
challenged by someone with standing to do so? Under the 1736
English statute that served as a model for American
legislation,134 such bequests were void.135 Under the American
statutes, however, such bequests generally were held merely to
be voidable. The Iowa mortmain statute, for instance, provided:
No devise or bequest to a [not-for-profit corporation] shall be valid in
excess of one-fourth of the testator’s estate after the payment of
debts, if a spouse, child, child of a deceased child, or parent survive
the testator.136
Read literally, this statute provides that if a specified relative
survives the testator, the excess bequest is automatically void,
even if none of those relatives actually files an objection.
131
OHIO REV. CODE ANN. § 2107.06 (repealed 1985). In addition to
invalidating all charitable bequests made within thirty days of death, the California
statute invalidated even charitable bequests made more than thirty days before death
to the extent that such earlier bequests exceeded one-third of the estate. CAL. PROB.
CODE § 41 (repealed by 1971 Cal. Stat. ch. 1395).
132
See supra note 59.
133
See supra note 18 and accompanying text. The Supreme Court of Florida
stated that Florida’s mortmain statute was “obviously [designed] to prevent testators
who may be laboring under the apprehension of impending death from disposing of
their estates to the exclusion of those who are, or should be, the natural objects of the
testator’s bounty.” Taylor v. Payne, 17 So. 2d 615, 618 (Fla. 1944), overruled by
Shriners Hosp. for Crippled Children v. Zrillic, 563 So. 2d 64, 70 (Fla. 1990).
134
The case of universities provides an interesting illustration of the extent to
which American legislators were indebted to their English progenitors. When the 1736
English statute was being debated, Parliament granted exemptions for transfers made
to the universities and colleges at Oxford and Cambridge and to the schools of Eton,
Westminster, and Winchester, since Parliament considered these institutions to be the
only public foundations “either useful or necessary in this Kingdom.” JONES, supra note
3, at 111. Florida legislators included a similar exemption in their state’s mortmain
statute, which by its terms did not apply to “devises or bequests made to institutions of
higher learning.” FLA. STAT. ANN. § 731.19; see also CAL. PROB. CODE § 42 (repealed
1971). (The California repealing legislation exempts certain public and private
educational institutions from the restrictions of the state’s mortmain statute. 1971 Cal.
Stat. ch. 1395 § 1.)
135
See supra note 111 and accompanying text.
136
IOWA PROB. CODE § 633.266 (repealed 1980).
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Nonetheless, the Iowa courts construed the statute to make the
charitable bequest merely voidable, at the instance of one or
more of the specified relatives.137 California courts—noting the
public policy “in favor of charities and against the concept of
mortmain”—reached a similar result under the California
statute.138 And the Florida mortmain statute quite explicitly
stated that a charitable bequest could be avoided only if one or
more of the lineal descendants or a spouse who would receive
any interest in the devise, if avoided, “file[d] written notice to
this effect in the administration proceeding within 4 months
after the date letters [testamentary were] issued.”139 The
mortmain statutes of a few states, however, contained no
references to enumerated relatives, and accordingly those
statutes were held to render the offending bequests void
absolutely inasmuch as courts saw no textual basis for tying
invalidity to the claims of particular persons.140
D.
Why Mortmain Statutes Proved Unworkable
Even in the majority of states whose mortmain statutes
were dependent on challenges brought by enumerated
relatives, some courts required not only that the challenger be
one of the enumerated relatives but also that she be entitled to
take an additional share of property in the event the challenge
was successful. In other words, an objectant’s standing
depended not simply on being one of the enumerated relatives
but also on enjoying the prospect of benefiting from the
objection. For example, suppose a state’s mortmain statute was
interpreted to require that an objection be filed by a spouse or
descendant before a charitable bequest might be successfully
challenged. A testator’s will provided, “I bequeath $100,000 to
Charity X and the residue of my estate to my niece.” The
testator, who was also survived by a son, died less than a
month after executing the will, so the charitable bequest was
voidable under the mortmain statute. But even if the
137
See Watson v. Manley, 130 N.W.2d 693, 696-97 (Iowa 1964), and the cases
cited therein.
138
McCormack v. Catholic Church Extension Soc’y of the United States of Am.
(In re Estate of Reardon), 52 Cal. Rptr. 68, 73 (Dist. Ct. App. 1966); Villa v. Gutierrez
(In re Estate of Gutierrez), 33 Cal. Rptr. 593, 598 (Dist. Ct. App. 1963).
139
FLA. STAT. ANN. § 732.803, invalidated by Shriners’ Hosp. for Crippled
Children v. Zrillic, 563 So. 2d 64, 68-69 (Fla. 1990).
140
See, e.g., IDAHO CODE § 15-2-615 (repealed 1994); MONT. CODE ANN. § 7211-334 (declared unconstitutional in In re Estate of Kinyon, 615 P.2d 174 (Mont. 1980)).
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charitable bequest were successfully challenged, the challenge
would profit the son nothing inasmuch as the $100,000 would
drop into residue for the niece’s benefit, rather than passing by
intestacy to the son. The niece would benefit from a successful
challenge, but she lacked standing to bring one inasmuch as
she was not an enumerated relative. Consequently, the
deathbed charitable bequest could not be reached under this
hypothetical statute.141
A testator might use a substitutionary gift as a device
for thwarting such a mortmain statute: for example, “I
bequeath $100,000 to Charity X, but if this bequest should for
any reason be declared invalid, then I bequeath that $100,000
to Individual A. And I bequeath the residue of my estate to my
son.” Even though the son would ordinarily have standing to
maintain an action to avoid the charitable bequest under this
hypothetical mortmain statute inasmuch as he was both an
enumerated relative and a residuary legatee, in this case he
would lack standing inasmuch as a successful challenge to
Charity X’s bequest would not benefit the son but only
Individual A. Consequently, the charitable bequest would
survive any attack brought pursuant to this mortmain
statute.142 The Iowa rule, by contrast, did not deprive an
enumerated relative of standing even though she would not
derive any pecuniary benefit from a successful objection,143 and
thus the charity would indeed lose, but Individual A, rather
than the objecting son, would gain. And if the testator carefully
chose Individual A, who was in fact a director or officer of
Charity X, even the successful contest under the Iowa
mortmain statute would not thwart the testator’s charitable
intentions inasmuch as Individual A would be expected to use
his inheritance to benefit the same charity that the testator
wanted to benefit.144
141
See Whelpley v. Union Trust Bank of St. Petersburg (In re Estate of Lane),
186 So. 2d 257, 260 (Fla. Dist. Ct. App. 1966).
142
See, e.g., Syster v. Roman Catholic Bishop of San Diego (In re Estate of
Sanderson), 375 P.2d 37, 40 (Cal. 1962); Rauf v. Salvation Army at Ocala (In re Estate
of Rauf), 213 So. 2d 31, 32 (Fla. Dist. Ct. App. 1968); Cent. Nat’l Bank of Cleveland v.
Morris, 222 N.E.2d 674 (Ohio Prob. Ct.), aff’d, 227 N.E.2d 418 (Ohio Ct. App. 1967).
143
See, e.g., Davis v. Davis (In re Estate of Davis), 114 N.W.2d 314, 317 (Iowa
1962).
144
The device of naming a charity’s officer as a substitute taker worked
splendidly to protect the charitable bequest in an Iowa-type jurisdiction, as long as the
gift over was to Individual A in his individual capacity so that the will did not purport
to impose on Individual A any legal obligation to use the inheritance to benefit the
charity. See, e.g., Durkee v. Smith, 156 N.Y.S. 920, 922-23 (App. Div.), aff’d, 114 N.E.
2008]
603
The availability of the substitutionary gift technique
provided testators with “a ready instrument” for protecting
charitable bequests from successful challenges pursuant to a
mortmain statute by depriving potential contestants of
standing.145 It is difficult to believe that courts’ allowance of this
technique was consistent with legislatures’ intent, especially
where the substitute takers were officers of the charitable
legatee. To the extent legislatures wanted to restrain bequests
generated by the deathbed fears of the faithful, they could
hardly have approved of this technique when the inclusion of
the substitutionary gift might have been prompted by the same
undue influence or the same deathbed fears that prompted the
charitable bequest. Nonetheless, the availability of this
technique—the ease with which a mortmain statute could be
1066 (N.Y. 1916). I have some doubts as to the soundness of citing this (or any) New
York case as an illustration of the Iowa rule, for the New York decisions puzzle me. The
result in the Durkee case is explainable only if New York followed the Iowa rule,
inasmuch as the challenger was able to get a charitable bequest struck down even
though substitute takers, not the challenger himself, benefited from the successful
challenge. Yet a later case, In re Estate of Fitzgerald, 339 N.Y.S.2d 333, 337 (Sur. Ct.
1972), held that a substitutionary gift deprived an enumerated relative of his standing
to contest a charitable gift; curiously, the Fitzgerald court cited the Durkee case in
support of that proposition, 339 N.Y.S.2d at 337, even though Durkee seems to have
held that such a relative did have standing. However, another New York case, In re
Logasa’s Estate, appears to disagree with Fitzgerald and agree with Durkee. 297 N.Y.S.
730, 731-32 (Sur. Ct. 1937). While the Logasa opinion is not so clear as it might be with
regard to the facts, the case appears to have held that an enumerated relative could
bring a challenge under the mortmain statute even though he would not benefit from
the redirected money. Id.
The Iowa rule—granting standing to a petitioner who does not stand to
benefit from a successful mortmain challenge—is inconsistent with over a century of
wills law. In order to have standing to contest a will, an action quite analogous to
challenging a charitable bequest pursuant to a mortmain statute, the contestant must
show that a successful contest would increase the share of the decedent’s property that
would devolve to her. If the invalidation of the will would not be of direct pecuniary
benefit to her, she lacks standing to contest. See, e.g., Parker ex rel. Ames v. Reeves,
553 So. 2d 570, 572 (Ala. 1989); Fuqua v. Holt (In re Eskridge’s Estate), 125 P.2d 527,
528 (Cal. Ct. App. 1942); In re Shephard’s Estate, 32 A. 1040, 1042 (Pa. 1895).
145
Note, Standing to Contest Wills Violating Charitable Bequest Statutes, 50
COLUM. L. REV. 94, 96 (1950). Indeed, the courts of at least one state consistently held
that a testator bent on circumventing the statute need not have named a substitute
taker; all she had to do was declare in the will that the relatives enumerated in the
statute should receive no portion of her estate either by will or by intestacy. See In re
Kramer v. Eckart (In re Estate of Eckart), 348 N.E.2d 905, 909-10 (N.Y. 1976). It
should be noted, however, that some states, regardless of the existence of any
mortmain statutes, do not permit a testator to disinherit her heirs simply by fiat; they
require a testator bent on such disinheritance to make an effective bequest of her
estate to other persons. See, e.g., Cook v. Estate of Seeman, 858 S.W.2d 114, 115 (Ark.
1993); Clark v. Baxter (In re Estate of Baxter), 827 P.2d 184, 186 (Okla. Civ. App.
1992).
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circumvented—lay behind at least one legislature’s decision to
repeal that state’s mortmain statute.146
Mortmain statutes in the form of percentage restrictions
frequently presented valuation and calculation issues. How, for
example, should one value the bequest of a future interest to a
charity? Suppose a hypothetical mortmain statute bars
charitable bequests in excess of one-third of a testator’s net
probate estate. A particular testator with a net probate estate
of $300,000 bequeaths $101,000 in trust and the residue to her
children outright. The terms of the trust provide that the
income from the trust property is to be paid to Individual X for
ten years, and then the remainder in the trust is to be
distributed outright to Charity Y. At least one court held that
since it could not determine as of the testator’s death the
amount that would ultimately pass to Charity Y, it had to wait
until the trust terminated to see how much actually ended up
going to the charity.147 So, under such an interpretation, if the
principal of our hypothetical trust remains at $101,000 until
final distribution, the charitable bequest will be found
retroactively to have violated the mortmain statute. Not only is
this valuation method administratively unsatisfactory
inasmuch as it requires the beneficiaries to wait many years
before they know who inherits what, the method is also
doctrinally wrong. While it is certainly true that $101,000 is
more than one-third of the $300,000 over which the testator
had testamentary control, the testator did not bequeath the
entire $101,000 to charity. She bequeathed only a remainder
146
Margaret Valentine Turano, Practice Commentaries, in MCKINNEY’S
CONSOLIDATED LAWS OF NEW YORK; see N.Y. EST. POWERS & TRUSTS LAW § 5-3.3
(repealed 1981). I find it interesting that the New York legislature regarded the
substitutionary gift as a sure-fire method of undermining the mortmain statute,
inasmuch as at least two New York cases—Durkee and Logasa—held that a
substitutionary gift to a nonrelative does not deprive an enumerated relative of
standing to object to the charitable bequest. See supra note 144. Perhaps the
legislature had only the more recent Fitzgerald case in mind. See In re Estate of
Fitzgerald, 339 N.Y.S.2d at 337. Or perhaps the legislature believed that most
enumerated relatives, even if they had standing to object, would not spend the time or
money necessary to press their objection when any success would enrich the substitute
taker rather than themselves. In Shriners Hospitals for Crippled Children v. Zrillic,
the Florida Supreme Court, in an opinion declaring Florida’s mortmain statute
unconstitutional, noted the ease with which the statute could be circumvented through
the use of substitutionary gifts. 563 So. 2d 64, 69 (Fla. 1990).
147
See McCormack v. Catholic Church Extension Soc’y of the United States of
Am. (In re Estate of Reardon), 52 Cal. Rptr. 68 (Dist. Ct. App. 1966). This valuation
method was employed by the trial court as reported in the appellate court’s opinion. Id.
at 70-71. The appellate court reversed the trial court on grounds unrelated to this
valuation issue. Id. at 76.
2008]
605
interest in that $101,000; the income from the $101,000 for ten
years was bequeathed to an individual. If we assume an
interest rate of 5 percent and employ standard actuarial
valuation techniques, the present value of X’s income interest
in that $101,000 is about $39,000, and the present value of the
charitable bequest is about $62,000: well within the one-third
limit.148
Even if a court is willing to use actuarial valuation
techniques,149 carrying out the statute may require considerable
ingenuity. Suppose, in our previous example, the testator had
bequeathed $200,000 to the trust instead of $101,000. The
present value of the charitable remainder would be about
$123,000: clearly in excess of one-third of the estate. If we
reduced the amount of the bequest in trust to $163,000, that
would lower the value of the charitable remainder to $100,000,
which satisfies the mortmain statute. But lowering the trust
corpus to $163,000 (that is, removing $37,000 from the
$200,000 pecuniary bequest and adding that $37,000 to
residue) would reduce more than just the charitable bequest. It
would reduce X’s income interest as well, and X is an
individual, not a charity. Perhaps the soundest solution would
be to divide the $200,000 pecuniary bequest into two trusts:
one in the amount of $163,000, with the income going to X for
ten years and the remainder going to Charity Y; and another in
the amount of $37,000, with the income going to X for ten years
and the remainder going to testator’s children (the residuary
legatees).
Mortmain statutes in the form of percentage restrictions
also presented interpretive problems whenever the testator
owned property in more than one state. Under the customary
principles of conflict of laws, the law of the situs determines the
effectiveness of an attempted devise of land.150 For example,
148
Sometimes actuarial valuation techniques cannot be used to calculate a
remainder’s present value, as where the trustee is authorized in its discretion to make
corpus distributions to the life income beneficiary. See Herrington v. Nation Found. for
Infantile Paralysis (In re Estate of Nicely), 44 Cal. Rptr. 804, 807 (Cal. Dist. Ct. App.
1965).
149
See, e.g., Upole v. Roberts (In re Estate of Roberts), 437 N.E.2d 1205, 1208
(Ohio Ct. App. 1980).
150
See In re Gracey’s Estate, 253 P. 921, 924 (Cal. 1927); Biederman v.
Guzman Ramos ex rel. Estate of Barteau (In re Estate of Barteau), 736 So. 2d 57, 58
(Fla. Dist. Ct. App. 1999); Hyman v. Glover (In re Estate of Hannan), 523 N.W.2d 672,
674 (Neb. 1994). Devolution of personal property is governed by the law of the
decedent’s domicile at death. Hemingway v. McGehee (In re Estate of Chrichton), 228
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where a Missouri domiciliary owned land located in Illinois, the
land was held to pass by intestacy even though he left a will
that was valid in Missouri, because an Illinois statute treated
the will as having been revoked by the testator’s subsequent
marriage.151 Consequently, if State One has a deathbed
restriction mortmain statute while State Two has none, and if
a testator domiciled in State One makes a deathbed charitable
devise of land located in State Two, the devise will not be
voidable under State One’s mortmain statute. And similarly, if
a testator domiciled in State Two makes a deathbed charitable
devise of land located in State One, the devise will be voidable
under State One’s mortmain statute. But suppose State One’s
mortmain statute is a percentage restriction; will the State
Two land be taken into account for purposes of determining
whether State One’s percentage restriction has been exceeded?
New York law, to take one example, answered that last
question affirmatively. First, said the Court of Appeals, the
value of all the testator’s property, wherever located, must be
ascertained.152 Then the value of all property not subject to New
York law (that is, out-of-state real property and, in the case of a
nondomiciliary, all personal property153) but bequeathed to
charity must be ascertained.154 If that second total equals or
exceeds fifty percent of the first total, any charitable bequests
of property subject to New York law (that is, New York realty
and, in the case of a New York domiciliary, all personal
property) are voidable under New York’s mortmain statute.155
But if that second total is less than fifty percent of the first
total, so much property subject to New York law may pass to
charities as will bring the total passing to charity up to fifty
percent of the first total.156 Thus, if a New York domiciliary’s
estate consisted of $60,000 of New York real estate, $40,000 of
New Jersey real estate, and $50,000 of personalty, and if the
testator’s will devised all his land to charity, New York courts
would allow not more than $35,000 of the New York realty to
N.E.2d 799, 806, 808, 823 (N.Y. 1967); Howard v. Reynolds, 283 N.E.2d 629, 630-31
(Ohio 1972).
151
Sternberg v. St. Louis Union Trust Co., 68 N.E.2d 892, 894, 897-98 (Ill.
1946). Illinois law no longer provides that a testator’s marriage revokes his premarital
wills. See ILL. COMP. STAT. § 5/4-7(b) (2007).
152
Decker v. Vreeland, 115 N.E. 989, 992 (N.Y. 1917).
153
See supra note 150.
154
Decker, 115 N.E. at 992.
155
Id.
156
Id.
2008]
607
pass to charity free of New York’s mortmain statute.157 But this
result assumes that no New Jersey mortmain statute would
limit the effectiveness of the charitable devise of the New
Jersey land. If both states had a percentage mortmain
restriction, the process would be more complex still.
Mortmain statutes in the form of deathbed restrictions
presented fewer interpretive problems than mortmain statutes
in the form of percentage restrictions. The one persistent
problem common to the former but not to the latter was
deathbed wills that reaffirmed charitable bequests made before
the deathbed period began. Suppose a state’s mortmain statute
voids all charitable bequests made within six months of death.
Two years before her death, a testator executes Will #1, which
bequeaths $10,000 to Charity A and the residue to individual
X. One month before her death, the testator executes Will #2,
which (1) expressly revokes Will #1, (2) bequeaths $10,000 to
Charity A, and (3) bequeaths the residue to individual Y. Since
the purpose of deathbed restrictions is “to protect . . . against
the influences . . . [of the] last moments” that prompt a testator
to make charitable bequests “as a means of tranquilizing a
disturbed conscience,”158 one might argue that the statute ought
not to be applied in this case inasmuch as the charitable
bequest predates those “last moments.” Indeed, if the statute
did apply in these circumstances, testators in their last
illnesses might thereafter refrain from making needed changes
in the noncharitable portions of their wills lest charitable
bequests in prior wills lose their “grandfathered” status. On the
other hand, the testator in our example might have intended,
when she drew Will #2, to revoke the charitable bequest
altogether and was dissuaded from doing so only by those
“influences of the last moments.” Under this new assumption,
one would think that the statute ought to be applied.
And the case I have presented so far is relatively
easy. Suppose we hold in this case that the $10,000 bequest to
Charity A is indeed “grandfathered” under the mortmain
statute and therefore valid. Would a $15,000 bequest to
Charity A in Will #2 be similarly grandfathered? Grandfathered only to the extent of $10,000? And what about a
bequest of $10,000 to Charity B in Will #2 to replace the
157
The total value of the testator’s estate is $150,000, so fifty percent of that
amount equals $75,000. Since the $40,000 of New Jersey realty is effectively devised to
charity, not more than $35,000 of New York property may be so devised.
158
Stephenson v. Short, 92 N.Y. 433, 444-45 (1883).
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bequest to Charity A? Most mortmain statutes were silent on
these points. The mortmain statutes of at least two states,
however, Florida and Pennsylvania, contained language
intended to address these problems, but the language created
new problems of its own. Florida’s six-month deathbed
mortmain statute did not apply in cases where the “testator, by
his will duly executed immediately next prior to such
[deathbed] last will and more than six months before his death,
[had] made a valid charitable bequest or devise in substantially
the same amount for the same purpose or to the same
beneficiary.”159 The exception in the Pennsylvania statute was
for “an identical gift for substantially the same religious or
charitable purpose.”160 The Pennsylvania language was slightly
more specific as to amount than the Florida language
(“identical gift” is more specific than “substantially the same
amount”), while the Florida language was slightly more specific
as to purposes (“the same purpose” as compared with
“substantially the same . . . purpose”). But in each case the
more specific language was so specific that courts could hardly
have interpreted it strictly. For example, in In re Estate of
Rauf,161 the testator, more than six months before her death,
executed a will bequeathing the residue of her estate to two
charities: the Salvation Army of New York City and a Cancer
Fund in New York. Within six months of her death, she
executed a new will leaving the residue of her estate to three
charities: the Salvation Army at Ocala, Florida; the Marion
County Heart Association; and Father Flanagan’s Boys’
Home.162 The court held that the three residuary bequests in
the deathbed will were indeed “for the same purpose” as the
two residuary bequests in her prior will and therefore were
insulated from the reach of the mortmain statute, even though
the charities named in the later will were, with one exception,
not even close to identical with those named in the earlier
will.163
159
160
161
162
163
FLA. STAT. § 731.19 (repealed 1974).
See In re Estate of Prynn, 315 A.2d 265, 266 n.6 (Pa. 1974).
213 So. 2d 31 (Fla. Dist. Ct. App. 1968).
Id. at 32.
Id. at 32-33.
2008]
E.
609
Constitutional Objections to Mortmain Statutes
We have seen that the American mortmain statutes
were deeply flawed. They could be easily circumvented by
making inter vivos gifts or by designating alternative takers in
the event of invalidity. They presented extremely difficult
questions of interpretation. And they jeopardized estate
planning techniques (charitable lead trusts and charitable
remainder trusts, for example) that were needed to preserve a
family’s after-tax wealth. All of these were good reasons for
repealing the statutes, and most of them were in fact repealed
for reasons such as these.164 But a number of mortmain statutes
were held to be not merely unwise but unconstitutional: an
extreme and unwarranted holding.
The Supreme Court of Ohio held that the state’s
mortmain statute165 violated the due process clauses of the Ohio
and U.S. constitutions because the distinction the statute made
between bequests executed within six months before death and
those executed more than six months before death was an
arbitrary, irrational distinction bearing no relation to whether
the particular bequest was the result of unsound judgment or
undue influence.166 That objection cannot reflect a correct
understanding of the requirements of due process inasmuch as
legislatures routinely draw distinctions based on age or time.
Some fifteen-year-olds are better drivers than some twentyyear-olds, but a state is nonetheless permitted to enact and
enforce an inflexible minimum driving age.167 Similarly, when
Congress, anxious to prevent Social Security spousal death
benefits from enriching partners in “sham marriages” entered
into solely for the purpose of obtaining these benefits, enacted a
164
See, e.g., supra note 146 and accompanying text. For a discussion of the
reasons behind the repeal in 1960 of England’s modern mortmain statute, see
Oosterhoff, supra note 18, at 291-95.
165
166
Shriners’ Hosp. for Crippled Children v. Hester, 492 N.E.2d 153, 156 (Ohio
1986). The Supreme Court of Pennsylvania invalidated that state’s mortmain statute
on similar grounds. In re Estate of Cavill, 329 A.2d 503, 505-06 (Pa. 1974). “The statute
strikes down the charitable gifts of one in the best of health at the time of the execution
of his will and regardless of age if he chances to die in an accident 29 days later. On the
other hand, it leaves untouched the charitable bequests of another, aged and suffering
from a terminal disease, who survives the execution of his will by 31 days. Such a
combination of results can only be characterized as arbitrary.” Id. at 505-06; accord In
re Estate of Kinyon, 615 P.2d 174, 176 (Mont. 1980) (invalidating Montana’s mortmain
statute).
167
Andrew Koppelman, Is It Fair to Give Religion Special Treatment?, 2006 U.
ILL. L. REV. 571, 597 (2006).
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provision denying such benefits to surviving spouses whose
marriages had lasted less than nine months,168 the United
States Supreme Court upheld the constitutionality of the
provision, even though not all nine-month marriages are shams
and some sham marriages may last for more than nine
months.169 The Court reasoned:
[T]he question raised is not whether a statutory provision precisely
filters out those, and only those, who are in the factual position
which generated the [legislative] concern reflected in the statute.
Such a rule would ban all prophylactic provisions. . . . The question
is whether [the legislature], its concern having been reasonably
aroused by the possibility of an abuse which it legitimately desired
to avoid, could rationally have concluded both that a particular
limitation or qualification would protect against its occurrence, and
that the expense and other difficulties of individual determinations
justified the inherent imprecision of a prophylactic rule.170
When the Supreme Court of Florida invalidated that
state’s mortmain statute,171 it took the faulty Ohio view,
condemning as irrational the statutory distinction between
bequests made within six months before the testator’s death
and those made six months or more before the testator’s
death.172 The Florida court also condemned the statute’s
differentiation between bequests to charities and those to
individuals: “There is no reason to believe that testators need
more protection against charities than against unscrupulous
and greedy relatives, friends, or acquaintances.”173 And the
District of Columbia mortmain statute174 made a more
troubling distinction—unique among American mortmain
statutes175—between bequests to religious entities (invalid if
made within thirty days of the testator’s death) and bequests to
secular charities (valid regardless of when made). The District
of Columbia Court of Appeals, citing the irrationality of that
distinction, held that the statute violated the due process
clause of the Fifth Amendment.176
168
169
170
171
172
42 U.S.C. § 416(c)(1)(E), (g)(1)(E) (2000).
Weinberger v. Salfi, 422 U.S. 749, 777 (1975).
Id. at 777.
FLA. STAT. ANN. § 732.803 (repealed 1991).
Shriners Hosp. for Crippled Children v. Zrillic, 563 So. 2d 64, 70 (Fla.
1990).
173
Id. at 70.
D.C. CODE ANN. § 18-302 (repealed 1981).
175
See Estate of French v. Doyle, 365 A.2d 621, 622 n.3 (D.C. 1976), appeal
dismissed on other grounds, 434 U.S. 59 (1978).
176
Id. at 624-25.
174
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The District of Columbia’s unique mortmain distinction
between religious charities and secular charities might indeed
have raised constitutional questions concerning the freedom of
religion.177 However, a statutory rule distinguishing between all
charities on the one hand and all noncharities on the other does
not implicate First Amendment values. In the famous peyote
case, Employment Division v. Smith,178 the United States
Supreme Court held that “the right of free exercise does not
relieve an individual of the obligation to comply with a valid
and neutral law of general applicability on the ground that the
law proscribes . . . conduct that his religion prescribes . . . .”179
But what about the Florida Supreme Court’s opinion
that the state mortmain statute’s charity/noncharity
distinction, because of its arbitrariness, violated not the free
exercise principle but the equal protection clause?180 Even if the
state’s purpose in enacting the statute is legitimate, “Equal
protection analysis,” said the Florida court, “requires that
classifications be neither too narrow nor too broad to achieve
[that] desired end.”181 The court reasoned that the mortmain
statute was simultaneously too narrow and too broad: too
narrow insofar as it failed to invalidate bequests to
unscrupulous noncharitable legatees who were guilty of
overreaching, and too broad insofar as it invalidated bequests
to charitable legatees who were innocent of overreaching.182
Was the Florida court correct in its equal protection analysis?
Since the right to bequeath one’s property is an
economic and not a fundamental right,183 proper equal
177
The trial court had found that the mortmain statute did indeed violate the
First Amendment, but the appellate court, finding the due process objection
determinative, expressly declined to consider the First Amendment issue. Id. at 623.
The issue of freedom of religion is discussed in more detail infra in the text
accompanying notes 325-378.
178
494 U.S. 872 (1990); see also infra text accompanying notes 326-331.
179
Smith, 494 U.S. at 879 (internal punctuation and citations omitted); accord
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). “[A] law that is
neutral and of general applicability need not be justified by a compelling governmental
interest even if the law has the incidental effect of burdening a particular religious
practice.” Id. at 531.
180
Shriners Hosp. for Crippled Children v. Zrillic, 563 So. 2d 64 (Fla. 1990).
181
Id. at 69-70.
182
Id. at 70.
183
In 1942, the United States Supreme Court famously declared:
Rights of succession to the property of a deceased, whether by will or by
intestacy, are of statutory creation, and the dead hand rules succession only
by sufferance. Nothing in the Federal Constitution forbids the legislature of a
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protection analysis rests with the so-called “rational basis”
test,184 and “rational basis” does not demand “mathematical
nicety.”185 In Dandridge v. Williams,186 for example, the State of
Maryland had imposed a $250 cap on the monthly amount of
need-based benefits that the state paid to any one family
pursuant to its Aid to Families with Dependent Children
(“AFDC”) program. Because the same dollar cap applied to both
large families and small ones, despite the presumably greater
financial need of the former, the petitioners argued that the
dollar cap “operate[d] to discriminate against them merely
because of the size of their families, in violation of the Equal
Protection Clause of the Fourteenth Amendment.”187 The
essence of the petitioners’ argument was one of overbreadth.
Maryland imposed the cap, in part, to limit the financial
benefits of unemployment and thereby encourage gainful
employment;188 yet, argued petitioners, the cap was imposed
even on families in which no one was employable: that is,
families who could not possibly respond to that statutory
incentive.189 (The statute was impliedly underbroad as well. If a
family’s actual needs were below the $250 cap, such a family’s
AFDC grants would equal their needs, so the statutory scheme
and its cap would in that case generate no effective pressure to
seek employment.) The United States Supreme Court rejected
state to limit, condition, or even abolish the power of testamentary
disposition over property within its jurisdiction.
Irving Trust Co. v. Day, 314 U.S. 556, 562 (1942) (punctuation altered). In 1987, the
Court held that the federal government’s abrogation of the right to bequeath certain
fractional interests in aboriginal tribal lands amounted to a “taking” of property that
required compensation pursuant to the Fifth Amendment. Hodel v. Irving, 481 U.S.
704, 717-18 (1987). Some scholars regarded Hodel as a signal that the Court was
retreating from its 1942 rejection of a constitutional basis for a right to bequeath, while
others read Hodel as creating only a minor exception to Irving Trust. See Sherman,
supra note 58, at 1288-89. Noteworthy is the fact that state courts, long after Hodel
was decided, continued to declare—and to cite pre-Hodel cases—that the right to
bequeath is not a natural right but rather a statutory privilege. See, e.g., Estate of
Della Sala v. Father Flanagan’s Boys’ Home, 86 Cal. Rptr. 2d 569, 572 (Cal. Ct. App.
1999); Thompson v. Hardy, 43 S.W.3d 281, 285 (Ky. Ct. App. 2000); In re Estate of
Long, 600 A.2d 619, 622 (Pa. Super. Ct. 1992).
184
See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 33-34 (1987) (Stevens, J.,
concurring); Dandridge v. Williams, 397 U.S. 471, 486-87 (1970).
185
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911). “Strict
scrutiny” analysis does require mathematical nicety, often phrased as a requirement
that the legislature choose “the least restrictive means of achieving” its end. Thomas v.
Review Bd. Of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981).
186
397 U.S. 471 (1970).
187
Id. at 475.
188
Id. at 483.
189
Id. at 486.
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613
the petitioners’ constitutional challenge, pointing out that
while overbreadth could be a constitutionally fatal flaw in
statutes impinging on First Amendment rights, it was an
irrelevant consideration under the “rational basis” standard
applicable to economic or social regulation.190
[T]he Equal Protection Clause does not require that a State must
choose between attacking every aspect of a problem or not attacking
the problem at all. It is enough that the State’s action be rationally
based and free from invidious discrimination.191
A state has a legitimate interest in regulating the
devolution of property at death: that is, an interest in fostering
an orderly transfer of material resources from one generation
to the next. While a state could constitutionally abolish the
right of testation and require that all estates devolve pursuant
to the state’s intestacy statute,192 all states do in fact permit
property owners to direct the devolution of their estates upon
death.193 But in the absence of specific testamentary directions
from a decedent, the state’s intestacy statute prescribes the
manner in which the decedent’s property is to be distributed.
This statutory distribution scheme is designed to approximate
the distribution that decedents would have adopted had they
made a will;194 indeed, the seventeenth century jurist Hugo
Grotius believed that the very legitimacy of the rules of
intestate succession depended on their correspondence with the
presumed intentions of decedents.195 Thus, if a decedent
expresses a desire to have her estate distributed to persons
other than—or in shares different from—those set forth in the
intestacy statute, she is expressing desires different from those
the state presumes her to have. Consequently, a state acts
rationally when it demands that the decedent express those
unpredicted individuated wishes in a manner and under
190
Id. at 484-85.
Id. at 486-87 (citing Lindsley, 220 U.S. at 61). The Court’s language here
was quite similar to the language it would use five years later in Weinberger v. Salfi,
422 U.S. 749, 785 (1975), when it held that overbreadth had no bearing on a due
process challenge to a piece of social/economic regulation. See supra text accompanying
notes 168-170.
192
See supra note 183.
193
See RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE
TRANSFERS, Introduction (2003).
194
See King v. Riffee, 309 S.E.2d 85, 87-88 (W. Va. 1983); see also John T.
Gaubatz, Notes Toward a Truly Modern Wills Act, 31 U. MIAMI L. REV. 497, 501 (1977).
195
See Stanley N. Katz, Republicanism and the Law of Inheritance in the
American Revolutionary Era, 76 MICH. L. REV. 1, 4 (1977).
191
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circumstances suggesting particular thoughtfulness and
voluntariness.196 Inasmuch as American intestacy statutes
without exception prescribe distributions only to natural
persons related to the decedent by blood or marriage,197 a state
likewise acts rationally when it subjects to particular scrutiny
bequests in favor of persons outside those categories: notably,
corporate bodies such as religious or secular charities.
Scholars have identified other state objectives
underlying intestacy statutes: objectives related not to the
presumed intentions of property owners but rather to the
interests of society as a whole. But these societal objectives,
too, suggest that a state may properly subject institutional
bequests to special scrutiny. For example, some scholars have
observed that intestacy statutes serve society’s interests by
“protect[ing] the financially dependent family [and by] . . .
promot[ing] and encourag[ing] the nuclear family.”198 Clearly
the state has an interest in thwarting a testator who intends,
by bequeathing his property to nonfamily members, to
pauperize his dependents and leave to the state the burden of
supporting them. Another societal interest served by intestacy
statutes is the avoidance of disharmony within the particular
family and the avoidance of disdain for the legal system
generally that would be spawned by a distribution scheme that
potential recipients regarded as unwise or unfair.199
It should be self-evident that excessive or impulsive
bequests to charity are especially calculated to engender
feelings of resentment and ill-usage among all the testator’s
family members200 (not merely the particular family members
who receive less than other particular family members), and
196
The formal requirements that states impose by statute on the execution of
wills—e.g., the requirement that the document be signed by the testator and attested
by witnesses in the testator’s presence—are designed in part to reassure courts that
the testator understood the legal consequences of her act and that she was free from
imposition at the time she performed that act. Gulliver & Tilson, supra note 5, at 1-10.
And if, despite those formal precautions, the testator executes a will that—because of
fraud, duress, or undue influence by extrinsic parties—does not represent her wishes,
the document will be declared invalid.
197
Most states’ intestacy statutes prescribe identical treatment for siblings of
the half-blood and siblings of the whole-blood. Susan N. Gary, Adapting Intestacy Laws
to Changing Families, 18 LAW & INEQ. 1, 2 n.9 (2000).
198
Mary Louise Fellows et al., Public Attitudes About Property Distribution at
Death and Intestate Succession Laws in the United States, 1978 AM. B. FOUND. RES. J.
319, 324 (1978).
199
LAWRENCE W. WAGGONER ET AL., FAMILY PROPERTY LAW 2-5 (4th ed.
2006).
200
See supra text accompanying notes 119-121.
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615
thus a state bent on minimizing such unpleasantness could
quite rationally treat each charitable bequest as a potential
intrafamilial casus belli.201 Moreover, the special indulgences
accorded charitable transfers, including the exemption from
the rule against perpetuities, give the state cause for even
greater concern than in the case of bequests to individuals.202
The key words here are “excessive” and “impulsive.”
How might a state preclude “excessive” charitable bequests
while continuing to allow nonexcessive ones? The state might
authorize probate judges to strike down or reduce those
charitable bequests that they regard as unreasonably large, but
such a free-floating discretionary power would make reliable
tax planning impossible, since attorneys would have no way of
predicting the portion of a client’s estate that would end up
passing to charity, and every will containing a charitable
bequest would be potentially subject to judicial modification.
Furthermore, judges would be asked to make a determination
of “reasonableness” unmoored to any definable standards, and
wildly inconsistent holdings could be expected. On the other
hand, the fixed percentage limits imposed by American
mortmain statutes of the “percentage restriction” type203
represent a more practicable approach to the excessiveness
problem; and the inflexibility of such arithmetic, prophylactic
solutions does not render them constitutionally objectionable.204
How might a state preclude “impulsive” charitable
bequests while continuing to allow thoughtful ones? If the
impulse emanates from another person, the doctrine of “undue
influence” might furnish a solution by invalidating the bequest.
If the impulse is largely self-generated, proof of a lack of
“testamentary capacity” might work. Both doctrines proceed on
201
A number of courts, in deciding whether a doubtful charitable gift is
invalid, have taken into account the family status of those objecting to the gift, leaning
towards overturning the gift when the objectants were close relatives of the transferor
and toward upholding the gift when the objectants were distant relatives. For example,
in Wilber v. Owens, 65 A.2d 843 (N.J. 1949), the Supreme Court of New Jersey upheld
the vice-chancellor’s decision to rescue a dubious charitable gift by applying cy pres, id.
at 848, and, in upholding the decision, the Court noted that the testator “had no kin
nearer than first cousins.” Id. at 846; accord Howard Sav. Inst. v. Peep, 170 A.2d 39, 45
(N.J. 1961). See generally Robert J. Lynn, The Questionable Testamentary Gift to
Charity: A Suggested Approach to Judicial Decision, 30 U. CHI. L. REV. 450, 463-65
(1963). State legislators displayed a similar instinct when they enacted mortmain
statutes that invalidated charitable bequests only when challenged by particular
relatives. See supra text accompanying notes 137-139.
202
See supra notes 3, 74-76, and 85.
203
See supra text accompanying note 125.
204
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the notion that, had the testator not been subjected to undue
influence or not been laboring under some sort of mental
aberration, he would not have made the challenged bequest;
and therefore the state acts rationally when it refuses to give
effect to the bequest of a testator whose volition was so
undermined. But actual evidence of undue influence or mental
deficiency is rare. Will contestants generally must rely on
circumstantial evidence to prove their case,205 and the
availability of circumstantial evidence cannot always be
counted upon. If a testator whose prior wills contained no
charitable bequests writes a deathbed will bequeathing
property to a particular secular or religious charity, it seems
not unreasonable to infer that, had he not been facing a
fearfully imminent death, he would have acted differently or
not acted at all.206 Rather than relying upon the difficult and
time-consuming task of sifting through circumstantial evidence
that the testator’s own morbid notions or the pressure of
another person undermined the testator’s mental faculties, a
state acts rationally when it decides upon a prophylactic rule,
however imprecise,207 like a mortmain statute of the deathbed
type.
II.
A SUMMARY OF THE LAW OF UNDUE INFLUENCE
Although mortmain statutes can respond effectively—
and constitutionally—to a problem that continues to blight
American families’ lives, the harshness and inflexibility of
those statutes argue against their reenactment. Consequently,
the doctrine of undue influence must continue to serve as the
primary bulwark against the imposition by charitable or
religious organizations upon the mind and free agency of
anxious testators.208
205
See infra text accompanying note 215.
Indeed, scholars, judges, and legislatures have, for centuries, questioned
the propriety of deathbed charitable bequests. See supra notes 1, 17, 18, 59, 101, 118,
and 123 and accompanying text.
207
208
Although mortmain statutes applied only to testamentary transfers, the
doctrine of undue influence applies to both testamentary and inter vivos conveyances.
In determining whether a conveyance resulted from undue influence, courts generally
apply the same standards in the testamentary and inter vivos contexts. MCGOVERN &
KURTZ, supra note 73, § 7.3. Consequently, this portion of the Article will cite, without
distinguishing between them, both challenges to testamentary transfers and challenges
to inter vivos transfers, unless clarity or doctrinal accuracy demands that the
distinction be made. As to differences in the limitations rules applicable to these two
types of challenges, see John B. Jarboe, Undue Influence and Gifts to Religious
206
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If a purported will does not represent the wishes of the
testator who signed it, the instrument is not a valid will, and
the court having jurisdiction over the matter will refuse to
admit the instrument to probate. The charge of undue
influence, as a ground for contesting a will, is a charge that the
will reflects not the wishes of the testator but rather those of a
person who destroyed the testator’s free agency and caused him
to execute a will representing the wishes of that other person.
This displacement or substitution of agency is the vital
underpinning of undue influence, since people persuade people
every day without destroying free agency and without
invalidating wills that reflect such persuasion.209 For influence
to be “undue,” it must amount to more than “the influence
which springs from natural affection or kind offices[; it must
instead spring] from fear, coercion, or any other cause that
deprives the testator of this free agency in the disposition of
property. . . .”210 But however malign or sinister may be the
intentions of a person charged with imposition upon the
testator, her conduct does not constitute undue influence
unless it caused the testator to execute a will that did not
represent his own wishes.211 And conversely (and more
important, for purposes of this Article), the propriety or even
beneficence of an influencer’s motives will not protect a
purported will from a successful contest if that influence in fact
overcame the testator’s free agency.212 The purpose of the
doctrine is not to deprive wrongdoers of their ill-gotten gains213
Organizations, 35 CATH. LAW. 271, 273 (1994). As to differences relating to a certain
evidentiary presumption, see infra text accompanying notes. 278-287.
209
Henderson v. Jackson, 111 N.W. 821, 823 (Iowa 1907).
210
Carpenter v. Horace Mann Life Ins. Co., 730 S.W.2d 502, 507 (Ark. Ct.
App. 1987).
211
1 WILLIAM HERBERT PAGE, PAGE ON THE LAW OF WILLS § 15.6 (2003).
212
In re Craven’s Will, 86 S.E. 587, 591-92 (N.C. 1915); Anderson v.
Brinkerhoff, 756 P.2d 95, 100 (Utah Ct. App. 1988); see Carpenter, 730 S.W.2d at 505
(stating that moral turpitude on the part of the influencer is not required for undue
influence to be found).
213
Some laws relating to wills do indeed target wrongdoers. The law of almost
every American jurisdiction bars an intestate decedent’s murderer from inheriting any
portion of the victim’s estate, even though the murderer is an heir of the decedent. See
Jeffrey G. Sherman, Mercy Killing and the Right to Inherit, 61 U. CIN. L. REV. 803, 84447 (1993). In some states, a person convicted of the abuse or financial exploitation of an
intestate elderly or disabled person is likewise barred from inheriting from the victim,
even though the wrongdoer is an heir. See, e.g., 755 ILL. COMP. STAT. ANN. 5/2-6.2
(2007). But the law of undue influence does not target wrongdoers as such. If a
decedent’s will is declared invalid on the ground of undue influence, with the result
that the decedent becomes intestate, the person successfully charged with exerting
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but rather to ensure that the testamentary wishes given effect
by the probate court truly are the testator’s wishes: that is, to
ensure that the will is not “the product of a captive mind.”214
Because undue influence is generally exerted in secret,
direct evidence of such influence almost never exists; a finding
of undue influence is usually based entirely on circumstantial
evidence.215 And to that end, black-letter law traditionally
identifies four elements of the circumstantial case: four
elements that need to be proved in order for a will to be
rejected on the ground of undue influence. Despite the
circularity of this four-part “test,” courts and commentators
quote it so often that it is worth quoting again. It must be
shown
(1) that the testator was susceptible to undue influence, (2) that the
influencer had the disposition or motive to exercise undue influence,
(3) that the influencer had the opportunity to exercise undue
influence, and (4) that the disposition is the result of the influence.216
Some of these elements require further elaboration.
Although the first of these four elements presupposes that the
testator’s condition or circumstances rendered him especially
susceptible to influence,217 this element does not require that
the testator have been so far gone as to lack the mental
capacity to make a valid will.218 Indeed, strictly speaking, a
claim of undue influence is logically inconsistent with a claim
of testamentary incapacity inasmuch as undue influence
undue influence may still share in the decedent’s intestate property if he or she is an
heir of the decedent. In re Randall’s Estate, 132 P.2d 763, 766 (Idaho 1942).
214
PAGE, supra note 211, at § 15.3.
215
In re Ferrill’s Will, 640 P.2d 489, 493 (N.M. Ct. App. 1981); see Smith v.
Moore, 176 So. 2d 868, 871 (Ala. 1965); In re Estate of Olsson, 344 S.W.2d 171, 173-74
(Tex. Civ. App. 1961); see also In re The Bible Speaks, 869 F.2d 628, 642 (1st Cir. 1989),
cert. denied, 493 U.S. 816 (1989).
216
DUKEMINIER ET AL., supra note 85, at 159; accord Burgess v. Bohle (In re
Hull’s Estate), 146 P.2d 242, 245 (Cal. Ct. App. 1944); In re Estate of Herbert, 979 P.2d
39, 53 (Haw. 1999); In re Estate of Opsahl, 448 N.W.2d 96, 100 (Minn. Ct. App. 1989);
Estate of Kamesar, 259 N.W.2d 733, 737-39 (Wis. 1977).
217
See, e.g., Gardiner v. Goertner, 149 So. 186, 189 (Fla. 1932); Wallace v.
Scott, 844 S.W.2d 439, 441 (Ky. Ct. App. 1992); In re Cotcher’s Estate, 264 N.W. 325,
327 (Mich. 1936).
218
In re Estate of Miller, 778 N.E.2d 262, 267 (Ill. App. Ct. 2002). To lack the
mental capacity to write a valid will, a testator must be very “far gone” indeed; a
person who lacks sufficient mental capacity to write an enforceable contract or to
manage his own property may still have sufficient mental capacity to execute a valid
will. Gibony v. Foster, 130 S.W. 314, 323 (Mo. 1910); see Bye v. Mattingly, 975 S.W.2d
451, 456 (Ky. 1998) (“Merely . . . possessing a failing memory, momentary
forgetfulness, weakness of mental powers or lack of strict coherence in conversation
does not render one incapable of validly executing a will.”).
2008]
619
postulates that a decedent’s testamentary intent was overcome
by another person while testamentary incapacity postulates
that the decedent was incapable of forming any testamentary
intent in the first place.219 In point of fact, however, many
contestants who challenge a will on undue influence grounds do
also raise separate objections based on lack of testamentary
capacity,220 for the two doctrines are more closely related than
strict logic would indicate: a relation that implicates the fourth
element of undue influence.
The fourth element of undue influence—often reworded
coveted result by Wisconsin courts221—requires that the
provisions of the will appear on their face to reflect the desires
of the alleged influencer rather than reflecting what one would
suppose to be the “natural” desires of the testator: that is, that
the will fail to provide for the natural objects of the testator’s
bounty. Thus, a substantial bequest to a mere casual
acquaintance suggests undue influence when the testator’s
father was still living at the time she executed her will,222 as
does a substantial bequest to a housekeeper to the exclusion of
several nieces and nephews who had been named in prior
wills.223 “Unnatural” provisions are hardly conclusive proof of
undue influence—indeed, a testator is theoretically permitted
to be as arbitrary and unfair in her will as she wishes without
thereby forfeiting the right to have her testamentary directions
honored224—but they do raise suspicions of such influence. And
219
In re Estate of Aageson, 702 P.2d 338, 342 (Mont. 1985).
See, e.g., First Sec. Bank & Trust Co. v. Christianson (In re Estate of
Dankbar), 430 N.W.2d 124, 127 (Iowa 1988); Hodges v. Hodges, 692 S.W.2d 361, 365
(Mo. Ct. App. 1985); McKee v. Stoddard, 780 P.2d 736, 740 (Or. Ct. App. 1989); Gold’s
Estate, 182 A.2d 707, 709 (Pa. 1962); In re Estate of Burt, 169 A.2d 32, 34-35 (Vt.
1961).
221
See, e.g., Lee ex rel. Estate of Kamesar v. Kamesar (In re Estate of
Kamesar), 259 N.W.2d 733, 737 (Wis. 1977).
222
See In re Estate of Dankbar, 430 N.W.2d at 131.
223
See In re Will of Ridge, 275 S.E.2d 424 (N.C. 1981). In most successful will
contests based on undue influence, the influencer is named as a beneficiary. That is,
the result “coveted” by the influencer was financial benefit for himself. But occasionally
an influencer might pressure a testator to benefit someone else, and such pressure can
still constitute undue influence even though the influencer was not himself a
beneficiary. Bedree v. Bedree, 528 N.E.2d 1128, 1129 (Ind. Ct. App. 1988) (the
influencer was the grantor’s husband; the grantees were his sisters); Needels v.
Roberts, 879 S.W.2d 550, 551 (Mo. Ct. App. 1994) (the influencer was the testator’s
wife; the beneficiary was the wife’s son by a prior marriage); Suagee v. Cook (In re
Estate of Maheras), 897 P.2d 268, 274 (Okla. 1995) (the influencer was a pastor; the
beneficiary was the pastor’s church).
224
See, e.g., Joseph v. Grisham 482 S.E.2d 251, 252 (Ga. 1997) (upholding a
will even though the testator disinherited her children in favor of her grandchildren);
Nelson v. O’Connor, 473 P.2d 161, 162-63 (Or. 1970) (upholding a will even though the
220
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not only do unnatural bequests support an inference of undue
influence, they may also support an inference of testamentary
incapacity. A testator, to be judged mentally competent, must
know and understand who the natural objects of her bounty
are.225 Consequently, a will that “unnaturally” prefers strangers
in blood to significant family members may suggest not only
the pernicious influence of an outsider (undue influence) but
also a failure on the testator’s part to know the identities of the
natural objects of her bounty (testamentary incapacity).
Because a testator possessed of a normal strength of will is
unlikely to yield to undue influence, Lawrence Frolik has
suggested that a finding of undue influence presupposes an
intermediate level of mental deficiency, neither fully capable
nor fully incapable.226 He calls it “marginal testamentary
capacity,” between that of the fully incapacitated testator, who
is barred from executing any will at all, and that of the
“normal” testator, who is permitted to execute any will at all,
including an “unnatural” one.227
For influence to be “undue” in the context of a will
contest, the influence must have operated at the time the
testator executed his will. The influencer’s actual conduct need
not have coincided with the execution; what is required is only
that the constraining effect of that conduct have been felt by
the testator at the very time he executed his will.228 In Trust
testator disinherited her only child in favor of her neighbor); see also Clapp v.
Fullerton, 34 N.Y. 190, 197 (1866) (“The right of a testator to dispose of his estate,
depends neither on the justice of his prejudices nor the soundness of his reasoning. He
may do what he will with his own; and if there be no defect of testamentary capacity,
and no undue influence or fraud, the law gives effect to his will, though its provisions
are unreasonable and unjust.”).
225
Wrigley v. Wrigley (In re Estate of Wrigley), 433 N.E.2d 995, 1003 (Ill. App.
Ct. 1982); Bye v. Mattingly, 975 S.W.2d 451, 455 (Ky. 1998); Estate of Record, 534 A.2d
1319, 1321 (Me. 1987); In re Will of Wasson, 562 So. 2d 74, 77 (Miss. 1990).
226
Lawrence A. Frolik, The Strange Interplay of Testamentary Capacity and
the Doctrine of Undue Influence: Are We Protecting Older Testators or Overriding
Individual Preferences?, 24 INT’L J.L. & PSYCHIATRY 253, 264-66 (2001).
227
Id.
228
Tobin v. Jenkins, 29 Ark. 151, 157 (1874); Trust Co. of Ga. v. Ivey, 173 S.E.
648, 654 (Ga. 1934); Tawney v. Long, 76 Pa. 106, 115 (1874).
In 1983, the Idaho legislature, concerned that for-profit nursing homes
might exert undue influence on residents to induce them to bequeath property to the
homes, enacted a statute making such bequests void in certain circumstances. 1983
Idaho Sess. Laws, ch. 236, § 1, at 642. Originally, the statute applied only if the
testator resided at the legatee-home at the time the will containing such a bequest was
executed. In 1994, when the statute was amended to create a mere presumption of
undue influence rather than an absolute bar to such bequests, the legislature removed
the requirement that the testator had to be in residence when the will was executed
(though the testator still had to have resided in the legatee-home within one year of his
2008]
621
Co. of Georgia v. Ivey, for instance, a will was successfully
challenged on the basis of the undue influence of a person who
had already died by the time the testator executed the
contested instruments.229 The testator’s wife, Dosia, had written
a will leaving the entire residue of her estate for the founding
of a residence for elderly “gentlewomen.”230 Evidence was
introduced showing that when Doria learned that the will
executed by her husband made no provision for Dosia’s pet
project, Dosia harassed him with constant appeals and threats
and warned him that he would never again live peaceably with
her unless he changed his will to suit her wishes.231 And the
testator, a man in a weakened and diseased condition, was
thereby induced to change his will so as to bequeath
substantial assets to Dosia’s residence.232 Dosia predeceased the
testator, yet even after her death, the testator executed two
codicils increasing the share of his estate that would pass to
Doria’s residence.233 After rejecting on undue influence grounds
the last will that the testator had executed while Dosia was
still live, the court also rejected these last two codicils on the
ground of Dosia’s posthumous undue influence over her
husband.234 “[T]he influence and domination of [Dosia] over [the
testator] . . . [was] so complete and deep rooted that they
persisted even after the death of [Dosia], and continued to
dominate and control his will and to substitute her will
therefore [sic], in the disposition of his estate . . . .”235
Dosia’s conduct as reported in the Ivey case illustrates
one kind of conduct that can constitute undue influence. What
other kinds of conduct might amount to undue influence? If
they succeed in overcoming a testator’s free agency, threats of
violence can certainly constitute undue influence,236 though
they might be more properly characterized as duress inasmuch
death for the statute to apply). 1994 Idaho Sess. Laws, ch. 350, § 1, p. 1110. The statute
is now codified at IDAHO CODE § 15-2-616 (2007). By removing the requirement of
contemporaneous residence, the legislature implicitly acknowledged that the effect of
undue influence can continue to be felt by its target even after the influential conduct
has ceased.
229
Trust Co. of Georgia v. Ivey, 173 S.E. 648, 655 (Ga. 1934).
230
Id. at 649.
231
Id. at 651.
232
Id.
233
Id. at 652-53.
234
Id. at 655.
235
Id. at 652.
236
See, e.g., Gay v. Gillilan, 5 S.W. 7, 10 (Mo. 1887).
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as such threats are criminal violations of the law.237 But threats
to do perfectly legal acts—threats to divorce the testator,238
threats to bring a criminal prosecution against the testator,239
threats to abandon a sick or imperiled testator,240 threats to put
the testator in a nursing home241—can likewise constitute
undue influence.242 A pattern of harassing requests for money
can constitute undue influence.243 Playing upon the testator’s
religious beliefs or beliefs in spiritualism can likewise
constitute undue influence.244 So too can a pattern of behavior
calculated to isolate the testator from the natural objects of her
bounty, either isolating her emotionally by making false
statements about those objects or isolating her physically.245
The fact that the influential statements made to the
testator were true, or that the influencer believed them to be
true, will not prevent a proper finding of undue influence.246
Undue influence is not fraud. One can find the occasional old
case that describes undue influence as a “species of fraud,”247
but such usage is mere shorthand. Indeed, one of these old
237
See MCGOVERN & KURTZ, supra note 73, at 305.
Needels v. Roberts, 879 S.W.2d 550, 551 (Mo. App. 1994).
239
In re Brunor, 47 N.Y.S. 681, 684-85 (App. Div. 1897).
240
Pohlmann v. Naschel (In re Pohlmann’s Estate), 201 P.2d 446, 452 (Cal.
App. 1949); In re Sickles’s Will, 50 A. 577, 579 (Prerog. Ct. N.J. 1901), aff’d, 53 A. 1125
(Ct. Err. & App. N.J. 1902).
241
In re Panek, 667 N.Y.S.2d 177, 179-80 (App. Div. 1997).
242
One should keep in mind, of course, that if these threats do not in fact
deprive the testator of his free agency, the threats do not constitute undue influence.
See, e.g., Kirby v. Manies, 351 S.W.2d 429, 430 (Ark. 1961) (finding that a threat by the
testator’s step-grandson to abandon her if she failed to make a will in his favor did not
constitute undue influence inasmuch as the testator was not in any way helpless or
dependent).
243
Erb v. Lee, 430 N.E.2d 869, 872 (Mass. App. Ct. 1982).
244
In re Bishop’s Estate, 39 P.2d 201, 201-02 (Cal. 1934); Orchardson v.
Cofield, 49 N.E. 197, 202 (Ill. 1897); see also Ingersoll v. Gourley, 139 P. 207 (Wash.
1914). In this last case, the trial court had held the will invalid on the grounds of both
testamentary incapacity and undue influence. Id. at 207. The state supreme court
affirmed the trial court’s finding of testamentary incapacity but did not address the
issue of undue influence. Id. at 209.
245
In re Stoddart’s Estate, 163 P. 1010, 1011-13 (Cal. 1917) (finding that
allegations that influencers told the testator that her married daughters had married
extravagant husbands who were likely to dissipate any inheritance were sufficient to
state an undue influence claim); Cox v. Wall, 179 N.E.2d 815, 816-17 (Mass. 1962)
(physical isolation); McPeak v. McPeak, 593 N.W.2d 180, 185 (Mich. App. 1999)
(finding that a lengthy “pattern of conduct directed at isolating” the decedent sustained
a finding of undue influence).
246
Roberts-Douglas v. Meares, 624 A.2d 405, 420 (D.C. Ct. of App. 1992),
modified on other grounds and reaff’d, 624 A.2d 431 (D.C. 1993); see also Gockel v.
Gockel, 66 S.W.2d 867, 870 (Mo. 1933); Corrigan v. Pironi, 23 A. 355, 355 (N.J. 1891).
247
See, e.g., Coghill v. Kennedy, 24 So. 459, 468 (Ala. 1898); Flanigan v.
Smith, 169 N.E. 767, 769 (Ill. 1929).
238
2008]
623
cases that use the inaccurate “species of fraud” phrase goes on
immediately to state the law correctly:
Deceit is the use of any trick, false statement, secret device, or false
pretense to defraud another; and it is clear that undue influence may
be exercised without the use of any of these means,—for example,
through the imposition of fear, or constant importunity, to which the
testator yields from a desire for peace. It was not necessary to aver
that fraud or deceit was practiced upon the testatrix [to justify an
inference of undue influence].248
Doctrinally, the distinction between fraud and undue
influence is clear. In a case of undue influence, the testator’s
free agency has been destroyed, and the will does not represent
her wishes. In a case of fraud, the testator’s free agency is
unimpaired and the will does indeed represent her wishes, but
she formulated her wishes on the basis of false information
deceitfully proffered.
In a will contest brought on the ground of undue
influence, the contestant bears the burden of persuasion.249 In
some jurisdictions, this burden must be met by clear and
convincing evidence;250 other jurisdictions require only a
preponderance of the evidence.251 Because a contestant usually
has available to him only circumstantial evidence with which
to meet this burden,252 courts have attempted to ease the
contestant’s difficulties by developing a two-part test that can
enable him to raise a presumption of undue influence:
A presumption of undue influence arises if [1] the alleged
[influencer253] was in a confidential relationship with the [testator]
and [2] there were suspicious circumstances surrounding the
preparation, formulation, or execution of the [will] . . . .254
248
Coghill, 24 So. at 468.
See, e.g., Williams v. Thornton, 145 So. 2d 828, 829 (Ala. 1962); In re
Estate of Herbert, 979 P.2d 39, 54 (Haw. 1999); In re Estate of Kline, 613 N.E.2d 1329,
1336-37 (Ill. App. Ct. 1993); Martin v. O’Connor, 406 S.W.2d 41, 43 (Mo. 1966).
250
See, e.g., Russo v. Miller, 559 A.2d 354, 357 (Me. 1989); Anthony v.
Evangelical Lutheran Church (In re Anthony), 121 N.W.2d 772, 776-77 (Minn. 1963).
251
See, e.g., In re Estate of Herbert, 979 P.2d 39, 54 (Haw. 1999); In re Estate
of Duebendorfer, 721 N.W.2d 438, 447 (S.D. 2006).
252
253
The Restatement uses the word “wrongdoer,” not “influencer.”
RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS § 8.3 (2001).
I believe “wrongdoer” to be an ill-advised term in this context inasmuch as the
influencer’s conduct need not be wrongful to be undue. See supra note 212.
254
RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS
§ 8.3 cmt. f (2001) (emphasis added); see In re Ferrill’s Will, 640 P.2d 489, 493 (N.M. Ct.
App. 1981); Knutsen v. Krippendorf, 862 P.2d 509, 515 (Or. Ct. App. 1993). It should be
249
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A confidential relationship is a relationship of
inequality: a relationship in which the testator reposes an
exceptional degree of reliance on the integrity and loyalty of
another, either because of that other person’s knowledge or
status or because of the testator’s dependence or subservience.
Some relationships—known in law as fiduciary relationships—
are confidential relationships as a matter of law. For example,
the law imposes fiduciary duties on an attorney vis-à-vis her
client; therefore, for purposes of this presumption of undue
influence, the testator’s attorney is in a confidential
relationship with the testator.255 Similarly, the relationship
between the trustee of a trust and the beneficiary of that trust
is a confidential relationship,256 as is the relationship between a
court-appointed guardian and her ward.257
Outside the narrow confines of fiduciary relationships,
the existence or nonexistence of a confidential relationship
between influencer and testator has been treated as a question
of fact.258 Such nonfiduciary confidential relationships generally
fall into one of two categories, reliant relationships and
dominant-subservient relationships,259 although the categories
often overlap. The first category comprises relationships based
noted that the contestant need not establish the existence of a confidential relationship
to win her case. That is, undue influence can be found even though no confidential
relationship existed between the alleged influencer and the testator. Blits v. Blits, 468
So. 2d 320, 321 (Fla. Dist. Ct. App. 1985). A finding of a confidential relationship is a
requirement only of raising this presumption of undue influence. But this presumption
has considerable practical importance, and many a will has been set aside on undue
influence grounds where a confidential relationship existed that would not have been
set aside in the absence of a confidential relationship. See Roberts-Douglas v. Meares,
624 A.2d 405, 421 (D.C. 1992), modified on other grounds and reaff’d, 624 A.2d 431
(D.C. 1993).
255
See, e.g., Allen v. Estate of Dutton, 394 So. 2d 132, 134 (Fla. Dist. Ct. App.
1980); In re Estate of Novak, 458 N.W.2d 221, 224, 227 (Neb. 1990); Haynes v. First
Nat’l State Bank of New Jersey, 432 A.2d 890, 897 (N.J. 1981); In re Putnam’s Will,
177 N.E. 399, 400 (N.Y. 1931).
256
See, e.g., In re Estate of Cass, 719 A.2d 595, 598 (N.H. 1998).
257
Pepin v. Ryan, 47 A.2d 846, 847 (Conn. 1946); Birch v. Coleman, 691
S.W.2d 875, 878 (Ark. Ct. App. 1985); Consul Gen. of Yugoslavia v. Thomas (In re
Basich’s Estate), 398 N.E.2d 1182, 1186 (Ill. Ct. App. 1979); Estate of Bodman v.
Bodman, 674 So. 2d 1245, 1246 (Miss. 1996).
258
See In re Estate of Olsson, 344 S.W.2d 171, 173 (Tex. Civ. App. 1961) (“If a
rule of general application exists at all with respect to undue influence cases, it is that
each case must stand on its own bottom as to the legal sufficiency of the facts proven.”
(emphasis omitted)).
Later in this Article, I shall recommend treating certain nonfiduciary
relationships between pastor and communicant as confidential as a matter of law. See
infra text accompanying notes 339-342.
259
§ 8.3 cmt. g (2003).
2008]
625
on special trust and confidence, where, for example, the
testator “was accustomed to be guided by the judgment or
advice of the alleged [influencer] or was justified in placing
confidence in the belief that the alleged [influencer] would act
in the interest of the [testator],” as in the case of the testator
and his financial advisor.260 The second category comprises
relationships in which the testator “was subservient to the
alleged [influencer’s] dominant influence,” such as might exist
between an enfeebled testator and his hired caregiver.261
A good example of a reliant confidential relationship is
to be found in In re Estate of Borsch.262 The testator and the
alleged influencer, one Alan Herbert, had been friends for
twenty-five years and saw each other on a daily basis and often
ate meals together.263 Herbert and Herbert’s wife frequently did
odd jobs for the testator, “such as mowing his lawn and driving
him to town.”264 The testator consulted the Herberts (especially
Alan Herbert) “on all his business and personal matters” and
“on just about anything that came along.”265 Alan Herbert
helped the testator prepare an inventory of his assets that the
testator’s attorney had requested, and he also prepared at the
testator’s request lists of the testator’s mining claims.266 Indeed,
the testator “frequently asked [Herbert] to do things like that
for him, to write letters, make notes, whatever he happened to
have that needed writing.”267 Based on all these facts, the court
concluded that a confidential relationship existed between Alan
Herbert and the testator.268
An example of a dominant-subservient confidential
relationship is to be found in Gentry v. Rigsby.269 The alleged
influencer was Dorothy Rigsby: the testator’s friend and,
evidently, paid caregiver. Evidence showed that she “pressured
[the testator] into going to places and participating in activities
260
Id.
Id.
262
353 N.W.2d 346 (S.D. 1984).
263
Id. at 348. Evidence showed that the testator feared missing some of these
dining engagements lest Herbert and his wife “get mad at me.” Id. at 350. Such
evidence suggests that this confidential relationship was not exclusively of the reliant
type but also had elements of the dominant-subservient type.
264
Id. at 350.
265
Id. at 348.
266
Id. at 349.
267
Id.
268
Id. at 351.
269
No. 01A01-9610-CV-00455, 1997 Tenn. App. LEXIS 419 (Ct. App. June 11,
1997).
261
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in which he had no desire.”270 At one point, she advised the
testator against taking some medication prescribed by his
doctor, and he followed Rigsby’s advice.271 The testator “was an
emotional man who frequently cried,” and “[m]ore than one
witness testified that [the testator] did whatever Rigsby
said.”272 And on at least four occasions during the last eleven
months of the testator’s death, Rigsby drove him to local banks
where the testator added Rigsby’s name as joint owner for a
number of accounts and certificates of deposit.273 With all of
these facts before it, the court held that a confidential
relationship existed between the testator and Rigsby.274
But in order to raise a presumption of undue influence,
a will contestant must do more than prove the existence of a
confidential relationship. She must also prove the existence of
what the Restatement of Property calls “suspicious
circumstances.”275 In the Borsch case, for example, evidence
showed that Alan Herbert advised the testator that his earlier
will (which benefited the testator’s family) “won’t stand up for
thirty seconds” and participated quite actively in the
preparation of the testator’s last will, which left virtually the
entire estate to Herbert and Herbert’s wife.276 The comments
accompanying the Restatement of Property offer a nonexclusive
list of eight factors that may be considered suspicious
circumstances for purposes of raising this presumption of
undue influence where a confidential relationship exists:
(1) the extent to which the [testator] was in a weakened condition,
physically, mentally, or both, and therefore susceptible to undue
influence;
(2) the extent to which the alleged [influencer] participated in the
preparation or procurement of the will . . .;
(3) whether the [testator] received independent advice from an
attorney . . . in preparing the will . . .;
(4) whether the will . . . was prepared in secrecy or in haste;
270
Gentry, 1997 Tenn. App. LEXIS 419 at *9.
Id.
272
Id. at *15-16.
273
Id.
274
Id.
275
See infra note 259 and accompanying text; see also Hurd v. Brown (In re
Baird’s Estate), 168 P. 561, 563 (Cal. 1917); Barton v. Beck’s Estate, 195 A.2d 63, 67
(Me. 1963); In re Estate of Borsch, 353 N.W.2d 346, 348 (S.D. 1984).
276
In re Estate of Borsch, 353 N.W.2d at 347, 350-51.
271
2008]
627
(5) whether the [testator’s] attitude toward others had changed by
reason of his or her relationship with the alleged [influencer];
(6) whether there is a decided discrepancy between a new and
previous wills . . . of the [testator];
(7) whether there was a continuity of purpose running through
former wills . . . indicating a settled intent in the disposition of his or
her property[: a continuity that the challenged will evidently did not
reflect]; and
(8) whether the disposition of the property is such that a reasonable
person would regard it as unnatural, unjust, or unfair, for example,
whether the disposition abruptly and without apparent reason
disinherited a faithful and deserving family member.277
One should note that the Restatement’s list does not
include a mere bequest in favor of a person with whom the
testator had a confidential relationship. Indeed, treating every
such bequest as a suspicious circumstance would threaten the
validity of a wide variety of small or routine bequests to
persons who happened to be the testator’s caregiver or
physician or guardian. Oddly enough, courts have, in the inter
vivos context, treated a gift in any amount or situation as a
suspicious circumstance.278 But in the testamentary context
they seem to agree with the Restatement’s implication that a
mere bequest to the confidential party is not considered
suspicious.279 For a bequest to be suspicious, it must suggest
overreaching: for example, a bequest to the confidential party
amounting to a substantial portion of the estate,280 or a bequest
to the confidential party that disadvantages the natural objects
of the testator’s bounty.281
If a will contestant raises a presumption of undue
influence, the burden then shifts to the proponent, but courts
disagree as to the nature of the burden that is shifted. Some
277
§ 8.3 cmt. h (2003). See Estate of Hamilton v. Morris, 67 S.W.3d 786, 793 (Tenn. App.
2001).
278
See, e.g., Upman v. Clarke, 753 A.2d 4, 5 (Md. 2000); DesMarais v.
Desjardins, 664 A.2d 840, 844 (Me. 1995); Summit Bank v. Quake, 631 N.E.2d 13, 15
(Ind. Ct. App. 1994), abrogated on other grounds by Mitchell v. Mitchell, 695 N.E.2d
920 (Ind. 1998).
279
See, e.g., Haynes v. First Nat’l State Bank of New Jersey, 432 A.2d 890,
897 (N.J. 1981) (citing In re Rittenhouse’s Will, 117 A.2d 401, 402 (N.J. 1955))
(suggesting that “additional circumstances of a suspicious character” are required to
raise the presumption of undue influence even where “the will benefits one who stood
in a confidential relationship to the testat[or]”).
280
See, e.g., Enders v. Parker ex rel. Estate of Kottke (In re Estate of Kottke),
6 P.3d 243, 244, 247-48 (Alaska 2000).
281
See, e.g., Pepin v. Ryan, 47 A.2d 846, 847 (Conn. 1946).
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courts hold that the ultimate burden of persuasion shifts to the
proponent;282 but the better view is that the contestant’s raising
of the presumption shifts to the proponent only the burden of
going forward with contrary evidence (that is, the burden of
production).283 If the proponent has no contrary evidence, the
contestant is, of course, entitled to a directed verdict.284 But if
the proponent does produce contrary evidence, the presumption
of undue influence dwindles to a mere inference of undue
influence: an inference that the trier of fact may accept or
reject after considering all the evidence produced by both sides
(including the evidence the contestant used to raise the
presumption) but leaving the ultimate risk of nonpersuasion
with the contestant.285
The proponent’s response to the contestant’s showing of
undue influence can take different forms. For example, the
proponent might present evidence contradicting the elements
of the contestant’s case, such as the contestant’s claim that a
confidential relationship existed between the influencer and
the testator or the claim that the testator was peculiarly
susceptible to undue influence.286 Or the proponent might
present evidence going directly to the contestant’s underlying
claim by showing that the will did indeed represent the
testator’s own wishes, such as evidence that the testator had
independent reasons for adopting a seemingly “unnatural” plan
of disposition287 or evidence that the testator received truly
independent legal advice from an attorney.288
282
See, e.g., Bernard v. Foley, 139 P.3d 1196, 1199 (Cal. 2006); In re Last Will
and Testament of Melson, 711 A.2d 783, 784 (Del. 1998).
283
See e.g., Carpenter v. Carpenter (In re Estate of Carpenter), 253 So. 2d 697,
704 (Fla. 1971); Franciscan Sisters Health Care Corp. v. Dean, 448 N.E.2d 872, 876 (Ill.
1983); Guill v. Wolpert, 218 N.W.2d 224, 235 (Neb. 1974); Martin v. Phillips, 369
S.E.2d 397, 401 (Va. 1988).
284
In re Estate of Henke, 561 N.E.2d 314, 317 (Ill. App. 1990).
285
Id.; see also Gillett v. Michigan United Traction Co., 171 N.W. 536, 538
(Mich. 1919) (“It is now quite generally held by the courts that a rebuttable . . .
presumption has no weight as evidence. It serves to establish a prima facie case; but, if
challenged by rebutting evidence, the presumption cannot be weighed against the
evidence. Supporting evidence must be introduced [by the party who previously
invoked the presumption], and it then becomes a question of weighing the actual
evidence introduced, without giving any evidential force to the presumption itself.”).
286
PAUL G. HASKELL, PREFACE TO WILLS, TRUSTS AND ADMINISTRATION 47 (2d
ed. 1994).
287
See, e.g., In re Estate of Weickum, 317 N.W.2d 142, 146 (S.D. 1982).
288
Enders v. Parker ex rel. Estate of Kottke (In re Estate of Kottke), 6 P.3d
243, 248 (Alaska 2000); In re Estate of Wright, 199 N.E.2d 54, 59 (Ill. App. 1964).
2008]
III.
629
ERRONEOUS APPLICATION OF THESE STANDARDS IN
CASES OF RELIGIOUS INFLUENCE
American law should be no less concerned today about
the “imposition upon pious . . . minds”289 than it was when
mortmain statutes were still on the books. As recently as 2006,
the North American Securities Association reported an
increase in the fraudulent bilking of the faithful by religious
organizations. “The scammers are getting smarter, and the
investors don’t ask enough questions because of the feeling that
they can be safe in church.”290 And one can hardly forget the
appalling illustration of religious conversion’s power provided
by the events in 1979 when “hundreds of members of the
People’s Temple, after having given up homes and country to
move to the jungles of Guyana, obeyed their leader Jim Jones’s
commands to commit suicide and even to murder their children
and reluctant comrades.”291 In the more placid world of
testamentary transfers, modern courts have often prevented
religion-based imposition upon testators by correctly applying
the conventional rules of undue influence law.292 Of course, by
correctly applying those rules, courts have sometimes found
there to be no undue influence.293 But where courts have
reasoned erroneously in religious undue influence cases, their
error generally consists in holding either (1) that a testator
cannot be unduly influenced by a clergyman’s remarks
addressed to a whole congregation rather than to her alone; or
(2) that a finding of undue influence in religion-based cases
violates the First Amendment’s guarantee of freedom of
religion.
In the discussion that follows, I wish to disclaim any
intention to treat a testator’s religious belief—however
289
Note I, Phila. Baptist Ass’n, supra note 101, at 22-23.
Swindlers Fleecing Faithful of Billions, CHI. TRIB., Aug. 14, 2006, at sec. 2,
p. 3 (emphasis added) (quoting the president of the securities association).
291
C. DANIEL BATSON ET AL., RELIGION AND THE INDIVIDUAL: A SOCIALPSYCHOLOGICAL PERSPECTIVE 32 (1993).
292
See, e.g., Estate of Hee v. Toth (In re Estate of Hee), 252 So. 2d 846, 847
(Fla. Dist. Ct. App. 1971); Bryan v. Norton, 265 S.E.2d 282, 283-84 (Ga. 1980); Suagee
v. Cook (In re Estate of Maheras), 897 P.2d 268, 270 (Okla. 1995); Nelson v. Dodge, 68
A.2d 51, 57-58 (R.I. 1949) (invalidating inter vivos transfers). The cited opinion in
Bryan merely reversed a directed verdict in favor of the proponent and remanded the
case with instructions to submit the issue of undue influence to the jury. 265 S.E.2d at
284. That the contest was successful on remand was reported in a subsequent case
involving attorney fees. See Bryan v. Granade, 357 S.E.2d 92, 93 (Ga. 1987).
293
See, e.g., Doyle v. Clancy (In re McIntyre’s Estate), 159 N.W. 517, 524
(Mich. 1916); Caughey v. Bridenbagh, 57 A. 821, 828-29 (Pa. 1904).
290
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unconventional it may be or however rigidly it may be held—as
a form of delusion suggestive of mental incapacity. While some
courts maintain that religious belief never can be considered
evidence of incapacity,294 others take a less absolute view and
hold that “a man may, through manifestations of religious
belief, evidence mental disorder.”295 By confining the discussion
to undue influence, however, we can avoid inquiries into the
reasonableness of particular religious beliefs inasmuch as
statements can constitute undue influence even if they are
true.296 Thus, if clergyman Smith says to the testator, “The Lord
wants you to leave all your money to my church,” such conduct
should constitute undue influence if it overcomes the testator’s
free agency and causes her to execute a church-favoring will
that she would not otherwise have executed, even if Smith is
factually correct about the Lord’s wishes.297 Undue influence
does not mean fraud.298 Nor does it mean malevolence; Smith’s
conduct can still constitute undue influence even if it is
motivated only by concern for the salvation of the testator’s
soul since beneficence of motive does not rule out undue
influence.299
A.
The Unwarranted Requirement of Personal Contact
In In re Cotcher’s Estate,300 the testator had bequeathed
one-third of her residuary estate to a Catholic orphanage and
two-thirds to the pastor of her local Catholic cathedral for the
benefit of a local parochial school. This will was prepared for
294
See, e.g., Minturn v. Conception Abbey, 61 S.W.2d 352, 359 (Mo. Ct. App.
1933).
295
See, e.g., Ingersoll v. Gourley, 139 P. 207, 209 (Wash. 1914); Henderson v.
Jackson, 111 N.W. 821, 822-23 (Iowa 1907). The Henderson court wrote:
It is true that if there be other circumstances fairly tending to show
unsoundness of mind, . . . all these peculiarities of life and conduct, religious
or otherwise, will properly be a matter of inquiry, and may in some instances
furnish legitimate support to a verdict or judgment against the validity of a
will. But standing alone, we think no case can be found in which it has been
held that such peculiarities of the testator are sufficient to impeach his
testamentary capacity . . . .
Id. at 823.
296
Cf. supra text accompanying note 97, to the effect that the value of religion
does not depend on the objective truth of its tenets.
298
299
300
In re Cotcher’s Estate, 264 N.W. 325, 325-26 (Mich. 1936).
297
2008]
631
her by the attorney for the local Roman Catholic bishop.301 The
will was contested on the ground of undue influence.302 While
the court conceded that the Roman Catholic priest charged
with exerting the influence had visited her in her home and
had, from the pulpit, advised his parishioners that for the
benefit of their own souls and those of their predecessors it
would be wise to make financial donations to the Church or its
institutions,303 the court rejected the contestants’ claim of
undue influence on the ground that the priest’s solicitations
“were made to all parishioners alike” rather than to the
testator as an individual.304
The Cotcher court’s distinction overlooks the extraordinary power that pastoral exhortations can exert upon the
members of a congregation to whom the exhortations are
addressed.305 The Internal Revenue Service certainly recognizes
that power when it challenges the income tax exemption of a
church whose minister, from the pulpit, exhorts his
parishioners to vote for (or against) a particular political
candidate.306 If a testator’s pricks of conscience stemming from
301
Id. at 326. The testator had executed two previous wills. Id. Curiously,
while the court implies that these earlier wills were drafted by someone other than the
bishop’s attorney, the court does not indicate whether the religious bequests made in
the last will were included in the prior wills. Id. I describe the court’s omission as
curious because any substantial increase in religious bequests reflected in that third
will might be a “suspicious circumstance” not inconsistent with a charge of undue
influence. See supra text accompanying note 277 (quoting RESTATEMENT (THIRD) OF
PROP.: WILLS & OTHER DONATIVE TRANSFERS § 8.3 cmt. h (2003)).
302
In re Cotcher’s Estate, 264 N.W. at 325.
303
Id. at 326.
304
Id. at 327; accord Roberts-Douglas v. Meares, 624 A.2d 405, 421 (D.C.
1992), modified on other grounds and reaff’d, 624 A.2d 431 (D.C. 1993) (“If the only
connection between donor and donee is that the former sits in a church pew, listens to
the latter’s sermon, and conscientiously makes a contribution, the occasion for special
scrutiny does not arise.”). The court did acknowledge, however, that exhortations from
the pulpit might weaken an individual’s resolve so as to make him more susceptible to
one-on-one influence than he otherwise would have been. Id. at 424.
305
In Roberts-Douglas, the court stated that “[s]ermons by [a bishop] to his
entire flock . . . are not the stuff from which a confidential relationship is derived.” 624
A.2d at 422.
306
The income received by a not-for-profit religious organization can be
exempt from federal income tax pursuant to section 501(c)(3) of the Internal Revenue
Code, but the organization must forfeit its 501(c)(3) exemption if it “participate[s] in, or
intervene[s] in . . . any political campaign on behalf of (or in opposition to) any
candidate for public office.” I.R.C. § 501(c)(3) (1986). Thus, in Christian Echoes
National Ministry, Inc. v. United States, 470 F.2d 849 (10th Cir. 1972), it was held that
the Internal Revenue Service acted properly in revoking the taxpayer’s § 501(c)(3) taxexemption, where the taxpayer had “used its publications and broadcasts to attack
candidates and incumbents who were considered too liberal. It attacked President
Kennedy in 1961 and urged its followers to elect conservatives like Senator Strom
Thurmond . . . .” Id. at 856.
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the pleas of a person now dead can support a finding of undue
influence,307 it seems no stretch to conclude that pricks of
conscience stemming from a clergyman’s exhortations to his
congregation can support such a finding. I am not suggesting
that statements from a pulpit necessarily constitute undue
influence, but merely that they are capable of doing so and
should not be excluded as the Cotcher case excluded them.308
Clergymen are certainly aware of the powerful influence
they can wield from the pulpit. When it seemed likely that
Congress would amend the federal hate crimes statute to add
sexual orientation to the list of hatreds warranting enhanced
penalties if they motivated violent crimes, a number of
clergymen expressed the fear that their anti-gay sermons
might subject them to hate crime prosecutions if their sermons
spurred congregants to violent action. One pastor stated, “I
don’t believe the Bible condones gay lifestyles. Yet the way
these laws would be invoked would be that whoever is a
commander or director of this kind of action can be brought up
on the same charges as the actual perpetrator of a crime.”309
The court in Cotcher offered another justification for its
per se rule exempting the priest’s pulpit exhortations: “This
method of raising money for churches . . . prevails throughout
Two days before the 2004 presidential election, the Reverend George
Regas, a guest preacher at All Saints Episcopal Church in Pasadena, California,
preached a fiery sermon in which he imagined Jesus talking to George W. Bush and
John Kerry and sharply condemning the Bush administration’s prosecution of the war
in Iraq. Father Regas then urged the congregants to “bring a sensitive conscience to the
ballot box” and to “vote your deepest values.” http://www.ombwatch.org/article/
articleview/3167. A week after the election, the Internal Revenue Service notified the
church that it considered the sermon to be a possible violation of the § 501(c)(3)
restriction on political activity in opposition to a candidate, and that it was considering
the revocation of the church’s tax exemption. In September 2007, the IRS finally
informed the church that it was not going to pursue revoking the church’s tax
exemption, but the IRS stated that the sermon did in fact constitute a violation of the
restrictions in § 501(c)(3). Rebecca Trounson, Pasadena Church Wants Apology from
IRS, L.A. TIMES, Sept. 24, 2007. Whether or not the IRS originally acted out of partisan
malice and whether or not the Service interpreted the statute correctly, its intervention
in the case was a clear acknowledgment of the strong influence that a pastor’s “mere”
sermon might have on the future actions of his listeners.
307
308
I believe that the court in Cotcher decided correctly when it upheld the
validity of the will, but the court should have reached that decision by noting the
testator’s undoubted free agency, not by noting the absence of one-on-one contact.
309
Howard Witt, Anti-Hate Law Shifts Debate on Gays, CHI. TRIB., Aug. 13,
2007, at 1, 14 (emphasis added) (quoting Bishop Harry Jackson, pastor of Hope
Christian Church of Beltsville, Maryland, who joined three dozen other pastors to buy
a full-page advertisement in USA Today denouncing the proposed amendment to the
hate crimes statute).
2008]
633
all Christendom.”310 Such a justification cannot be allowed to
stand. That a course of conduct is common has no bearing on
whether that conduct, in a particular case, overpowered the
particular testator and destroyed her free agency. Pleading and
solicitation are common enough behaviors, even among the
laity. Sometimes they amount to undue influence,311 and
sometimes they do not.312
[T]he mere fact that arguments and suggestions are adopted by a
testator, and his will, on that account, is different from what it
otherwise would have been, is not sufficient [for a finding of undue
influence]. It necessarily depends upon the further question as to
whether such advice or suggestions are intelligently and freely
adopted, because they have appealed to the judgment of the testator,
so as to become in accordance with his own desires, or whether
because of the persistency of the importunity, or for any other
reason, the testator is unable to resist, and finally yields, not
because of the voluntary action of his own judgment, but because, on
account of the strength of the influence, or the weakness of his own
judgment and will, he cannot resist longer. It is undoubtedly true, as
has been argued, that in some cases it may be very difficult to
determine whether a suggestion has been thus freely adopted, or has
been merely followed by the testator because it has overcome his free
agency; but it is none the less the true and decisive question, and
must be determined as well as possible in each case from all the facts
and circumstances of the case. The citation of authorities in support
of these statements of the rule is unnecessary, because such
authorities are so exceedingly numerous.313
B.
Needless Concerns About the First Amendment314
Even five decades after Cotcher was decided, judges in
will contests continued to treat statements from the pulpit with
special indulgence, but they did so in the belief that the First
Amendment required such indulgence. The Court of Appeals
for the District of Columbia, in Roberts-Douglas v. Meares,315
was confronted with some rather extreme declarations from the
310
In re Cotcher’s Estate, 264 N.W. 325, 327 (Mich. 1936). It was actually the
trial court that first used these words, but the Michigan Supreme Court explicitly
endorsed and repeated them.
311
See, e.g., Greuner v. Wells Fargo Bank & Union Trust Co. (In re Greuner’s
Estate), 87 P.2d 872 (Cal. App. 1939).
312
See, e.g., In re Campbell’s Will, 60 A. 880 (Me. 1905).
313
Id. at 881.
314
The freedom of religion clause of the First Amendment applies to the
several states as well as to the federal government. Cantwell v. Connecticut, 310 U.S.
296, 303 (1940).
315
624 A.2d 405 (D.C. 1992), modified on other grounds and reaff’d, 624 A.2d
431 (D.C. 1993).
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pulpit, including statements by the congregation’s bishop that
“God would punish those who failed to make adequate
contributions.”316 Despite the likelihood that such statements
played a determinative role in inducing parishioners to make
gifts to the bishop’s Evangel Temple, the court cautioned:
“When such remarks are directed from the pulpit to the
congregation as a whole, . . . any attempt to use the sermon as
a basis for setting aside a gift [on undue influence grounds]
implicates significant First Amendment concerns.”317
“Implicates” is a weasel word; everything implicates
First Amendment concerns.318 What the Roberts-Douglas court
presumably meant, but was too fainthearted to say, is that
even when a clergyman’s statements from the pulpit unduly
pressure a parishioner to execute a will in the clergyman’s (or
in his church’s) favor, a probate court would violate the
freedom of religion clause if it barred such a bequest from
taking effect. Such an understanding of freedom of religion is
incorrect. In In re The Bible Speaks,319 for example, in which a
donor sought to rescind on undue influence grounds several
inter vivos gifts made to a religious organization called The
Bible Speaks (“TBS”), the Federal Court of Appeals for the
First Circuit explicitly rejected the notion that the free exercise
clause shields from attack on undue influence grounds the
solicitation of funds by a religious organization.320 The court
reasoned, “Those who run TBS may freely exercise their
religion, but they cannot use the cloak of religion to exert
undue influence of a non-religious nature with impunity.”321
Of course, to characterize TBS’s conduct as “nonreligious” somewhat begs the question. How did the court
conclude that TBS’s fundraising activities were non-religious
(and therefore outside the protection of the free exercise
clause)? Some of those activities consisted of lying—for
316
Roberts-Douglas, 624 A.2d at 410.
Id. at 422.
318
Cf. Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A.,
519 U.S. 316 (1997). In that case, the Supreme Court was asked to interpret the
breadth of a federal preemption statute, the Employee Retirement Income Security Act
of 1974 (“ERISA”) § 514(a), 29 U.S.C. § 1144(a) (1994). Id. at 39. Following the pattern
of previous cases, the majority focused its attention on the statutory phrase “relate to.”
Id. Justice Scalia, in a concurring opinion, argued that “relate to” offers no guidance or
limitation at all inasmuch as “everything is related to everything else.” Id. at 335.
319
Dovydenas v. The Bible Speaks, 869 F.2d 628, 642 (1st Cir.1989).
320
Id. at 645-46. The issue of undue influence was decided on the basis of
Massachusetts law. See id. at 641.
321
Id. at 645.
317
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635
example, telling the donor that her previous gift to TBS had
miraculously cured a TBS member’s migraine headaches when
in fact the members making that statement knew quite well
that the headaches had continued unabated322—and the court
had little difficulty finding that freedom of religion did not
include the freedom to lie. But some of TBS’s statements were
arguably religious; at least, they were phrased using
conventional religious idiom and were not susceptible of logical
or evidentiary disproof. For example, according to testimony,
the head of TBS (Pastor Stevens) and his subordinates isolated
the donor from her husband (who had opposed her donations)
and told her that she should keep her gifts to TBS secret from
her husband and that her husband’s family and her family
“were evil and were controlled by Satan and demons.”323
According to testimony, Stevens told the donor that her largest
gift to TBS “would be particularly influential in shaping the
world for the return of God.”324 That these statements—made
with undeniably religious terms—were held to evidence TBS’s
undue influence suggests that the case should be read as
holding that solicitations for contributions are inherently nonreligious and therefore unprotected by the Free Exercise
Clause, even if the solicitors’ religion deems the fundraising
activities to be theologically required.
The law of undue influence focuses on a testator’s
response to conduct. While the Free Exercise Clause embraces
both the freedom to believe and the freedom to act, it is only
the latter freedom that is implicated in undue influence cases,
and that latter freedom is not absolute.325 When a religious
person’s freedom to act in accordance with that religion is
burdened by a federal or state law, that law passes
constitutional muster—even in the absence of a compelling
governmental interest—if the burden is an “incidental effect” of
a “law that is neutral and of general applicability.”326 The law of
undue influence is indeed religiously neutral and of general
applicability. It makes no distinction between religious
322
Id. at 633-34.
Id. at 632.
324
Id. at 635.
325
Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940) (“[The First]
Amendment embraces two concepts,—freedom to believe and freedom to act. The first
is absolute but, in the nature of things, the second cannot be.”).
326
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531 (1993).
323
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influencers and secular influencers.327 It was not designed to
suppress the beliefs of any particular religion.328 It does not
involve an inquiry into the truth or falsity of the beliefs of any
religion.329 Consequently, the law of undue influence applies to
the grasping clergyman no less than to the grasping nephew.
No “balancing test”—comparing societal benefit with religious
burden—is to be undertaken.
The Bible Speaks case was decided before (though only
shortly before) the Supreme Court rejected “balancing tests” for
neutral laws of general applicability.330 Accordingly, the Bible
Speaks court may have thought that its rejection of the
proponents’ freedom of religion argument required a finding
that fundraising was inherently nonreligious. Certainly
conduct motivated by pecuniary considerations was, even
according to prior Supreme Court precedents, “particularly
suspect.”331
C.
A Recommended Per Se Rule for Spiritual Advisors
Evidence suggests that the cases in which religious
undue influence is found to have occurred generally involve
nontraditional religions,332 while the cases in which such
327
See McDaniel v. Paty, 435 U.S. 618, 621, 629 (1978) (declaring
unconstitutional a state law barring any “Minister of the Gospel, or priest of any
denomination whatever” from serving as delegates to the state’s constitutional
convention).
328
In Church of the Lukumi Babalu Aye, the Supreme Court declared
unconstitutional a city ordinance that prohibited ritual animal sacrifice. 508 U.S. at
547. The ordinance’s defect was its motivation: the suppression of a particular religious
community. Id. at 534-35.
329
The Freedom of Religion Clause bars courts from inquiring into the truth
or falsity of a religious belief. United States v. Ballard, 322 U.S. 78, 86-87 (1944). But
truth or falsity is not an issue in undue influence cases; a statement can constitute
undue influence even if it is factually true. See supra text accompanying notes 246-248.
330
The first case generally thought to have rejected the balancing test
approach was Employment Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 88284 (1990). That Roberts-Douglas was decided after Smith and Ballard rejected any
balancing test makes quite surprising the Roberts-Douglas court’s warnings about the
First Amendment. See supra text accompanying note 317.
331
Richard Delgado, Religious Totalism: Gentle and Ungentle Persuasion
Under the First Amendment, 51 S. CAL. L. REV. 1, 42 (1977).
332
See, e.g., Dovydenas v. The Bible Speaks, 869 F.2d 628, 624, 631 (1st Cir.
1989), (a religious group calling itself “The Bible Speaks”); Roberts-Douglas v. Meares,
624 A.2d 405, 408 (D.C. 1992), modified and reaff’d, 624 A.2d 431 (D.C. 1993) (the
“Evangel Temple”); Carpenter v. Horace Mann Life Ins. Co., 730 S.W.2d 502, 503 (Ark.
Ct. App. 1987) (proponent professed to be a spiritual healer); Hartley v. Toth (In re
Estate of Hee), 252 So. 2d 846, 847 (Fla. Dist. Ct. App. 1971) (Jehovah’s Witnesses);
Nelson v. Dodge, 68 A.2d 51, 53 (R.I. 1949) (“The Church of Jesus, Inc.”). Contra
Corrigan v. Pironi, 23 A. 355, 355-56 (N.J. 1891) (setting aside on undue influence
2008]
637
influence is found not to have occurred generally involve
mainstream religions.333 One scholar, at least, would probably
find this evidence unsurprising—“I suspect that judgments
about which forms of religious influence are ‘undue’ will often
(though not always) lead to improper consideration of whether
the religion seems unreasonable, excessively authoritarian, or
too threatening of extratemporal consequences [i.e.,
punishment after death]”334—and he therefore cautions against
any undue influence inquiries in will contests involving
religious bequests.335 I share his reluctance to distinguish
grounds an inter vivos transfer to a Roman Catholic priest); Suagee v. Cook (In re
Estate of Maheras), 897 P.2d 268, 270, 274-75 (Okla. 1995) (a successful contest where
proponent was a Baptist minister); see also Bryan v. Norton, 265 S.E.2d 282, 283 (Ga.
1980) (a successful contest in which the proponent was identified only as a “pastor of
the church which the testatrix attended”).
333
See, e.g., Else v. Fremont Methodist Church, 73 N.W.2d 50, 51, 59-60 (Iowa
1955); Waggener v. Gen. Ass’n of Baptists in Ky., 306 S.W.2d 271, 272, 274 (Ky. 1957);
Doyle v. Clancy (In re McIntyre’s Estate), 159 N.W. 517, 517, 519, 524 (Mich. 1916)
(Roman Catholicism); Martin v. Bowdern, 59 S.W. 227. 228, 232 (Mo. 1900) (Roman
Catholicism); First Christian Church in Salem v. McReynolds, 241 P.2d 135, 136-37,
142 (Or. 1952); In re Rowlands’ [sic] Estate, 18 N.W.2d 290, 291, 294 (S.D. 1945)
(Roman Catholicism); Naihaus v. Feigon, 244 S.W.2d 325, 326, 329 (Tex. Civ. App.
1951) (Judaism). But see Stanchfield v. Stanchfield (In re Estate of Stenerson), 348
N.W.2d 141, 142, 144 (N.D. 1984) (informal Bible study group held not to have exerted
undue influence).
In support of its conclusion that a Roman Catholic priest’s exhortations did
not constitute undue influence, one court noted that the priest’s exhortations did not go
“beyond the teachings of the church.” In re Cotcher’s Estate, 264 N.W. 325, 327 (Mich.
1936).
334
Eugene Volokh, Intermediate Questions of Religious Exemptions—A
Research Agenda with Test Suites, 21 CARDOZO L. REV. 595, 627 n.100 (1999).
335
Id. Professor Volokh may undercut the persuasive force of his warning by
citing as support Carpenter v. Horace Mann Life Ins. Co., 730 S.W.2d 502 (Ark. App.
1987), a case that, to me, cries out for the relief of the undue influence finding that the
court quite properly made.. The testator in Carpenter was raised a Catholic and
“considered by her family to be very religious.” Id. at 503. She worked as a registered
nurse and put her husband (who converted to Catholicism to marry her) through
college. Id. They had one son. Id. She entered into a correspondence with Carpenter.
His doctrine is somewhat unclear from the record but appears to have
involved delving into the metaphysical in an effort to get closer to God and
included reincarnation, soul mates, and meditation. He apparently did not
advocate the study of the Bible. He did advocate tithing, however. . . .
Carpenter’s wife, Sherry, wrote letters to [Testator] in which she claimed that
Carpenter was able to transmigrate, did not have to eat or perform other
bodily functions, could heal himself and others, and had other supernatural
powers. . . . From testimony of his other followers, it appears that Carpenter
and Sherry also convinced his “disciples” that he could control their lives from
afar and, if they didn’t want bad things to happen to them, they must give
more and more of their money to him for his “work.”
Id. The testator and her husband had frequent disagreements about money; he resisted
her sending money to Carpenter. Carpenter sent the testator a letter enclosing an
astrological chart for her; the entry for July 1975 (sent in Dec. 1973) said that it was a
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“reasonable” religious beliefs from “unreasonable” ones,336 but I
do not share his reluctance to subject religious bequests to
undue influence analysis. And since I have no reason to
suppose that members of mainstream religions are more
strong-willed or independent-minded than members of
nontraditional religions, I cannot but suspect that mainstream
religions’ greater success in undue influence cases can be
traced to an erroneous—and overly lenient—application of
undue influence law.337 We must correct this error. Human
nature is unlikely to have changed markedly since the days of
the repealed mortmain statutes, when legislators feared that
some religious leaders were taking advantage of the faithful,338
and I remain unwilling to obey the testamentary instructions
of a person whose free will was overcome by the conduct of
another.
The best solution to this problem of clerical overreaching is to treat all relationships between a testator and her
spiritual advisor as per se confidential for purposes of the law
of undue influence. Not only would such a solution recognize
the enormous power of religious influence339 and thereby
prevent undue leniency in the face of undue influence by
favorable period “to begin undertaking new friendships.” Id. at 504. Carpenter urged
her to get a divorce and join his family. Testator did divorce her husband: in July 1975!
Id. She moved to Carpenter’s town. Id. By this time she was giving Carpenter
approximately seventy-five percent of all her earnings. Id. Her will left him everything.
Id.
Two psychologists who reviewed the letters between Testator and her
parents and between Testator and the Carpenters and reviewed the depositions of
several witnesses “concluded that [Testator] had a very dependent personality, was
searching for a father figure to care for her and that Carpenter fit her needs
perfectly. . . . Both testified that it was not their belief that Carpenter had actually
knowingly attempted to extort money from [Testator]. . . . It was their opinion that he
was not intentionally a ‘con artist’ but that his teachings had this effect on gullible
women. . . . [He] encouraged them to give him money for his ‘work’ and free him from
the necessity of holding a job so he could devote his entire time and energy to his
teaching and writing. Both psychologists concluded that because of Carpenter’s mental
hold on [Testator], the veiled threats that if she left him something terrible might
happen to her, . . . she was not free to fully exercise her own independence . . . . [and
was] under the influence of Carpenter.” Id. at 504-05. “The record supports a finding
that there was a systematic alienation of [Testator] from her husband, son, parent, and
siblings.” Id. at 508.
If that is not undue influence, I do not know what is.
336
The rules of undue influence, properly applied, do not require such a
distinction to be made. See text at supra note 296.
337
That a court seemed willing to exempt from undue-influence examination a
practice that “prevails throughout all Christendom” illustrates the unwarranted
leniency to which I refer. See supra note 310 and accompanying text.
338
See supra note 18.
339
See, e.g., BATSON ET AL., supra note 291, at 198, 296.
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639
mainstream clergyman,340 it would also guard against the
temptation to assess the reasonableness of any religious or
spiritual beliefs. The contestant would need to produce
evidence only as to the category into which the alleged
influencer fell (together with evidence of a “suspicious
circumstance”341); the inquiry would then turn, with the
proponent having the burden of production, to the
fundamental—and purely secular—issue of whether the will
represented the testator’s own wishes.342
One can find the occasional case that already does treat
the relationship between a testator and her spiritual advisor as
per se confidential,343 but most courts currently view the
question as one of fact, to be decided on a case by case basis.344
Accordingly, the creation of the per se rule that I recommend
would represent a change in the law for most jurisdictions. At
least one court has opined that such a change would require
legislative action,345 but legislatures have acted along these
lines before. Idaho, for example, enacted a statute providing
that a bequest to a nursing home where the testator was in
residence shall be presumed to have been the result of undue
340
A transfer might be set aside on undue influence grounds where a
confidential relationship existed that would not be set aside in the absence of a
confidential relationship. Roberts-Douglas v. Meares, 624 A.2d 405, 421 (D.C. 1992),
modified on other grounds and reaff’d, 624 A.2d 431 (D.C. 1993).
341
342
343
See, e.g., Nelson v. Dodge, 68 A.2d 51, 57 (R.I. 1949) (inter vivos transfer);
In re Rowland’s Estate, 18 N.W.2d 290, 293 (S.D. 1945).
344
See, e.g., Else v. Fremont Methodist Church, 73 N.W.2d 50, 57 (Iowa 1955);
First Christian Church in Salem v. McReynolds, 241 P.2d 135, 142 (Or. 1952); Barlowe
v. Brevard, 213 S.W.3d 298, 304 (Tenn. App. 2006); see also In re The Bible Speaks, 869
F.2d 628, 641-42 (1st Cir.), cert. denied, 493 U.S. 816 (1989) (“Massachusetts has never
directly addressed the question of whether a pastor-communicant relationship is per se
a confidential one when undue influence is alleged. We need not decide whether
Massachusetts would hold that the pastor-communicant is by itself a confidential
relationship. Here, we have found such a relationship on the basis of other
factors . . . .”).
345
See Miller v. Kraft (In re Estate of Wagner), 265 N.W.2d 459, 464 (N.D.
1984) (“[I]f a presumption is to be created providing that undue influence is presumed
whenever the attorney who drew the will is also directly or indirectly a substantial
beneficiary under the will[,] it should be accomplished by a legislative act rather than
by a judicial decree.”). In point of fact, since the attorney-client relationship is a
confidential relationship and since being a substantial beneficiary is a “suspicious
circumstance,” see supra text accompanying notes 278-281, virtually every American
jurisdiction would—as a matter of judge-made law—find that those facts give rise to a
presumption of undue influence, so I am puzzled why the North Dakota law of undue
influence was thought to have a lacuna that only legislative action could fill.
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influence, and only clear and convincing evidence to the
contrary can rebut that presumption.346
So far as I know, the per se rules in Rhode Island and
South Dakota—treating all relationships between testators and
their spiritual advisors as confidential relationships347—have
not been challenged on freedom of religion grounds. But should
they be challenged? That is, would my proposed per se rule
survive a challenge based on freedom of religion? Clearly, such
a rule would be neither neutral nor of general applicability;348
rather, it would specially target religion-based relationships
and treat them differently from most secular relationships. To
pass muster under the Freedom of Religion Clause, such a rule,
said the United States Supreme Court in Church of Lukumi
Babalu Aye, Inc. v. Hialeah, “must be justified by a compelling
governmental interest [as opposed to being merely reasonable]
and must be narrowly tailored to advance that interest.”349 In
other words, the rule should be subject to strict scrutiny.350
The state governmental interest at issue here is “the
orderly settlement of estates and the dependability of titles to
property passing under [wills or] intestacy laws.”351 Clearly, the
settlement of estates would not be orderly if serious doubt
existed among interested family members as to the
genuineness or trustworthiness of a purported will, and titles
to property would remain unreliable as long as such doubts
remained unresolved.352 But is such an interest “compelling?”
The United States Supreme Court has characterized it as
“substantial,”353 but such a characterization does not preclude
its being “compelling” as well. The Court made the
characterization in an unsuccessful challenge, on “equal
protection” grounds, to a statute affecting the inheritance
rights of nonmarital children: a group whose interests require
346
IDAHO CODE § 15-2-616 (2007).
348
See supra note 326.
349
508 U.S. 520, 531-32 (1993).
350
Perhaps the initial case applying strict scrutiny analysis to a statute
arguably impinging on the freedom of religion was Sherbert v. Verner, 374 U.S. 398,
406-07 (1963), where state law denied the petitioner unemployment compensation
because her unemployment resulted from her refusal to violate her religious principles
by working on Saturdays. The law was declared unconstitutional.
351
Lalli v. Lalli (In re Estate of Lalli), 371 N.E.2d 481, 482-83 (N.Y. 1977),
aff’d sub nom. Lalli v. Lalli, 439 U.S. 259, 264 (1978).
352
353
Lalli, 439 U.S. at 271 (plurality opinion).
347
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641
only “intermediate scrutiny”354 of potentially discriminatory
state actions, and under the immediate scrutiny standard a
“substantial” state interest is good enough.355 It was
unnecessary for the Court to determine whether the interest
rose to the level of being compelling.356
Certainly one can adduce examples of state interests
that have been found sufficiently compelling to justify
incidental burdens on the free exercise of religion. In Braunfeld
v. Brown,357 a state’s “interest in providing one uniform day of
rest for all workers”358 was held to justify Sunday closing laws,
even though such laws made more expensive the religious
beliefs of business owners whose religion required them to close
on Saturdays as well.359 In Hernandez v. Commissioner of
Internal Revenue, the federal government’s “interest in
maintaining a sound tax system free of myriad exceptions
flowing from a wide variety of religious beliefs” was held to
justify the denial of an income tax charitable deduction for
payments for “training” and “auditing” sessions made
mandatory by a particular religion.360 Difficult as it may be to
compare apples and oranges, it seems intuitively correct to say
that a state’s interest in the orderly settlement of estates and
the dependability of titles to property ought to be no less
compelling than its interest in providing a uniform day of rest
or maintaining a sound tax system.
A useful approach to the problem of identifying the
kinds of conduct protected by the Free Exercise Clause is
suggested by language in the majority opinion in Sherbert v.
Verner.361 The case involved a South Carolina statute that
354
See In re Estate of Lalli, 371 N.E.2d at 482-83. The Supreme Court of
Appeals of West Virginia held that—under that state’s constitution—nonmarital
children were a “suspect classification” requiring strict scrutiny of any state statute
treating them differently from marital children. Adkins v. McEldowney, 280 S.E.2d
231, 233 (W. Va. 1981).
355
JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW 688 (7th ed.
2004).
356
The Supreme Judicial Court of Massachusetts seems to have characterized
such a state interest as “compelling,” though evidently the characterization was made
for state constitutional purposes, not federal. Lowell v. Kowalski, 405 N.E.2d 135, 140
(Mass. 1980) (citing Commonwealth v. MacKenzie, 334 N.E.2d 613, 616 (Mass. 1975)).
357
366 U.S. 599 (1961).
358
Sherbert v. Verner, 374 U.S. 398, 408 (1963).
359
Braunfeld, 366 U.S. at 609.
360
Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 699-700 (1989)
(internal quotation marks omitted) (quoting United States v. Lee, 455 U.S. 252, 260
(1982)).
361
Sherbert, 374 U.S. 398.
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denied an unemployed person certain insurance benefits if her
unemployed status was prolonged, without good cause, by her
failure to accept available work.362 The petitioner in the case
refused on religious grounds to work on Saturdays, and her
refusal prolonged her unemployed status.363 The Court held
that the state’s denial of unemployment insurance benefits in
her case violated her rights under the Freedom of Religion
Clause. In reaching that result, the Court noted that refusing
to work on Saturdays was a “basic tenet” of her religion,364 and
that the state law violated her freedom of religion because it
“force[d] her to choose between following the precepts of her
religion and forfeiting benefits, on the one hand, and
abandoning one of the precepts of her religion in order to accept
work, on the other hand.”365 Similarly, in a successful
constitutional challenge to a city requirement forbidding police
officers to wear beards brought by Muslim officers whose
religious beliefs compelled them to wear beards,366 the court of
appeals took pains to find that the wearing of beards was a
fundamental requirement of Sunni Islam;367 accordingly, the
invalidated requirement would have forced these men to choose
between (1) keeping their jobs (by committing a “sin”368) and
(2) following their religious beliefs and losing their jobs.
My proposed presumption does not put anyone in such a
dilemma. Clergymen do not have to choose between speaking
about bequests (and thereby forfeiting them) and remaining
silent. The faithful do not have to choose between yielding to
persuasion (and having their gifts annulled) and making no
religious gifts at all. The presumption is intended to reach only
those instances where a clergyman’s conduct has destroyed a
testator’s free agency, and courts should be suspicious of any
claim that the destruction of a congregant’s free agency is a
“basic tenet” of any religion.369
362
Sherbert, 374 U.S. at 401.
Id. at 399-400.
364
Id. at 400 n.1.
365
Id. at 404 (emphasis added).
366
Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170
F.3d 359 (3d Cir. 1999).
367
Id. at 360-61.
368
Id. at 360.
369
Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 715
(1981) (“One can, of course, imagine an asserted claim so bizarre, so clearly
nonreligious in motivation, as not to be entitled to protection under the Free Exercise
Clause” (emphasis added)).
363
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643
My proposed presumption likewise satisfies the
requirement of being “narrowly tailored.”370 It recognizes the
extraordinary power of religion and it recognizes the state’s
interest in distributing property only on the basis of reliable
indicia of intent, but it does not prohibit bequests to religious
actors or institutions. It does not even create a presumption of
invalidity (which the Idaho nursing home statute does).371 It
mandates that the relationship between a testator and her
spiritual advisor be considered per se confidential, but even the
confidentiality designation does not give rise to a presumption
of invalidity unless the contestant can produce evidence of a
“suspicious circumstance,” such as active participation in the
procurement of the will. Even then, the result is only a
presumption of invalidity, and it can be rebutted.
The First Amendment does not require that the income
of religious organizations be exempt from federal income tax.
That it is in fact exempt is merely a matter of legislative
grace.372 Accordingly, the government is permitted to make
substantial inquiries into a religious organization’s activities in
order to determine whether the organization is entitled to its
claimed exemption, including inquiries as to the content and
intended effect of the organization’s publications or
statements.373 The rights to bequeath and inherit property are
likewise matters of legislative grace.374 A state could
constitutionally abolish the right of testation, requiring all of a
decedent’s property to pass to natural persons under the
intestacy statute.375 Accordingly, a testator’s power to bequeath
property to a religious charity exists at the sufferance of the
state and may accordingly be subject to conditions, so long as
the conditions do not operate to inhibit or deter the exercise of
constitutionally protected freedoms376 and as long as the
conditions operate similarly in the case of all religions rather
than favoring one religion over another.377
370
See supra note 228.
372
See Better Bus. Bureau of Washington, D.C., Inc. v. United States, 326
U.S. 279 (1945); New Colonial Ice Co. v. Helvering, 292 U.S. 435 (1934); Christian
Echoes Nat’l Ministry, Inc. v. United States, 470 F.2d 849 (10th Cir. 1972).
373
Christian Echoes Nat’l Ministry, 470 F.2d at 855-56.
374
See supra note 183.
375
376
Sherbert v. Verner, 374 U.S. 398, 405 (1963).
377
Golden Rule Church Ass’n v. Commissioner, 41 T.C. 719, 729 (1964).
371
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The proposed per se rule does require courts to
distinguish those persons who are dispensing religious or
spiritual advice to a testator from those who are acting as
advisors in some other capacity, but distinguishing the
religious from the nonreligious is a necessary and familiar
judicial duty. “Though litigation of the question whether a
given group or set of beliefs is or is not religious is a delicate
business, our legal system sometimes requires it.”378
IV.
CONCLUSION
Courts and legislatures have, for centuries, been wary of
bequests to religious organizations or leaders. Concern that
such bequests reflected merely the deathbed fears of the
faithful manipulated by the clergy led legislatures to enact
mortmain statutes. But such statutes were not only
unworkable; they sometimes invalidated perfectly genuine
religious bequests. The law of undue influence remains a
worthy tool for ensuring the legitimacy of such bequests, but it
can best serve as protection if relationships between testators
and their spiritual advisors are deemed to be per se
confidential. Such a per se rule, which recognizes the
extraordinary power of religious influence (for good and for ill),
would allocate more sensibly the risks of nonpersuasion. Under
it, the proponent of the will, after the contestant presented
evidence of a “suspicious circumstance” such as a substantial
bequest in favor of the influencer, would have the burden of
producing evidence that the bequest represented the testator’s
actual wishes.
378
Founding Church of Scientology of Washington, D.C. v. United States, 409
F.2d 1146, 1160 (D.C. Cir. 1969) (footnote omitted).
NOTES
The Supreme Court’s Post-9/11
War-on-Terror Jurisprudence
SPECIAL CONSIDERATIONS, THRESHOLD
DETERMINATIONS, AND ANTICIPATORY REVIEW
INTRODUCTION
Should a federal court ever overlook traditional
jurisdictional requirements in determining whether to review
on the merits a federal habeas challenge waged by an alleged
enemy combatant detained in the midst of the so-called war
on terror? What if extraordinary, exceptional, or unique
circumstances surround such a detainee challenge?1 What if
the challenge epitomizes a profound debate between personal
liberty and national security or otherwise invokes a significant
public interest?2 What if an executive actor has overseen the
military detention of an alleged combatant (perhaps an
American citizen) to an unprecedented extent and has even
caused the removal of this person from the civilian justice
system?3 What if this detainee denied all wrongdoing but has
been held without access to counsel or meaningful judicial
access for two years?4 Three years? Four years? What if the
detainee has been held not in the United States itself, but in a
territory controlled by the United States for all practical
1
See infra Part I.A-B. Within this Note, the term “detainee challenge” refers
generally to a petition for a writ of habeas corpus raised by or on behalf of a person or
group of persons detained militarily by the federal government.
2
See infra Part I.A-B; see also infra Part I.D.
3
See infra Part I.A.
4
See infra Part I.B; see also infra Part I.D.
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purposes?5 Are any of these scenarios special enough to justify
immediate review of the corresponding claims?
A closely related issue is whether a court should review
on the merits a detainee challenge, or elements therein, that is
based on reasonably foreseeable but only partially developed
circumstances.6 One possible future scenario is perpetual (that
is, effectively lifelong) detention given that the war on terror
has no foreseeable endpoint and could potentially span
multiple generations.7 Another, more immediate, prospect
relates to the trial of detainees by Executive-established
military commissions that may implement illegal procedures or
that are minimally subject to judicial review by Article III (that
is, civilian) courts.8 The question thus becomes whether courts
should expedite review to accommodate these hypothetical
(though anticipatable) controversies due to the major personal
liberties and constitutional issues at stake.9 Or, should courts
instead take more of a wait-and-see approach to delay
addressing arguably novel legal issues or unprecedented
factual scenarios until they are concretely presented?10
This Note will examine these two groups of questions as
they pertain to the four war-on-terror detainee challenges
heard by the U.S. Supreme Court in the five years following
September 11, 2001. These cases are Rumsfeld v. Padilla,11
Rasul v. Bush,12 Hamdi v. Rumsfeld,13 and Hamdan v.
Rumsfeld.14 Padilla (in particular) and Hamdi (to a more
5
See infra Part I.B.
See infra Part I.C-D.
7
See infra Part I.C; infra note 195 and accompanying text.
8
See infra Part I.D.
9
See infra Part I.D; see also infra Part I.A, C.
10
See infra Part I.C-D.
11
542 U.S. 426 (2004).
12
542 U.S. 466 (2004).
13
542 U.S. 507 (2004). Note that Padilla, Rasul, and Hamdi were all decided
on June 28, 2004. In light of this, it may be appropriate to refer to them as sister cases,
even if they often do not see eye to eye. This Note will chronologically order and refer to
them per their placements in the Supreme Court Reporter. This is mostly a matter of
convenience, for there does not appear to be a necessary, definitive ordering of these
cases for purposes of the Supreme Court’s post-9/11, war-on-terror jurisprudence. But
the fact that these cases were decided on the same day underscores their
inconsistencies as a group in that these inconsistencies cannot be explained away by
virtue of being decided at different times.
14
126 S. Ct. 2749 (2006). It appears that Boumediene v. Bush will be the fifth
case in this line. See infra note 104. Oral arguments have started in this case, but a
decision may not be handed down for some time. See id.
This Note acknowledges from the outset that there are far too many issues
related to these cases (and, more generally, the legal implications of the war on terror)
6
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647
qualified extent) advocate for judicial restraint in response to
questions such as those posed above, thereby supporting
resolution of threshold issues in accordance with narrow,
readily accessible criteria.15 By contrast, Rasul and Hamdan,
at least implicitly, prove more willing to consider less tangible
factors, including the relative equities of a habeas challenge,
in determining whether to review such cases on their merits.16
This Note will seek to show that these discrepancies contribute
to an unreliable and unstable line of precedent in the Court’s
post-9/11 war-on-terror jurisprudence and that this effect
exacerbates the political and judicial contention already
consuming the subject.
This Note will further criticize the Court’s emerging
tendency,17 as evidenced by Rasul and Hamdan, to incorporate
indirectly the merits of a detainee challenge, including any
arguably unusual underlying or surrounding circumstances,
within a jurisdictional or other threshold determination.18
More specifically, in these cases, the Court invoked the
purportedly extraordinary nature of the respective detainee
challenges in order to reinforce, justify, or defend purportedly
strict, formal threshold determinations prerequisite to a
review on the merits.19 The merits of these cases, as such,
appeared to creep into preliminary determinations of whether
to review these very same merits, but without any clear or
meaningful delineation. In addition to this conflation of
substantive attributes and threshold determinations, the
structure and content of these opinions makes it difficult to
determine whether certain, seemingly merits-based conclusions
functioned only as dicta (that is, additional non-binding
points) or were effectively collapsed into the primary threshold
for this Note to discuss in depth or even address at all. Not surprisingly, there already
is a substantial body of “war-on-terror” scholarship, entailing a wide variety of
approaches and opinions. Alas, due to practical constraints, this Note will only be able
to cite a small slice of this literature.
15
See infra Parts II.A, III.A. For an explanation of the parenthetical
qualification regarding Hamdi, see infra note 74 and accompanying text.
16
See infra Parts II.B.2-3, III.B.2.a-b.
17
But, at the same time, this Note still recognizes the overall instability of
these detainee cases as a group.
18
See infra Parts II.B, III.B.
19
See infra Parts II.B, III.B. In a related manner, Hamdan also exemplifies
an inclination to apply a relatively expansive temporal vantage point to resolving
detainee challenges when the treatment of detainees implicates substantial liberty
interests or raises far-reaching legal questions. See infra Part III.B.
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analyses.20 These overlapping characteristics may be identified
respectively as merits-creep and dicta-creep.21
Part I of this Note will provide an overview of the four
detainee challenges heard by the Supreme Court since 9/11.22
Part II will discuss in detail Padilla and Rasul regarding
whether (or to what extent) a federal court should consider the
merits or exceptional features of a detainee challenge in
assessing jurisdiction. Part II will also compare these cases to
Hamdi and Hamdan in relation to how narrowly or
expansively threshold issues should be reviewed. Part III,
which will elaborate more on Hamdi and Hamdan, will
examine whether federal courts should review claims premised
on circumstances that are still forming but are reasonably
20
See infra Parts II.B.2-3, III.B.2.a-b. For an expanded discussion on dicta,
see Hon. Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81
N.Y.U. L. REV. 1249 (2006). According to Judge Leval:
[D]icta often serve extremely valuable purposes. They can help clarify a
complicated subject. They can assist future courts to reach sensible, wellreasoned results. They can help lawyers and society to predict the future
course of the court’s rulings. They can guide future courts to adopt fair and
efficient procedures. What is problematic is not the utterance of dicta, but the
failure to distinguish between holding and dictum.
Id. at 1253. Leval, in short, advocates for the “careful use of dictum in judicial
opinions.” Id. (emphasis added). For an example of a federal case taking to heart
Leval’s “dicta about dicta,” by clearly delineating between holding and dictum, see Fox
TV Stations, Inc. v. FCC, 489 F.3d 444, 462 n.12. (2d Cir. 2007) (“We recognize that
what follows is dicta . . . .”) (discussing potential constitutional challenges to the FCC
indecency regime after invalidating it on administrative grounds). Interestingly, Leval
wrote a dissenting opinion in this case in which he “express[ed] neither agreement nor
disagreement with [the court’s] added discussion,” and noted that “the respect accorded
to dictum depends on its persuasive force and not on the fact that it appears in a court
opinion.” Id. at 474 n.19 (Leval, J., dissenting).
21
These terms are used to describe trends in the war-on-terror jurisprudence
that are otherwise difficult to articulate concisely; perhaps they should not be regarded
as having independent significance. The author is unaware of other instances where
these exact terms have been used.
Newt Gingrich, former Speaker of the U.S. House of Representatives,
explored the notion of “creep” in a very different sense, but also within the context of
national security and the war on terror. See Newt Gingrich, The Policies of War;
Refocus the Mission, S.F. CHRON., Nov. 18, 2003, available at http://www.newt.org/
backpage.asp?art=993 (“Congress must act now to rein in the Patriot Act, limit its use
to national security concerns and prevent it from developing ‘mission creep’ into areas
outside of national security.” (referring to Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(“USA PATRIOT Act”), Pub. L. No. 107-56, 115 Stat. 272 (2001)) (emphasis added)).
Mission creep is defined by one dictionary as “the gradual process by which a campaign
or mission’s objectives change over time, esp. with undesirable consequences.” See
Webster’s New Millennium Dictionary of English, Preview Edition (v 0.9.7 2008),
available at http://dictionary.reference.com/browse/Mission%20creep (last visited Oct.
10, 2007).
22
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likely to come to pass in the future.23 Part IV will conclude that
the Court should reverse the overreaching course set by Rasul
and Hamdan due to the difficulties intrinsic to determining
what constitutes special circumstances, let alone whether such
circumstances are special enough to justify departure from
basic threshold rules.
I.
THE POST-9/11 DETAINEE CHALLENGES: FACTS AND
HOLDINGS
Since 9/11, the Supreme Court has heard four federal
habeas petitions raised by alleged enemy combatants detained
outside of the civilian criminal system in the context of the war
on terror.24 These cases entail various factual scenarios: an
American citizen captured on U.S. soil and detained in the
United States;25 an American citizen captured in Afghanistan
following the American invasion there in October 2001 and
subsequently detained in the United States;26 and non-citizens
captured in Afghanistan and detained at the Guantanamo Bay
Naval Brig.27 The detainees in these cases challenged either the
circumstances of their confinement or the nature of the judicial
process they received or were set to receive.28 From these four
cases emerged an inconsistent line of precedent with regard to
the appropriate connection between the substantive attributes
of a detainee challenge and threshold determinations as well as
the scope of review warranted under the various circumstances
of these cases.
23
Part III will link to Part II to the extent that the decision to prospectively
analyze a detainee challenge turns on the merits of that case or the personal liberties
at stake.
24
25
Padilla, 542 U.S. at 430-31.
26
Hamdi, 542 U.S. at 510.
27
Hamdan, 126 S. Ct. at 2759; Rasul, 542 U.S. at 470-71.
28
The Court, however, directly reviewed the merits of only two of these
challenges: Hamdi v. Rumsfeld and Hamdan v. Rumsfeld. See infra Part I.C & I.D. By
contrast, Padilla v. Rumsfeld dealt exclusively with jurisdictional issues, see infra Part
I.A, as did Rasul v. Bush, at least as a formal matter. See infra Part I.B.
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A.
Rumsfeld v. Padilla: The First Post-9/11 Detainee
Challenge
In Rumsfeld v. Padilla29 (unlike in Rasul v. Bush30 or
Hamdan v. Rumsfeld31), the Court explicitly declined to
consider the special circumstances surrounding a detainee
challenge in determining whether the detainee had satisfied
threshold requirements necessary to its review of the merits.32
Stated differently, the Court refused to overlook traditional
jurisdictional requirements to address the profound debate
between national security and personal liberties (potentially)
presented by this challenge.33 Instead, the Court proceeded to
review threshold issues on a narrow level and to assign the
greatest legal relevance to readily accessible facts and
circumstances.34
1. The Facts of Rumsfeld v. Padilla
Jose Padilla, an American citizen, allegedly conspired
with al Qaeda in Afghanistan to execute terrorist attacks
against the United States.35 In May 2002, federal agents
detained Padilla at Chicago O’Hare International Airport after
he flew in from Pakistan.36 Padilla initially was held in federal
criminal custody in the Southern District of New York.37
Subsequently, pursuant to a presidential order stating that
Padilla was an enemy combatant,38 he was taken into custody
by the Department of Defense and relocated to a naval brig in
29
542 U.S. 426 (2004).
See infra Part I.B.
31
See infra Part I.C.
32
See Padilla, 542 U.S. at 447-51.
33
See id. at 450-51.
34
See infra Part II.A.
35
Padilla, 542 U.S. at 430-31.
36
Id. at 430.
37
Id. at 431.
38
Presidential Order to The Secretary of Defense (June 9, 2002). In making
this order, the President relied in part on the Authorization for Use of Military Force
Joint Resolution (“AUMF”). See id. (referring to Pub. L. 107-40, 115 Stat. 224
(authorizing the President “to use all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11, 2001, or harbored such
organizations or persons, in order to prevent any future acts of international terrorism
against the United States . . . .” )).
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South Carolina under the oversight of Commander Melanie
Marr.39
Two days after Padilla was relocated, Padilla’s counsel
filed a federal habeas petition on his behalf in the Southern
District of New York, naming as custodians Secretary of State
Donald Rumsfeld, Commander Marr, and President George W.
Bush.40 The petition alleged that Padilla’s detention violated
several constitutional provisions, including the Sixth Amendment and the Suspension Clause.41
2. The Holdings of the Padilla Court
Reversing the lower courts, a majority of the Padilla
Court held that, in accordance with traditional habeas
jurisdictional requirements, Padilla’s (proper) immediate
custodian was Commander Marr, not Secretary Rumsfeld, and
the Southern District of New York did not have jurisdiction
over Marr.42 As a result, the Southern District lacked
39
Padilla, 542 U.S. at 431-32.
Id. at 432. Early in the litigation, the District Court, Southern District of
New York, dismissed President Bush as a respondent. See Padilla ex rel. Newman v.
Bush, 233 F. Supp. 2d 564, 582 (S.D.N.Y. 2002) (“[T]he President should be dismissed
as a party [because] Padilla does not seem to be seeking relief from the President” and
because “the question of whether the President can be sued in this case raises issues
this court should avoid if at all possible, and it is certainly possible to avoid them
here.”). It does not appear that this ruling was challenged by any party to this case.
41
Padilla, 542 U.S. at 432. The district court had held that Secretary
Rumsfeld, but not Commander Marr, was the proper respondent, Padilla, F. Supp. 2d
at 578, and that the court had jurisdiction over Rumsfeld via New York’s long-arm
statute. Id. at 587. But on the merits the court held that the President had authority to
detain as enemy combatants American citizens captured in the United States. Id. at
587-89. The Court of Appeals, Second Circuit affirmed the jurisdictional holdings of the
district court, Padilla v. Rumsfeld, 352 F.3d 695, 724 (2d Cir. 2003), but ruled that the
President was not authorized to detain Padilla militarily on either a statutory or
constitutional basis. Id.
42
The Court identified a pair of jurisdictional requirements that it deemed
controlling in this case: the “immediate custodian” and “district of confinement” rules.
Id. at 435-36, 442; see also infra note 45. The immediate custodian rule requires that a
habeas petitioner name as his custodian the “warden of the facility where the prisoner
is being held, not the Attorney General or some other remote supervisory official.”
Padilla, 542 U.S. at 434-35 (citing Wales v. Whitney, 114 U.S. 564, 574 (1885)
(interpreting 28 U.S.C. § 2242(a) (stating that “the person who has custody” over the
petitioner is the proper respondent))). Notwithstanding any personal involvement
Secretary of State Rumsfeld may have had in the removal of Padilla from the civilian
criminal system and relocation to a military facility, Rumsfeld did not qualify as the
immediate custodian. Id. at 441-42. Commander Marr, not Rumsfeld, directly oversaw
the military brig where Padilla was detained and therefore was the proper respondent
in this case. Id. at 436.
The district of confinement rule, the second jurisdictional requirement,
simply requires that the petitioner file his habeas challenge in the district where he
was confined at the time of filing. Id. at 442 (citing Carbo v. United States, 364 U.S.
40
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jurisdiction over Padilla’s habeas challenge.43 The Court
therefore declined to review the merits of the case and
remanded for dismissal, but without prejudice.44
611, 617 (1961) (interpreting the phase “within their respective jurisdictions” to mean
that habeas relief may only be granted in the district in which the petitioner is
confined (citing 28 U.S.C. § 2241(a)))). Padilla’s petition did not satisfy this rule,
because it had been filed in the Southern District after, not before, the removal of
Padilla from this district. See id. at 432, 445. Although the Court had previously
interpreted the habeas statute as requiring “nothing more than that the court issuing
the writ have jurisdiction over the custodian,” id. at 442 (citing Braden v. 30th Judicial
Circuit Court of Ky., 410 U.S. 484, 495 (1973)), in core habeas cases such as this, see
infra notes 45-48 and accompanying text, “the district of confinement [was]
synonymous with the district court that ha[d] territorial jurisdiction over the proper
respondent.” Padilla, 542 U.S. at 444. Padilla, in other words, should have filed in
South Carolina, where both he and his immediate custodian (the proper respondent)
were located. See id. at 446.
43
Padilla, 542 U.S. at 451.
44
Id. at 430, 451. Justice Stevens dissented, see infra note 145, and Justice
Kennedy, in a relatively brief concurrence, explained why the Court should have
focused on “personal jurisdiction or venue” in resolving the dispute. Padilla, 542 U.S.
at 451-52 (Kennedy, J., concurring).
Subsequent to this decision, Padilla filed a habeas petition in the District
Court, District of South Carolina. Padilla v. Hanft, 389 F. Supp. 2d 678 (D. S.C. 2005),
rev’d, 423 F.3d 386 (4th Cir. 2005), cert. denied, 547 U.S. 1062 (2006). The district court
granted the petition on February 28, 2005, id. at 692, but the Court of Appeals for the
Fourth Circuit reversed, Padilla v. Hanft 423 F.3d 386, 389 (4th Cir. 2005), cert.
denied, 547 U.S. 1062 (2006), holding that the government could indefinitely detain
Padilla militarily as an enemy combatant pursuant to the AUMF. Id. at 389, 392
(Padilla’s “military detention as an enemy combatant by the President is
unquestionably authorized by the AUMF as a fundamental incident to the President’s
prosecution of the war against al Qaeda in Afghanistan,” considering that Padilla “took
up arms on behalf of [al Qaeda] and against our country . . . and . . . thereafter traveled
to the United States for the avowed purpose of further prosecuting that war on
American soil . . . .”); see also Ronald D. Rotunda, The Detainee Cases of 2004 and 2006
and Their Aftermath, 57 SYRACUSE L. REV. 1, 21-28 (2006) (discussing hypothetically
how the Supreme Court would have approached the merits of Padilla in light of the
plurality opinion in Hamdi).
On November 22, 2005, the federal government finally brought charges
against Padilla—including conspiracy to murder—and transferred him from military to
civilian custody. CNN-Law Center, Terror Suspect Padilla charged, CNN.com, Nov. 22,
2005, http://www.cnn.com/2005/LAW/11/22/padilla.case/index.html. See Robert M.
Chesney, Beyond Conspiracy? Anticipatory Prosecution and the Challenge of
Unaffiliated Terrorism, 80 S. CAL. L. REV. 425, 470-71 (2007) (discussing how
allegations of Padilla in civilian context lacked the “dramatic” edge of those raised
during Padilla’s military confinement); see also Neal Kumar Katyal, Hamdan v.
Rumsfeld: the Legal Academy Goes to Practice, 120 HARV. L. REV. 65, 92 (2006) (noting
that the indictment against Padilla was viewed as an affront against federal courts);
Fred Barbash, Padilla’s Lawyers Suggest Indictment Helps Government Avoid Court
Fight, WASH. POST, Nov. 22, 2005, available at http://www.washingtonpost.com/
wp-dyn/content/article/2005/11/22/AR2005112201061.html (discussing the judicial
avoidance strategy of the government, considering that the timing of the indictment
was just days before the government was scheduled to reply to Padilla’s Supreme Court
appeal); supra note 39. Previously, Padilla had petitioned for writ of certiorari to the
Supreme Court to challenge the ruling of the Fourth Circuit, see Padilla, 423 F.3d at
389, but the Court denied his petition in light of the intervening events described
above. See Padilla v. Hanft, 547 U.S. 1062, 1063-64 (2006). Padilla’s claims, in short,
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In arriving at this holding, the Court emphasized that
the immediate custodian and district of confinement rules were
defaults applicable to typical habeas petitions like Padilla’s,
which challenged present physical custody within the United
States.45 The Court focused on whether basic jurisdictional
rules applied based on the presence of “core” circumstances,
especially present physical confinement, as opposed to the
absence of any arguably unusual circumstances.46 It therefore
found that the core nature of Padilla’s petition remained intact
despite any unique characteristics of Padilla’s confinement.47 In
sum, at least for threshold jurisdictional purposes, a habeas
petition involving an American citizen detained militarily as
part of the war on terror could be described as “typical.”48
B.
Rasul v. Bush: The Second Post-9/11 Detainee
Challenge
In Rasul v. Bush, the Supreme Court diverged from the
principle espoused in Rumsfeld v. Padilla that special
circumstances should not affect the jurisdictional standing of
habeas petitioners, even those alleged to be enemy
combatants.49 In a manner somewhat comparable to the
majority in Hamdan v. Rumsfeld,50 the Rasul Court appeared
to condone invoking the merits of a detainee challenge to
reinforce and justify formal threshold conclusions.51 Rasul thus
rested on a presently hypothetical state of affairs. See infra note 186. A federal jury
trial commenced in May 2007, MiamiHerald.com, Timeline: The Jose Padilla Case,
http://www.miamiherald.com/multimedia/news/padilla/ (follow “2007” hyperlink) (last
visited Oct. 5, 2007), and on August 16, 2007, Padilla was convicted of terrorismrelated conspiracy charges “after little more than a day of [jury] deliberation.”
Abby Goodnough & Scott Shane, Padilla Is Guilty on All Charges in Terror Trial,
N.Y. TIMES, Aug. 17, 2007, available at http://www.nytimes.com/2007/08/17/us/
17padilla.html. Padilla is scheduled to be sentenced in January 2008. Jay Weaver,
Padilla Sentencing Hearing Postponed, MIAMI HERALD, Dec. 4, 2007.
45
See Padilla, 542 U.S. at 446-47; see also supra note 42 and accompanying
text. The immediate custodian and district of confinement rules, according to the
Court, together “compose[d] a simple rule” that “[w]henever a § 2241 habeas petitioner
[even one held in military detention] seeks to challenge his present physical custody
within the United States, he should name his warden as respondent and file the
petition in the district of confinement.” Padilla, 542 U.S. at 447 (referring to 28 U.S.C.
§ 2241).
46
Padilla, 542 U.S. at 449-50.
47
Id. at 441-42.
48
See id. at 451.
49
See supra notes 45-48.
50
See infra Part III.B.2.a-b.
51
See infra Part II.B.
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introduced confusion to the Court’s post-9/11 war-on-terror
jurisprudence regarding the appropriate degree of separation
between threshold determinations and the substantive
attributes of a detainee challenge.
1. The Facts of Rasul v. Bush
Rasul involved the consolidated claims of two
Australian and twelve Kuwaiti citizens who allegedly fought
alongside the Taliban following the U.S. invasion of
Afghanistan in October 2001 and who were captured during
related hostilities.52 From early 2002, the U.S. military held
these fourteen persons at the Guantanamo Bay naval base,
along with over 600 other non-Americans captured abroad.53
The Rasul detainees, all of whom denied any connection
to the Taliban or involvement in terrorist activity, were not
charged with any crimes or provided with access to counsel.54
They filed habeas petitions in the United States District Court
for the District of Columbia, seeking various forms of relief
ranging from release from custody to access to the judicial
process.55 The district court dismissed these claims for want of
jurisdiction,56 and the Court of Appeals for the District of
Columbia Circuit affirmed.57
2. The Holding of the Rasul Court
The Supreme Court reversed the lower courts, holding
that federal district courts have jurisdiction over habeas
petitions raised by non-citizens captured abroad and detained
at Guantanamo Bay58 per the applicable federal habeas
52
Rasul v. Bush, 542 U.S. 466, 470-71 (2004).
Id. at 471.
54
Id. at 471-72.
55
Id. at 472-73.
56
Rasul v. Bush, 215 F. Supp. 2d 55, 68 (D.D.C. 2002) (“aliens detained
outside the sovereign territory of the United States” may not “petition for a writ of
habeas corpus” (referring to Johnson v. Eisentrager, 339 U.S. 763 (1950))).
57
Al Odah v. U.S., 321 F.3d 1134, 1144 (D.C. Cir. 2003) (Under Eisentrager,
“‘the privilege of litigation’ does not extend to aliens in military custody who have no
presence in ‘any territory over which the United States is sovereign.’” (citing Johnson
v. Eisentrager, 339 U.S. 763, 777-78 (1950))).
58
Rasul, 542 U.S. at 483-84. This decision has been riddled with controversy
with regards to proper interpretation and scope of application. The text accompanying
this footnote presents one, but not the only, plausible reading of the majority opinion of
Rasul. See supra Part II.B. As described in one article, the Rasul Court “failed to make
clear whether its rationale was limited to Guantanamo Bay or instead implied that
53
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655
statute59 and in light of relevant Supreme Court precedent
interpreting this statute.60 The Court remanded the case to the
district court for review on the merits.61
In its analysis, the Court first noted that the
circumstances of confinement in this case were distinguishable
“in important respects” from those in Johnson v. Eisentrager, a
federal habeas jurisdiction existed to review the detention of noncitizens held by the
United States anywhere in the world.” Richard H. Fallon, Jr. & Daniel J. Meltzer,
Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 HARV. L.
REV. 2029, 2058 (2007); see also John Yoo, Courts at War, 91 CORNELL L. REV. 573, 589
(2006) (“Rasul leaves unclear . . . whether judicial review would apply beyond Cuba” to
the likes of “Saddam Hussein” and “Osama bin Laden.”). Justice Kennedy, in his
concurrence, assumed the more expansive application, see supra note 168, as did
Justice Scalia in his dissent. See Rasul, 542 U.S. at 499 (Scalia, J., dissenting) (“federal
courts will entertain petitions from these prisoners . . . around the world, challenging
actions and events far away . . . .”); see also Joseph R. Pope, The Lasting Viability of
Rasul in the Wake of the Detainee Treatment Act of 2005, 27 N. ILL. U. L. REV. 21, 27
(2006) (agreeing with Scalia’s dissent, considering that American jurisdiction and
control “necessarily” extends to territories where the military detains persons).
59
See 28 U.S.C. § 2241 (2000).
60
See infra notes 66-68 and accompanying text.
61
Rasul, 542 U.S. at 485. Justice Scalia scathingly dissented, see infra note
58; see also infra note 168, and Justice Kennedy concurred, offering an alternative
approach, see infra note 168.
In response to the majority holding, Congress passed, and the President
signed into law on December 30, 2005, the Detainee Treatment Act of 2005 (“DTA”),
Pub. L. 109-148, 119 Stat. 2739 (2005) (codified as amended at 10 U.S.C. § 801 and 28
U.S.C. § 2241). The DTA effectively precluded federal review of habeas challenges “by
alien[s] detained . . . at Guantanamo Bay.” See DTA, § 1005(e)(1) (“Except as provided
in section 1005 of the [DTA], no court, justice, or judge shall have jurisdiction to hear or
consider[] (1) an application for a writ of habeas corpus filed by or on behalf of an alien
detained by the Department of Defense at Guantanamo Bay, Cuba; or (2) any other
action against the United States or its agents relating to any aspect of the detention by
the Department of Defense of an alien at Guantanamo Bay, Cuba, who[] (A) is
currently in military custody; or (B) has been determined by the United States Court of
Appeals for the District of Columbia Circuit in accordance with the procedures set forth
in section 1005(e) of the [DTA] to have been properly detained as an enemy
combatant.”); see also Pope, supra note 58, at 27 (discussing history and implications of
DTA). This can be viewed as a significant retrenchment of federal judicial power in
favor of the Executive branch. See Elizabeth Starrs, Protect Habeas Corpus, DENVER
POST, April 29, 2007, at E-O1 (explaining that “Congress tried to circumvent [Rasul] by
passing the [DTA],” but noting that “[l]egislation designed to reinstate the right of
habeas corpus for Guantanamo Bay detainees is currently” under consideration.).
“However,” as emphasized by Pope, the DTA “failed to address the broader implications
of Rasul, which would allow federal courts to entertain habeas petitions brought by
detainees held in other theaters of the conflict.” Pope, supra note 58, at 24, 33-34
(opining that “Rasul’s imperfect holding opened a Pandora’s box Congress has failed to
close, leaving a great deal of uncertainty in an area where certainty is needed” and
suggesting that Congress “act quickly . . . . [to] draft legislation stripping the federal
courts of habeas jurisdiction over all detainees captured and held in territories outside
the United States,” so as “to more fully remediate the infirmities caused by Rasul.”).
Also, Congress failed to explicitly apply the jurisdiction-stripping provisions of the DTA
retroactively to pending cases (such as Hamdan v. Rumsfeld). See supra note 104 and
accompanying text. But this shortcoming has apparently been fixed through
subsequent legislation. See id.
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case arising during World War II.62 The Rasul detainees, unlike
the Eisentrager detainees, had been detained for over two years
in territory subject to the United States’ exclusive control and
jurisdiction, without receiving access to counsel and without
having been charged with any crime.63 Nonetheless, the Rasul
Court emphasized that the outcome determinative facts
(relating to confinement) in Eisentrager64 only bore on the issue
of whether the detainees were constitutionally (as opposed to
statutorily) entitled to seek habeas relief.65
More essential to the resolution of the current dispute
was Braden v. Circuit Court of Kentucky, which postdated
Eisentrager.66 Since Braden, “the prisoner’s presence within the
territorial jurisdiction of the district court [had] not [been] ‘an
invariable prerequisite’ to the exercise of district court
jurisdiction under the federal habeas statute.”67 Satisfying the
62
Eisentrager, 339 U.S. at 765-66. According to the Rasul Court, the
Eisentrager Court considered the following facts critical to its conclusion that the
detainees in that case were not “constitutionally entitled” to pursue habeas relief: that
each detainee was
(a) . . . an enemy alien; (b) ha[d] never been . . . in the United States; (c) was
captured outside of [United States] territory and there held in military
custody as a prisoner of war; (d) was tried and convicted by a Military
Commission sitting outside the United States[] (e) for offenses against laws of
war committed outside the United States; (f) and [was] at all times
imprisoned outside the United States.
Rasul, 542 U.S. at 475-76 (quoting Eisentrager, 339 U.S. at 777).
63
Id. at 476. The Court also noted that the Rasul detainees were “not
nationals of countries at war with the United States, and they den[ied] that they ha[d]
engaged in or plotted acts of aggression against the United States . . . .” Id.
64
See supra note 62.
65
Rasul, 542 U.S. at 476 (citing Eisentrager, 339 U.S at 777); see also Pope,
supra note 58, at 26 (“[T]he Court characterized Eisentrager as a case considering the
constitutional parameters of habeas corpus and not the statutory question that was
presented in Rasul.”) (footnote omitted). Eisentrager concluded, however, that the
detainees did not have a statutory right to pursue habeas relief because the habeas
statute, as that Court had interpreted it, required that the district court reviewing the
habeas petition have jurisdiction over the petitioners. Eisentrager, 339 U.S at 777-78.
Yet the Rasul Court concluded that the current case was controlled not by Eisentrager,
but by the more recent case, Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484,
495 (1973), which had effectively “overruled the statutory predicate to Eisentrager’s
holding.” Rasul, 542 U.S. at 478-79.
66
See Rasul, 542 U.S. at 478-79; Braden, 410 U.S. at 495.
67
Rasul, 542 U.S. at 478 (quoting Braden, 410 U.S. at 495); see also Fallon &
Meltzer, supra note 58, at 2051 (describing Braden as an example of the application by
the Supreme Court of the common law, as opposed to agency, approach to habeas
jurisdiction, whereby a relatively dynamic statutory interpretation was afforded “not
only to avoid constitutional difficulties, but also simply to achieve sensible results in
circumstances that Congress might not have foreseen”).
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habeas statute instead depended on whether the district court
could reach petitioners’ custodians by service of process.68
In the current case, no party contended that the
petitioners’ custodians were not subject to the jurisdiction of
the District Court for the District of Columbia.69 Pleading
requirements, moreover, had been satisfied.70 The federal
habeas statute, as the Court interpreted it, required “nothing
more” before a district court could entertain this case.71
C.
Hamdi v. Rumsfeld: The Third Post-9/11 Detainee
Challenge
Hamdi v. Rumsfeld addressed not a jurisdictional issue,
as did Padilla v. Rumsfeld72 and Rasul v. Bush,73 but the
legality of a detainee’s confinement under the Authorization for
Use of Military Force (“AUMF”).74 In addressing the merits of
the habeas challenge, a plurality of the Court supported an
approach whereby legal determinations turned on the
circumstances of confinement as of the time of judicial review
and not on speculations, even if fairly reasonable, about future
conditions.75 This relatively limited temporal vantage point
68
Rasul, 542 U.S. at 478-79.
Id. at 483.
70
Id. See infra note 162 and accompanying text.
71
Rasul, 542 U.S. at 483-84. The Court further held that the principle that a
statute should be presumed to not have extraterritorial application did not apply to an
area over which the United States exercised complete and exclusive (though not
necessarily sovereign) control. Id. at 480 (citing Foley Bros., Inc. v. Filardo, 336 U.S.
281, 285 (1949)). Moreover, according to the Court, the habeas statute did not make
any distinctions based on citizenship or lack thereof. Id. at 481.
72
See supra Part I.A.
73
See supra Part I.B.
74
Hamdi v. Rumsfeld, 542 U.S. 507, 516-24 (2004). The legality of Hamdi’s
detention under the AUMF is not a threshold issue in the same way that the issues
described in the other three post-9/11, war-on-terror detainee challenges are. (In
Padilla, Rasul, and Hamdan, the respective threshold issues had to be resolved in a
particular manner—namely, in a manner favorable for the detainee—in order for
review on the merits to proceed). In terms of resolution, this legality issue logically
preceded that of the judicial access owed to Hamdi (since this latter issue seemingly
would not be reached if Hamdi could not be lawfully detained in the first place), but
really was a merits-based determination in its own right. Yet inextricably linked to this
determination of the legality of the AUMF were determinations of the proper temporal
vantage point from which to assess this issue and, more simply, the extent to which to
consider the merits of this challenge. Thus, at least to some extent, it may be
appropriate (beyond merely convenient) to describe these underlying determinations as
threshold considerations.
75
Put another way, prospects, even if unprecedented in nature and even if
likely to occur, generally should not be considered justiciable if they have not yet been
substantially developed or realized. See infra Part III.A.
69
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resembled in certain ways the winnowing-down method
endorsed by Padilla v. Rumsfeld (though with regard to
jurisdictional requirements),76 but differed substantively from
the more expansive analytical framework employed later in
Hamdan v. Rumsfeld.77
1. The Facts of Hamdi v. Rumsfeld
In Hamdi, the Court reviewed the claims of Yaser Esam
Hamdi, an American citizen accused of fighting alongside the
Taliban following the U.S. invasion of Afghanistan in late
2001.78 Hamdi was captured by the Northern Alliance soon
after the United States invaded.79 He was eventually turned
over to the U.S. military and transferred to the Guantanamo
Bay naval base.80 In April 2002, after learning that Hamdi was
an American citizen, the government relocated him to a naval
brig in Virginia.81
In June 2002, Hamdi’s father filed a habeas petition on
behalf of his son, alleging that Hamdi had been held without
access to any meaningful judicial process and had not been
charged with any crime, in violation of the Fifth and
Fourteenth Amendments to the Constitution.82 The various
forms of relief sought included release from custody, access to
counsel, and permission to challenge Hamdi’s designation as an
enemy combatant.83
2. The Holdings of the Hamdi Court
The Hamdi Court did not produce a majority; Justice
O’Connor authored the plurality opinion.84 The plurality held
76
78
Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004).
79
Id.
80
Id.
81
Id. By the time the Supreme Court heard this case, Hamdi had been
transferred to a military brig in South Carolina. Id.
82
Id. at 511. In other documents, Hamdi’s father claimed that his son had
traveled to Afghanistan to do relief work and had only been there for two months prior
to 9/11, but became trapped there during hostilities following 9/11 due to his youthful
inexperience. (He was only twenty at the time.) Id. at 511-12.
83
Id. at 511. For a summary of the complicated procedural history of Hamdi,
see James B. Anderson, Hamdi v. Rumsfeld: Judicious Balancing at the Intersection of
the Executive’s Power to Detain and the Citizen-Detainee’s Right to Due Process, 95 J.
CRIM. L. & CRIMINOLOGY 689, 695-97 (2005).
84
Hamdi, 542 U.S. at 508.
77
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659
that Congress, through the AUMF, had authorized the
detention of American citizens held in the United States whom
the government had designated as enemy combatants.85 But
the plurality also held that such citizen-detainees, in
accordance with constitutional due process, must be provided
with a meaningful opportunity, beyond the “some evidence”
standard, to challenge the factual basis of their designation as
enemy combatants before a neutral adjudicator.86 The Court
remanded the case for further proceedings.87
The latter holding, though vague, had significant
consequences for detainees,88 but this Note will only focus on
85
Id. at 518. This conclusion technically constituted a holding of the Court,
since Thomas, notwithstanding that he dissented, “agree[d] with the plurality that . . .
Congress [through the AUMF] ha[d] authorized the President” to “detain those arrayed
against our troops . . . .” Id. at 587 (Thomas, J., dissenting); see also Rotunda, supra
note 44, at 15, 28 (explaining how under the circumstances “it [made] sense to treat
O’Connor’s resolution as a workable holding of the Court”). Additionally, in Hamdan v.
Rumsfeld (the subsequent detainee challenge arising from the war on terror), the Court
assumed, citing Hamdi, “that the AUMF activated the President’s war powers, and
that those powers include the authority to convene military commissions in
appropriate circumstances.” 126 S. Ct. 2749, 2775 (2006) (citations omitted) (referring
to Hamdi, 542 U.S. at 518). But see infra notes 109-114 and accompanying text.
86
Hamdi, 542 U.S. at 533, 537 (O’Connor, J., plurality opinion). As two other
members of the Court concurred with the plurality on this point, it constituted a
holding of the Court. Id. at 553 (Souter, J., concurring in part). But the concurrence
disagreed with the plurality’s conclusion that the due process required under the
circumstances was significantly less than that required in the context of the civilian
criminal justice system. Id. at 553-54 (referring to id. at 534-35 (O’Connor, J., plurality
opinion)). The plurality concluded, for example, that a federal court could abide by a
rebuttable presumption that favored evidence presented by the government. Id. at 534.
Hearsay evidence, moreover, could be deemed admissible. Id.; see also id. at 538
(noting the “possibility that the standards we [the plurality] articulated could be met
by an appropriately authorized and properly constituted military tribunal”).
87
Id. at 539. For a discussion of the concurring and dissenting opinions (of
which the most interesting is that of Justice Scalia, joined by Justice Stevens), see
Jared Perkins, Note and Comment, Habeas Corpus in the War Against Terrorism:
Hamdi v. Rumsfeld and Citizen Enemy Combatant, 19 BYU J. PUB. L. 437, 451-55
(2005).
In October 2004, the government, rather than face further judicial
proceedings, released Hamdi from custody and deported him to Saudi Arabia upon the
stipulation that Hamdi renounce his citizenship and agree to several other conditions.
CNN-World, Hamdi Voices Innocence, Joy About Reunion, CNN.com, Oct. 14, 2004,
http://www.cnn.com/2004/WORLD/meast/10/14/hamdi/.
88
In response to Hamdi (see supra note 86 and accompanying text), the
government convened Combatant Status Review Tribunals (“CSRTs”) to determine
whether persons detained at Guantanamo Bay were enemy combatants. See Deputy
Secretary of Defense, Order Establishing Combatant Status Review Tribunals, July 7,
2004, http://www.dod.gov/news/Jul2004/d20040707review.pdf; David B. Rivkin Jr. &
Lee A. Casey, How the System Works; Fact and Fiction on Enemy Combatants, WASH.
TIMES, Sept. 8, 2005, at A21; see also Robert A. Peal, Special Project Note, Combatant
Status Review Tribunals and the Unique Nature of the War on Terror, 58 VAND. L. REV.
1629, 1650-54 (2005) (discussing CSRT procedures). These tribunals have faced
considerable criticism. See, e.g., Neil A. Lewis, Guantánamo Prisoners Getting Their
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the first holding. The plurality basically concluded that,
consistent with the traditional law of war, the “necessary and
appropriate force” authorized by the AUMF included the
detention of enemy combatants.89 Because hostilities were
ongoing in Afghanistan,90 Hamdi’s continued detention could be
justified even if his detention had no foreseeable endpoint and
feasibly could last for the rest of his life.91
D.
Hamdan v. Rumsfeld: The Fourth Post-9/11 Detainee
Challenge
Hamdan v. Rumsfeld, the fourth detainee challenge
heard by the Supreme Court following 9/11, ended on more
than one note of inconsistency with respect to the preceding
jurisprudence.92 Unlike the plurality in Hamdi v. Rumsfeld, the
Hamdan Court did not refrain from reviewing the legality of
circumstances that were fairly anticipated but that had not yet
occurred.93 Similarly, contrary to the logic of Rumsfeld v.
Padilla94 but in part reflecting that of Rasul v. Bush,95 the
Court seemed to collapse its perception of the strong merits of
the case (as well as its public importance) into threshold
determinations prerequisite to review on the merits.96
Day, But Hardly in Court, N.Y. TIMES, Nov. 8, 2004, at A1 (“Critics have complained
that the tribunals are fatally flawed, not only because the detainees do not have
lawyers but because they are generally hampered in disputing any charges because
they are not allowed to see most of the evidence against them because it is classified.”);
Joseph Blocher, Comment, Combatant Status Review Tribunals: Flawed Answers to the
Wrong Question, 116 YALE L.J. 667, 670 (2006) (CSRTs are not in compliance with
Geneva Conventions, because they do not determine POW status of detainees); see also
Mark Huband, Dock of the Bay, FINANCIAL TIMES, Dec. 11, 2004, at 16 (account of
journalist permitted to attend tribunal hearing). But see Rivkin & Casey, supra
(arguing that the “current [CSRT] system offers a solid basis for processing enemy
combatants,” but advocating congressional codification of the system so as to reduce
political pressure and “judicial second-guessing”).
89
See Hamdi, 542 U.S. at 518-19 (quoting AUMF, supra note 38) (internal
quotation marks omitted).
90
91
See Hamdi, 542 U.S. at 521. This aspect of the decision will be discussed in
detail in the analysis section of this Note. See infra Part III.A.
92
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
93
See infra Part III.
94
95
96
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1. The Facts of Hamdan v. Rumsfeld
Salim Ahmed Hamdan, a Yemeni national, was
captured by Afghan militias in November 2001 during
hostilities between the United States and the Taliban.97 The
U.S. military subsequently obtained custody of Hamdan and, in
June 2002, relocated him to the American prison in
Guantanamo Bay.98 In July 2004, pursuant to a 2001
presidential order authorizing the Secretary of Defense to
establish military commissions to try suspected terrorists,99 the
government charged Hamdan with conspiracy to “commit . . .
offenses triable by military commission.”100
On July 13, 2004, Hamdan filed a habeas petition “to
challenge the government’s intended means of prosecuting this
charge.”101 According to Hamdan, the commission “violate[d] the
most basic tenets of military and international law, including
the principle that a defendant must be permitted to see and
hear the evidence against him.”102
97
Hamdan, 126 S. Ct. 2749, 2759 (2006).
Id.
99
Executive Order, 66 Fed. Reg. 57,833 (Nov. 13, 2001) (“Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”).
100
Hamdan, 126 S. Ct. at 2759 (alteration in original) (internal quotation
marks omitted). The charging instrument alleged that from February 1996 to
November 24, 2001, Hamdan “willfully and knowingly joined an enterprise of persons
who shared a common criminal purpose and conspired and agreed with [named
members of al Qaeda] to commit the following offenses triable by military commission:
attacking civilians; attacking civilian objects; murder by an unprivileged belligerent;
and terrorism.” Id at 2761 (alteration in original) (internal quotation marks omitted).
101
Id. at 2759. Hamdan originally filed this petition in the United States
District Court for the Western District of Washington, but this court transferred the
petition to the United States District Court for the District of Columbia after the
government formally charged Hamdan. Id. at 2761. In the meantime, a CSRT (see
supra note 88) “convened pursuant to a military order issued on July 7, 2004, decided
that Hamdan’s continued detention at Guantanamo Bay was warranted because he
was an enemy combatant.” Hamdan, 126 S. Ct. at 2761 (internal quotation marks
omitted); see also infra note 114. At the same time, the military commission set to try
Hamdan commenced proceedings. Hamdan, 126 S. Ct. at 2761.
102
Hamdan, 126 S. Ct. at 2759. Hamdan also argued that the conspiracy
charge had no basis in either federal statutory law or the common law of war. Id.; see
also infra note 114. For thorough summaries of the lower court decisions and
underlying facts in this case, see Larissa Eustice, Case Summary, International
Decision: Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), 39 CORNELL INT’L L.J.
457, 457-75 (2006).
98
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2. The Holdings of the Hamdan Court
The Supreme Court first held that the recently enacted
Detainee Treatment Act (“DTA”)103 did not preclude the Court’s
jurisdiction over this claim. Although the Act strips federal
courts of jurisdiction to hear habeas challenges filed by noncitizens detained at Guantanamo Bay (except for the Court of
Appeals for the District of Columbia Circuit in limited
circumstances), it did not apply to cases pending at the time of
its enactment.104
103
DTA, supra note 61.
Hamdan, 126 S. Ct. at 2769 (finding “nothing absurd about a scheme
under which pending habeas actions—particularly those . . . that challenge the very
legitimacy of the tribunals whose judgments Congress would like to have reviewed—
are preserved, and more routine challenges to final decisions rendered by those
tribunals are carefully channeled to a particular court and through a particular lens of
review”). While this is a very significant jurisdictional holding, this Note will focus on
other threshold determinations made by the Court. For more information on this
holding, see Julia Y. Capozzi, Note, Hamdan v. Rumsfeld: A Short-Lived Decision?, 28
WHITTIER L. REV. 1303, 1307-08, 1321-23 (2007) (stating that the holding was “wellfounded” given that the DTA lacks explicit language indicating that the DTA applies
“to pending cases arising out of [CSRTs] and military commissions decisions” with
respect to habeas petitions, and, “[t]hus, the Court was reasonable in holding that
where Congress omits language from a portion of a statute it means that Congress
intended to omit that language”) (citations omitted); Michael Greenberger, You Ain’t
Seen Nothin’ Yet: The Inevitable Post-Hamdan Conflict Between the Supreme Court and
the Political Branches, 66 MD. L. REV. 805, 809 (noting that habeas bar authors
“certainly” thought that DTA “clearly applied to cases pending at the time of” its
passage); Jana Singer, Hamdan as an Assertion of Judicial Power, 66 MD. L. REV. 759,
761-63 (2007) (stating that the holding “was far from self-evident,” considering
competing canons and precedents, but noting that the Court avoided complicated
constitutional analysis). The practical effect of this holding, as noted by a dissenting
Justice Scalia, would be “to keep the [federal] courts busy for years to come.” See
Hamdan, 126 S. Ct. at 2817-18 (Scalia, J., dissenting); see also Burt Neuborne, Spheres
of Justice: Who Decides? 74 GEO. WASH. L. REV. 1090, 1099 (2006) (“[T]he majority’s
decision preserve[d] the jurisdiction of the lower federal courts over some six hundred
habeas corpus petitions from Guantanamo detainees pending on the day the
jurisdiction-stripping provision became effective.”).
Much as Congress responded to Rasul by passing the DTA, see supra note
61, Congress responded to Hamdan by passing the Military Commissions Act of 2006
(“MCA”), Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006), which apparently
supersedes the jurisdictional holding of Hamdan by suspending statutory habeas
corpus for alien-detainees. See MCA, § 7 (“No court, justice, or judge shall have
jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on
behalf of an alien detained by the United States who has been determined by the
United States to have been properly detained as an enemy combatant or is awaiting
such determination.”). It is beyond the scope of this Note to explore in depth the effect
of the MCA on habeas jurisdiction and the attendant constitutional implications;
numerous articles have undertaken such comprehensive examinations. See, e.g., Daniel
Michael, The Military Commissions Act of 2006, 44 HARV. J. ON LEGIS. 473, 473, 477
(2006) (concluding that the MCA “jurisdiction-stripping provision . . . is inconsistent
with the reach of constitutional guarantees as they have been defined in cases arising
from the war on terror,” but noting that the “MCA makes substantial improvements in
other areas”); Michael C. Dorf, The Orwellian Military Commissions Act of 2006, 5 J.
104
2008]
663
The Court next rejected the government’s contention
that, even if the Court had jurisdiction to review Hamdan’s
procedural challenge to the military commission, the Court
should refrain from doing so in advance of a final outcome of
pending military proceedings in accordance with a judge-made
rule espoused in Schlesinger v. Councilman.105 Rather, the
Court found that immediate review of Hamdan’s procedural
challenge by a civilian court was warranted in light of the
INT’L CRIM. JUST. 10, 13, 15 (2007) (arguing that the jurisdiction-stripping provision is
unconstitutional “[a]bsent a valid suspension” of habeas corpus “to the extent that it
authorizes the government to . . . detain a permanent resident alien residing in [for
example] New York City, without ever permitting the alien to file a habeas petition”).
Dorf further states that the MCA presents “a veritable cornucopia of law school
examination questions,” such as “[u]nder what circumstances, if any, does an alien not
present in the territory of the United States but held by US authorities have a
constitutional right” to seek habeas relief in a federal court? Id. (emphasis added); see
also Michael C. Dorf, Why The Military Commissions Act Is No Moderate Compromise,
FINDLAW, Oct. 11, 2006, http://writ.news.findlaw.com/dorf/20061011.html (criticizing
the act for “all but eliminat[ing] access to civilian courts for non-citizens . . . that the
government, in its nearly unreviewable discretion, determines to be unlawful enemy
combatants.”); Karen DeYoung, Court Told It Lacks Power in Detainee Cases, WASH.
POST, Oct. 20, 2006, at A18 (discussing how the statute has been criticized by some
U.S. Senators because it effectively suspends habeas corpus).
Litigation challenging the MCA (some of which involves Hamdan, see infra
note 114) has been underway since its passage, as would be expected given the
momentous implications of the Act. On December 5, the Supreme Court began to hear
oral arguments in Boumediene v. Bush, See The Oyez Project, Boumediene v. Bush:
Oral Argument, transcript available at http://www.oyez.org/cases/2000-2009/2007/
2007_06_1195/argument/; Patti Waldmeir, Detainee Cases Split US Justices,
FINANCIAL TIMES (London), Dec. 6, 2007, at 8, after reversing its initial denial of
certiorari to hear this case. See Boumediene v. Bush, 127 S. Ct. 3078 (2007) (vacating
Boumediene v. Bush, 127 S. Ct. 1478 (2007) (denying certiorari)). This challenge stems
from a ruling by the Court of Appeals, District of Columbia, denying the consolidated
habeas petitions of aliens detained at the Guantanamo Bay naval base. Boumediene v.
Bush, 476 F.3d 981 (D.C. Cir. 2007). That court held that federal courts lacked
jurisdiction in these cases because the jurisdiction-stripping provision of the MCA
applied to pending cases, id. at 986-88, and because this provision did not amount to an
unconstitutional suspension of habeas corpus. Id. at 988-94. But see Hamdan v.
Rumsfeld, 464 F. Supp. 2d 9, 16 (D.D.C. 2006) (“If and to the extent that the MCA
operates to make the writ unavailable to a person who is constitutionally entitled to it,
it must be unconstitutional.”). For more background on this decision,
see Linda Greenhouse, Legal Battle Resuming on Guantanamo Detainees, N.Y.
TIMES, Sept. 2 2007, available at http://www.nytimes.com/2007/09/02/washington/
02scotus.html?pagewanted=1&_r=1 (discussing the political and judicial contexts
surrounding this case); see also Michael, supra, at 481-92 (2007) (referencing the Court
of Appeals decision in a discussion of the constitutionality of the MCA jurisdictionstripping provision).
105
Hamdan, 126 S. Ct. at 2771 (discussing Schlesinger v. Councilman, 420
U.S. 738 (1975)). According to the Hamdan Court, the dual comity considerations
underlying the Councilman doctrine—military discipline and respect for the
congressionally established integrated military court system—were not present here.
Id. Hamdan was not a member of the armed forces and the military commission set to
try him was not part of this integrated court system. Id.
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structural deficiencies of the Executive-established review
mechanism for the commission decision.106
Additionally, according to the Court, there were grounds
for presuming the illegality of the procedures governing the
military commission.107 In particular, under the commission
rules, Hamdan could be excluded from participating in his own
trial.108
Moving to the merits,109 the Court held that that the
military commission was not explicitly authorized by the
AUMF, DTA, or Uniform Code of Military Justice (“UCMJ”).110
These congressional enactments, even when read together, at
most recognize the government’s general right to convene
military commissions, but they did not apply under the
particular circumstances.111 In the absence of explicit
congressional authority, the UCMJ permits trial by military
commission only if the commission complies with the
“Constitution and laws, including the law of war.”112 The Court
held that the military commission in question did not comply
with the laws of war, including the UCMJ itself, because the
major deviations from court-martial procedures113 were not
justified by military necessity.114
106
Id. at 2771-72 (expedited review warranted in “view of the public
importance of the questions raised . . . and of the duty which rests on the courts, in
time of war as well as in time of peace, to preserve unimpaired the constitutional
safeguards of civil liberty” (citing Ex parte Quirin, 317 U.S. 1, 19 (1942))). Put another
way, under the circumstances there should not have been any avoidable delay. See id.;
see also infra Part III.B.2.a.
107
Hamdan, 126 S. Ct. at 2788.
108
Id. at 2786. Furthermore, admissible evidence encompassed basically
anything with probative value, including hearsay and unsworn statements. Id. at 278687. These and other reasons for not abstaining will be discussed in greater detail infra
Part III.B.
109
This Note assesses the Court’s holdings on the merits only insofar as they
influenced or effectively interacted with the threshold determinations regarding
whether the Court should review on the merits Hamdan’s procedural challenge.
110
Hamdan, 126 S. Ct. at 2774-75 (referring to the AUMF, supra note 38;
DTA, supra note 61; and UCMJ, 10 U.S.C. § 821 (2000)).
111
112
Id. at 2775 (internal quotation marks omitted); see also UCMJ, 10 U.S.C.
§ 821 (2000) (“The provisions of this code conferring jurisdiction upon courts-martial
shall not be construed as depriving military commissions . . . of concurrent jurisdiction
in respect of offenders or offenses that by statute or by the law of war may be tried by
such military commissions, provost courts, or other military tribunals.” (emphasis
added)).
113
See infra Part III.B.2.a.
114
Hamdan, 126 S. Ct. at 2792-93; see also infra Part III.B.2.b. For similar
reasons, the commission did not qualify as a “regularly constituted” court and thus
violated Common Article 3 of the Geneva Conventions. Hamdan, 126 S. Ct. at 2793,
2796-97 (referring to Geneva Convention Relative to the Treatment of Prisoners of War
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art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention
POW Treatment]. The Article provides, “In the case of armed conflict not of an
international character . . . the following acts . . . remain prohibited . . . the passing of
sentences . . . without previous judgment pronounced by a regularly constituted
court . . . .” Id., art. 3. This provision is typically referred to as “Common Article 3” as it
is found in all four of the Geneva Conventions, but for the sake of brevity, the Court
only cited the third Convention. See id. at 2795 n.59.
A plurality of the Court also held that the law of war did not recognize
conspiracy as a crime. Id. at 2777-78 (Stevens, J., plurality opinion). For a discussion of
the several concurring and dissenting opinions (five in all), see Julia Y. Capozzi, supra
note 104, at 1315-21; Cass R. Sunstein, Clear Statement Principles and National
Security: Hamdan and Beyond, 2006 SUP. CT. REV. 1, 17-22 (2006). Sunstein even
“nominate[s] Hamdan as the all-time champion” of divisive Supreme Court opinions.
Id. at 4.
On remand from the Supreme Court, the District Court for the District of
Columbia confronted the case in the context of the newly enacted MCA. See Hamdan v.
Rumsfeld, 464 F. Supp. 2d 9 (D.D.C. 2006); see also supra note 104. The court held that
Hamdan, now deprived of a statutory basis for seeking habeas relief, Hamdan, 464 F.
Supp. 2d at 12 (finding “unsuccessful” the argument that the MCA retroactivity
provision did not apply to the jurisdiction-stripping provision), was not constitutionally
entitled to the great writ of habeas corpus given his status as an extraterritorially
located alien-detainee. Hamdan, 464 F. Supp. 2d at 12, 18. For further discussion of
this decision, see Neil A. Lewis, Judge Sets Back Guantanamo Detainees, N.Y. TIMES,
Dec. 13, 2007, at A32; Greenberger, supra note 104, at 810 n.31; Jordan J. Paust, Above
the Law: Unlawful Executive Authorizations Regarding Detainee Treatment, Secret
Renditions, Domestic Spying, and Claims to Unchecked Executive Power, 2007 UTAH L.
REV. 345, 416 n.208 (2007) (disagreeing with aspects of the court’s analysis). In a later
proceeding, the Supreme Court declined to hear the “unusual” petition for certiorari of
Hamdan and fellow detainee, Omar Khadr. Hamdan v. Gates, 476 F.3d 981 (D.C. Cir.
2007), cert. denied, 127 S. Ct. 2133 (2007); Brief for the Respondents at 1, Hamdan v.
Gates, 127 S. Ct. 2133 (2007), 2007 WL 965445; see also Bruce Zagaris, U.S. Supreme
Court Denies Certiorari for Guantanamo Petitions, 23 INT’L ENFORCEMENT L. REP. 7
(2007) (discussing the petitioners’ circumstances).
In June 2007, a military judge dismissed all military commission (i.e., war
crimes) charges against Hamdan due to the failure of the CSRT system to classify him
as an “unlawful” enemy combatant (as opposed to just an “enemy combatant”).
Editorial, Stuck in Guantanamo, WASH. POST, June 7, 2007, at A26, available at http://
www.washingtonpost.com/wp-dyn/content/article/2007/06/06/AR2007060602302.html.
Consequently, per the Geneva Conventions, Hamdan was entitled to prisoner of war
status. See id; see also William Glaberson, Tribunal Complicates Policy on Detainees;
Guantanamo Judges Dismiss Charges in 2 War-Crimes Cases, INT’L HERALD TRIB.,
June 6, 2007, at 7 (“[Senator Arlen Specter] said it was ‘dead wrong’ for anyone to
assert that Congress intended to permit prosecution of detainees who had not been
declared unlawful enemy combatants.”). This ruling highlighted systemic problems
with the post-9/11 system of detaining and prosecuting suspected terrorists. See id.
(chief military defense lawyer describing the decision as emphasizing a lack of
“international legitimacy and legal authority” of the military commission process); see
also Stuck in Guantanamo, supra (describing possibilities for congressional reform of
tribunal process and mechanisms of judicial review).
The procedural deficiency that prompted this dismissal of charges,
however, is evidently curable by a determination of unlawful enemy combatant
status at the military commission level itself. See Josh White, Court Reverses
Ruling on Detainee, WASH. POST, Sep. 25 2007, at A04, available at http://
www.washingtonpost.com/wp-dyn/content/article/2007/09/24/AR2007092401848.html.
In a related detainee challenge, a military commission review panel ruled “that
[commission] trial judges can hear evidence on a detainee’s combatant status and
therefore can proceed with the trials.” Id. (finding that the trial judge hearing the case
incorrectly “believed he could not make such a determination of ‘unlawful’ status.”).
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SPECIAL CIRCUMSTANCES AND JURISDICTION
One question permeating the Supreme Court’s post-9/11
war-on-terror jurisprudence is the extent to which federal
courts should afford special treatment to detainee challenges
when assessing jurisdictional or other threshold issues. This
section will address a specific subset of this issue: whether the
merits of a detainee challenge or exceptional surrounding
circumstances should be considered in determining whether
the petitioner has satisfied jurisdictional requirements
prerequisite to review on these merits. The considerations
underlying this inquiry relate to those underlying the general
issue of the proper scope of review for detainee challenges, as
well as the more specific issue (addressed in Part III) of the
appropriate temporal vantage point to apply.
Returning to the focus of this section, a circumspect
examination might suggest that even challenges to military
detention by alleged enemy combatants deserve the same
treatment as other challenges to physical custody, as seen in
Rumsfeld v. Padilla.115 Bending, twisting, or overriding
jurisdictional rules to accommodate the resolution of the
profound substantive issues raised by these challenges could
lead to rampant forum shopping and thereby diminish judicial
efficiency.116 Arguably, considerations of judicial economy alone
do not militate against a more flexible jurisdictional treatment
when major personal liberties or even human rights are on the
line. Still, allowing ad hoc exceptions based on the importance
of a case could turn federal courts into arbiters of a largely
normative set of criteria—in short, the public interest.117
In Rasul v. Bush,118 the Court, perhaps searching for
some middle ground, heeded this notion in a technical sense.
But, essentially in defiance of the principle of judicial restraint
(at least as understood by the Padilla Court), the Rasul Court
Pursuant to this authority, in December 2007, a military judge in the Hamdan case
held that Hamdan is an unlawful enemy combatant and is thereby subject to trial by
military commission. United States v. Hamdan, On Reconsideration: Ruling on Motion
to Dismiss for Lack of Jurisdiction (Military Comm’n, Dec. 19, 2007) (Allred, J.),
available at http://www.defenselink.mil/news/Dec2007/Hamdan-Jurisdiction%20After%
20Reconsideration%20Ruling.pdf; Reuters, NYT Bin Laden’s Driver Is Not POW,
Judge Says, Dec. 20, 2007, available at http://www.nytimes.com/reuters/news/newsguantanamo-hamdan.html.
115
116
See infra note 147.
117
118
542 U.S. 466 (2004).
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appeared to justify its far-reaching jurisdictional conclusion
by invoking its perceptions of the substantive worth and
momentous implications of the underlying detainee
challenge.119 It is to a more specific discussion of these cases
that this Note will now turn.
A.
Rumsfeld v. Padilla: Sticking to the Core
1. The General Approach of the Padilla Court
Rumsfeld v. Padilla firmly stands for the proposition
that federal courts generally should not consider special or
extraordinary circumstances surrounding a federal habeas
challenge when determining jurisdictional standing, even of
alleged enemy combatants detained outside the civilian
criminal system.120 The general approach that the Padilla
Court advocated instead may be described as follows: whenever
possible (as opposed to when subjectively preferable), a
reviewing court should analyze a habeas challenge in
accordance with rigid jurisdictional rules derived from the
relevant habeas statute.121 To elaborate, if the dispute at the
most reduced factual level, without regard to the equities of the
case, admits to reasonable interpretation within the traditional
habeas analysis, then its resolution should proceed accordingly.
The presence of amenable circumstances, rather than the
absence of any unusual factors, thus determines the outcome.122
Departures from this established framework should occur only
in response to factual incompatibilities between present
circumstances and the core assumptions—particularly, present
physical custody in the United States—that informed the
development of the old rules.123
119
Rumsfeld v. Padilla, 542 U.S. 426, 447-50 (2004).
121
See id.
122
See id. at 449-50.
123
See id. at 435-36. Exceptions to traditional jurisdictional requirements
potentially could be warranted where the habeas petitioner challenged something other
than present physical custody, such as reservist status in the armed forces, id. at 43839, 449-50, or a term of imprisonment that had not yet commenced, id. at 438-39, or
where the petitioner, assuming that he was a citizen, was held outside of the United
States. Id. at 435 n.8, 447 n.16. Deviations likewise could be supported where the
location of the detainee or the identity of his custodian was unknown, id. at 450 n.18,
or where the government relocated a detainee following a proper filing of his petition.
Id. at 440-41. Perhaps even government impropriety, under certain circumstances,
could justify a departure from the strict jurisdictional rules. See id. at 449 n.17; see also
infra note 137 and accompanying text. The Court stressed, however, that the existence
120
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2. Application of the Traditional Habeas Paradigm to
the facts of Padilla
Applying the foregoing logic to the specific dispute, the
Padilla Court declined to make exceptions to strict, statutorily
derived jurisdictional rules due to any “undeniably unique”
circumstances surrounding Padilla’s military detention.124
These circumstances generally pertained to the war-on-terror
context in which Padilla’s detention arose.125 The Court
similarly
refused
to
overlook
traditional
threshold
requirements in order to accommodate the profound securityversus-liberty debate embodied by this detainee challenge.126 As
the Court reasoned, the outcome of the jurisdictional dispute
should be controlled not by the relative equities, but by more
objectively grounded criteria.127
Directing the jurisdictional inquiry accordingly, the
dispute found immediate disposition within the traditional
habeas framework.128 This conclusion obtained despite the
rapid and ex parte nature of Padilla’s removal from the civilian
criminal system and despite the arguably unprecedented
personal involvement of the Secretary of Defense in relocating
an American citizen from civilian to military confinement.129
Padilla had challenged his present physical confinement, the
location of which was known and was obviously within the
United States.130 The identity of Padilla’s immediate custodian,
Commander Marr, the person who exercised actual day-to-day
control over Padilla, likewise had been revealed.131 Moreover,
the relocation of Padilla to a military facility, although
government-induced, occurred prior to, not following, the filing
of the habeas petition.132 Thus, despite the presence of atypical
of certain jurisprudential exceptions to strict, statutorily derived jurisdictional rules
did not detract from the otherwise applicability of these rules to core challenges like
Padilla’s, where none of the above potential reasons for departure were present. See
Padilla, 542 U.S. at 446-47; see also infra notes 128-133 and accompanying text.
124
See Padilla, 542 U.S. 426, 441 (2004); supra notes 45-48 and accompanying
text.
125
See Padilla, 542 U.S. at 437-38, 441, 447-51.
126
See id. at 450-51.
127
See id. at 441.
128
Id.
129
See id. at 440 n.13, 448-49.
130
Id. at 441, 446; see also id. at 450, n.18.
131
Id. at 450 n.18.
132
Id. at 431-32.
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factors, the case ultimately broke down into the usual
elements.133
The Court further reinforced the factual and subjective
distinctions of the traditional habeas paradigm when
addressing the issue of alleged government impropriety.134 In
his dissenting opinion, Justice Stevens suggested that the
Court should proceed as if Padilla’s counsel had filed the
petition before the removal of Padilla from the Southern
District of New York—especially when considering that the
government had quietly, if not secretly, conducted the
relocation process and had not provided Padilla’s counsel with
sufficient notice of its intentions.135 But a majority of the Court
chose not to “indulge” this equity-driven legal fiction, viewing it
as incompatible with the facts-based traditional approach to
which the Court instead subscribed.136
Still, the Padilla Court hinted, albeit in dictum in a
footnote, that greater flexibility could have been accorded to
the jurisdictional rules if the evidentiary record had clearly
established that the government purposely “shrouded . . . in
secrecy” the relocation process or intended to deceive Padilla’s
counsel about his client’s whereabouts.137 In any event,
according to the Court, Padilla’s counsel at the time of filing
apparently knew, even if only from media sources, about
Padilla’s removal from the Southern District.138 That the
Padilla Court considered information obtained in this indirect
manner and from a non-governmental source as sufficient
notice exemplifies this Court’s manner of disregarding
normative viewpoints in arriving at threshold conclusions.139
Much as the Court considered it more significant that
Commander Marr exerted immediate control over Padilla than
that Secretary Rumsfeld had exercised substantial control over
the relocation process, the fact that Padilla’s counsel knew
about the relocation prior to filing the habeas petition carried
133
See id. at 441.
See id. at 448-49.
135
See id. at 458-59 (Stevens, J., dissenting).
136
See id. at 448-49 (majority opinion). The relative insularity of the Padilla
Court’s approach bears some resemblance to the temporally restricted, present vantage
point approach later advanced by a plurality in Hamdi v. Rumsfeld. See infra Part
III.A. Yet it contrasts sharply with that in Rasul v. Bush and Hamdan v. Rumsfeld. See
infra Part III.B.
137
See Padilla, 542 U.S. at 449 n.17 (citing Padilla, 542 U.S. at 459 n.3
(Stevens, J., dissenting)).
138
See id. at 449 n.17; see also id. at 459 n.3 (Stevens, J., dissenting).
139
See id. at 449 n.17 (majority opinion).
134
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greater legal relevance than the question of how counsel
learned (or did not learn) about the relocation.
3. Rationales of the Padilla Court: Advocating a
Position of Restraint
As demonstrated by the application of the traditional
habeas framework to the specific question presented in Padilla,
the Padilla Court called for a relatively strict separation
between the jurisdictional and substantive elements of a
habeas petition. The Court refused to deviate from the
jurisdictional conventions of habeas corpus just because the
merits of the case were extraordinary in nature.140 Instead, to
contain the sort of merits- or dicta-creep evident in the
dissenting opinion,141 the Court broadly defined core habeas
challenges.142 This definition includes any case that sensibly
can be resolved in accordance with traditional threshold
requirements. Even cases involving U.S. citizens subject to
military detainment as part of the war against terror feasibly
could be considered run of the mill, at least insofar as
jurisdiction is concerned.143 Thereby, in the majority of cases,
the relative equities would not come into play until formal
consideration of the merits.
A more liberal alternative, or a position of less judicial
restraint, as espoused by the dissent,144 would force district
140
See id. at 447-51.
See infra note 144 and accompanying text. This dissent was a preview for
the majority opinion to come in Rasul v. Bush. See infra Part II.B.
142
143
See id. at 450-51.
144
The dissenting opinion, authored by Justice Stevens, resoundingly
disagreed with the majority with respect to the role that the extraordinary
circumstances surrounding this case should play in determining Padilla’s jurisdictional
standing. See id. at 465 (Stevens, J., dissenting). The dissent described, in particular,
how the unprecedented personal involvement of the Secretary of Defense in overseeing
the removal of Padilla from the civilian criminal system posed “a unique . . . threat to
the freedom of every American citizen.” Id. at 461. More generally, this case presented
a profound debate between personal liberties and national securities. Id. at 465. The
dissent further commented on the dangerous situation presented when a democracy
resorts to major breaches of basic personal liberties in order to maintain national
security. See id. Overcoming the “forces of tyranny” requires continual adherence by
the government to the fundamental values represented by the American flag. Id. In
light of the exceptionality of this case, the Court had an affirmative duty to review the
case on the merits, regardless of the ultimate determination at this level. Id. at 465.
“Special treatment,” as opposed to strict adherence to formalistic rules, thus was
warranted at least at the threshold jurisdictional level. Id. at 460; see also Padilla v.
Hanft, 547 U.S. 1062, 1064 (2006) (Ginsburg, J., dissenting from denial of certiorari)
(noting that the substantive question raised in Rumsfeld v. Padilla—whether the
141
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courts to make “ad hoc determinations as to whether the
circumstances of a given case are exceptional, special, or
unusual enough to require departure from the jurisdictional
rules [the] Court has consistently applied.”145 Bending these
rules in order to facilitate discussion of the controversies
engendered by this case would, if anything, cause further
uncertainty regarding the war on terror, or so the majority
seemed to imply.146 In sum, prudential considerations prevailed
over equitable considerations of jurisdiction for war-on-terror
habeas challenges, where the jurisdictional issues could be
feasibly resolved within the traditional paradigm.147
B.
Rasul v. Bush: Veiled Judicial Activism
1. The General Approach of the Rasul Court
In Rasul v. Bush, the Court at least tacitly condoned
appealing to the merits of a detainee challenge as a means of
enhancing statutorily derived jurisdictional conclusions.148 The
Rasul Court, unlike the Padilla Court, effectively conflated the
jurisdictional and substantive components of the habeas
challenge with which it was presented.149 But rather than
disclaiming outright the sort of prudential considerations (and
corresponding winnowing-down approach) advanced in
“President ha[d] authority to imprison indefinitely a United States citizen arrested on
United States soil distant from a zone of combat, based on an Executive declaration
that the citizen was, at the time of his arrest, an enemy combatant . . . [was] a question
the Court heard, and should have decided, two years ago”). But see Fallon & Meltzer,
supra note 58, at 2052-53 (arguing that the jurisdictional factors in Padilla were “close
to equipoise” when “taken in isolation”; considering this and that at least some of the
Justices who joined the majority may have disagreed with the illegality of Padilla’s
detention, “postponing resolution” on the matter was not inconsistent with a sensible,
“common law” approach to habeas jurisdiction).
145
See Padilla, 542 U.S. at 450 (majority opinion) (internal quotations
omitted).
146
147
The Court also emphasized that the traditional jurisdictional rules “serve[]
the important purpose of preventing forum shopping by habeas petitioners.” Id. at 447.
In the absence of these rules, “a prisoner could name a high-level supervisory official as
respondent and then sue that person wherever he is amenable to long-arm jurisdiction.
The result would be rampant forum shopping, district courts with overlapping
jurisdiction, and the very inconvenience, expense, and embarrassment Congress [had]
sought to avoid” through its design of the federal habeas statute. Id. (referring to 28
U.S.C. § 2241).
148
See infra Part II.B.2.
149
Recall that Padilla strongly advised against such blending together, even
with respect to challenges by suspected terrorists. See supra Part II.A.
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Padilla,150 the Rasul Court proceeded more obliquely. On the
one hand, the Rasul Court proclaimed to subscribe to a strict
mode of statutory construction, much as did the Padilla
Court.151 On the other hand, unlike in Padilla, the Court in
several instances incorporated into its analysis (albeit
indirectly) factors relating to the merits of the detainee
challenge.152 Due to these competing observations, it is difficult
to discern from Rasul’s specific resolution any coherent
message regarding special considerations and jurisdictional
standing. If the Court’s tortuous analysis could be broken down
into distinct tiers, it could be said that, first, formal statutory
conclusions were made and, second, these conclusions were
defended via the substantive attributes of the case. The net
result was a form of judicial activism that, despite its subtle
implementation, had far-reaching consequences.153
2. Incorporating the Merits into the Specific Resolution
of Rasul
The Rasul Court, notwithstanding its purportedly
narrow approach,154 supported its formal jurisdictional holding
150
See supra Part II.A.
Rasul v. Bush, 542 U.S. 466, 478-79, 483-84 (2004).
152
See infra Part II.B.2; see also Pope, supra note 58, at 26-27 (describing
Justice Scalia’s dissent in Rasul). As described by Pope:
151
In a biting dissent, Justice Scalia argued that the Rasul majority had done
great violence both to the habeas statute and to the Eisentrager decision . . .
[which, in his view] did pass judgment on whether the habeas statute
granted jurisdiction over the claims of foreign nationals held outside the
United States. He asserted that the brevity of the Eisentrager court’s analysis
signified that it was nothing more than an axiomatic proposition that the
statute failed to reach the Eisentrager detainees. Accordingly, in his view, the
[Rasul] Court had completely recast precedent in order to reach a more
palatable result while at the same time appearing to give due deference to
precedent. This jurisprudence, he argued, was an example of “judicial
adventurism of the worst sort.”
Id. at 26-27 (emphasis added) (citing Rasul, 542 U.S. at 488, 490, 493, 506 (Scalia, J.,
dissenting)) (criticizing the majority’s “clumsy, countertextual reinterpretation” of the
habeas statute and attendant precedent as a wholesale “departure from . . . stare
decisis”).
153
See supra notes 58, 61 and accompanying text. For a principled defense of
Rasul, despite its “shortcomings in explanation,” see generally Fallon & Meltzer, supra
note 58. Fallon & Meltzer argue that the “specific outcome seems entirely plausible . . .
within the Common Law Model [of habeas corpus jurisdiction], based on the special
status of Guantánamo Bay,” over which the United States exercises complete control
pursuant to a lease agreement. Id. at 2059-60. Moreover, this “modest extension of
jurisdiction avoided or at least postponed a welter of [constitutional] difficulties.” Id.
154
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by referencing the special circumstances that essentially
formed the substantive basis of the petitioners’ challenge.
Factors affecting the merits of the case included that the Rasul
petitioners (while denying the government’s allegations) had
been detained for over two years in territory subject to the
exclusive control and jurisdiction of the United States without
having received access to counsel and without having been
charged with any crime.155 The Court concluded, however,
that the narrow and sole issue in this case—whether “United
States courts lack jurisdiction to consider challenges to the
legality of the detention of foreign nationals captured abroad
in connection with hostilities and incarcerated at the
Guantanamo Bay Naval Base”156—could be resolved readily
and solely under the federal habeas statutory framework (that
is, without resort to constitutional fundamentals),157 and hence
in a single tier of analysis. Nonetheless, the manner by which
the Court referred to the merits of the case, and ascribed
significance to them, suggests an additional tier of analysis
going well beyond any clear-cut statutory considerations.
The Court first alluded to the circumstances
surrounding the confinement of the Rasul detainees when
distinguishing this case from Johnson v. Eisentrager on
apparently constitutional grounds.158 But the Court
subsequently concluded that resolving the present dispute did
not require making this merits-based distinction, given that it
did not bear directly, or even indirectly, on the question of
statutory habeas jurisdiction and given that Eisentrager did
not bar review of the Rasul detainees’ challenge under the
federal habeas statute.159 The prominent inclusion of this
distinction begs the question of the Court’s purpose; whatever
relevance these circumstances had to this case, the Court failed
to explain why it introduced them in that particular context
and manner. If the Court had sought only to make an
additional point apart from its specific legal conclusion, then
surely it could have delineated this purpose more clearly.
Instead, this statement tends to refute the Court’s
155
Rasul, 542 U.S. at 483 n.15 (2004).
Id. at 470. But see infra notes 166-168 and accompanying text.
157
158
See Johnson v. Eisentrager 339 U.S. 763 (1950); supra notes 62-65 and
accompanying text.
159
156
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proclamations of narrow judicial review devoid of any
consideration of the merits.160
Later in the opinion, as the Court directly recited the
seemingly ultimate conclusion of the case,161 an accompanying
footnote stated that the petitioners’ allegations, if true, would
“unquestionably” demonstrate the illegality of their
confinement.162 Indeed, this statement pertained to pleading
requirements (as opposed to the question of the appropriate
forum or court) and appeared outside of the main body of the
opinion.163 Still, the Court seemed to invoke the substance of
the petitioners’ challenge in order to reinforce its formal
statutory conclusion, especially when viewing the footnote
statement alongside the earlier treatment of the merits of the
case vis-à-vis Eisentrager.164 Further supporting this assertion
is the statement’s textual proximity to the formal statutory
conclusion of the case. Pleading requirements, moreover, were
not even at issue.165
The Court, in a last-ditch effort to infuse viability into
its formal holding, restated the issue of the case in the final
paragraph of the opinion as follows: “[w]hat is presently at
stake is only whether the federal courts have jurisdiction to
determine the legality of the Executive’s potentially indefinite
detention of individuals who claim to be wholly innocent of
wrongdoing.”166 While not unreasonable to expect a bold dictum
in the concluding paragraph of a high-profile, politically
charged case such as this, the Court proceeded as if it were
simply restating the exclusive issue.167 But even assuming that
the emphasized phrase in the Court’s statement did validly
160
162
Rasul, 542 U.S. at 483 n.15 (citing 28 U.S.C. § 2241(c)(3)) (“Petitioners’
allegations—that, although they have engaged neither in combat nor in acts of
terrorism against the United States, they have been held in executive detention for
more than two years in territory subject to the long-term, exclusive jurisdiction and
control of the United States, without access to counsel and without being charged with
any wrongdoing—unquestionably describe ‘custody in violation of the Constitution or
laws or treaties of the United States.’”).
163
See id.
164
165
166
Rasul, 542 U.S. at 485 (emphasis added); see also id. at 475 (“The question
now before us is whether the habeas statute confers a right to judicial review of the
legality of Executive detention of aliens in a territory over which the United States
exercises plenary and exclusive jurisdiction, but not ultimate sovereignty.” (internal
quotation marks omitted)).
167
161
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relate to pleading requirements, this statement did not simply
restate an issue dealing solely with statutorily conferred
jurisdiction. To the contrary, the merits of the case crept into
and served to justify the statutory findings.168
168
Contrast the Rasul Court’s approach with that advanced by Justice
Kennedy in his concurring opinion. Rasul, 542 U.S. at 485-88 (Kennedy, J.,
concurring). Unlike the majority opinion, Kennedy directly viewed the particular case
“against the backdrop of the constitutional command of the separation of powers” in
resolving the jurisdictional issue. Id. at 485-86. One special circumstance militating in
favor of finding that district courts have jurisdiction to hear these claims was that the
petitioners were being held in an area over which the United States exercised exclusive
and plenary control. Id. at 487. Another critical factor was that the petitioners were
being held in “indefinite pretrial detention” when it was not clear that such prolonged
detention was justified by military exigency. Id. at 488.
Kennedy concluded that although “detention without proceedings or trial
would be justified by military necessity for a matter of weeks,” the rationale for
prolonged detention due to military exigency loses strength “as the period of detention
stretches from months to years.” Id. A case-specific approach, according to Kennedy,
would have avoided the dramatic effect of the majority opinion, which he interpreted as
granting an automatic right to statutory habeas jurisdiction to persons detained
outside of the United States. Id.
It is worth noting, in the context of judicial decision-making, the
connection between the particular legal lens (constitutional, legislative, or even
international) through which a detainee challenge is viewed and the perceived scope or
consequences of the resolution. As Rotunda points out, “[c]onstitutional rulings cannot
be overturned by mere legislation,” but “Congress, if it chose to do so, could amend the
[habeas] statute and go back to the world before the Supreme Court reinterpreted it.”
Rotunda, supra note 44, at 48. It thus may seem strange that Justice Kennedy
lamented the tremendous effects of the Rasul majority’s statutory-based conclusion,
despite the ready possibility of congressional reaction and correction, and instead
promoted a constitutionally oriented approach. Perhaps this can be reconciled on the
basis that Kennedy’s balancing test would be very fact specific and therefore avoid or
delay creating immutable legal principles.
Kennedy, in any event, did seem to proceed in a more open and honest
fashion than the Rasul majority, and his approach would produce, in at least one
important respect, less drastic results than that adopted by the majority. Nonetheless,
it is difficult to square the Kennedy approach with that of Padilla, which admonished
against making ad hoc determinations about the exceptionality or uniqueness of a
detainee challenge when resolving jurisdictional issues. See supra Part II.A.3; see also
Rasul, 542 U.S. at 496 n.4 (Scalia, J., dissenting) (criticizing Kennedy’s balancing test
approach for “provid[ing] enticing law-school-exam imponderables in an area where
certainty is called for”). Justice Scalia noted that under the ad hoc test espoused by
Kennedy, “courts would always have authority to inquire into circumstances of
confinement,” when making jurisdictional determinations. Id. Among the questions
reviewing courts would have to address are “When does definite detention become
indefinite?” and “How much [judicial] process will suffice to stave off jurisdiction?” Id.
These criticisms in a more general sense could also describe the approach
of the Rasul majority, which, as described in this subsection, appeared to commingle
jurisdictional and substantive considerations.
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3. Rasul’s Incompatibility with Padilla
As described above, the Rasul Court surreptitiously
evaded a path of judicial restraint.169 Rasul, however, did not
explicitly redefine core habeas petitions, as they had been
defined in Padilla, to categorically exclude detainee challenges
characterized by extraordinary circumstances or great legal
uncertainty.170 Moreover, the oblique connection drawn between
special circumstances and jurisdictional standing might seem
to produce only indirect effects—serving, in other words, to
strengthen or buttress the formal statutory holding. Yet, in
light of Rasul’s mixed messages, it is difficult to assess the
stand-alone power of the formal holding. More specifically, the
merit-based considerations cannot easily be parsed from the
purportedly strict determinations underlying the technical
legal conclusions.171 Overall, the zigzagging path of Rasul
evades meaningful reconciliation with that of the more
straightforward Padilla.
Rasul also deviated from the specific rationales
underlying Padilla, including preventing case-by-case determinations by federal courts as to whether the circumstances
surrounding a detainee challenge are sufficiently exceptional to
warrant digressions from traditional jurisdictional rules.172 A
reviewing court indeed would avoid making such ad hoc
conclusions in the first or primary tier of analysis (which,
again, was the only level of analysis explicitly undertaken by
the Rasul Court), assuming that this analysis entailed only
strict statutory considerations. But the second or supplemental
tier of analysis (which was effectively undertaken by the Rasul
Court, its denials notwithstanding173) would essentially require
assessing the merits of a habeas challenge to determine
whether they are special enough, or bear on adequately
important liberty interests, to justify the first-tier conclusions.
Yet in actual cases this two-tiered approach would
not be applied as neatly as has been described here,
considering that it was not directly enunciated but rather
implied by Rasul’s obscure reasoning. In practice, the two
levels of analysis cannot be meaningfully differentiated and
169
170
171
172
173
See supra Part II.B.1.
See supra Part II.A.3.
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677
basically would occur simultaneously. Regardless of the exact
description befitting the Rasul approach, the point remains
that this approach may condone, at least tacitly, a level of
complex judicial determination that transcends the rigid limits
envisioned by Padilla, its more level-headed sister case.174
Applying this convoluted style may decrease indeterminably
the level of restraint exercised by a reviewing court because the
extent of change will not be ascertainable amidst the fuzzy
reasoning.
C.
The Resultant Shaky Line of Precedent
Viewed together, Rumsfeld v. Padilla and Rasul v. Bush
provide little coherent guidance on the subject of special
circumstances and jurisdictional standing. Given their
antagonisms, this pair of cases set the foundation soon after
9/11 for an unstable line of precedent. In Padilla, the Supreme
Court applied strict statutory analysis to arrive at its formal
jurisdictional conclusion.175 By contrast, in Rasul, the Court
only superficially refrained from considering the merits or the
exceptional surrounding circumstances of its corresponding
detainee challenge.176 Consequently, Rasul added a layer of
perplexity to the Supreme Court’s post-9/11 war-on-terror
jurisprudence and, in doing so, increased the general tension
that already engulfed the topic.
The refusal by a plurality of the Court in Hamdi v.
Rumsfeld to review an issue on the basis of a future prospect
(despite its likelihood of occurrence)177 perhaps to some extent
mitigates the influence of Rasul and, alongside Padilla,
reinforces a basic message of restraint. Still, Hamdi could not
fully overshadow the more expansive analytical framework
adopted in Rasul and, most recently, in Hamdan v. Rumsfeld.178
Nor could Hamdi and Padilla, in combined force, mask the
overall instability of the jurisprudence.
174
175
176
177
178
See supra Part II.A & B.2.
See supra Part II.B.2 & B.3.
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SPECIAL CONSIDERATIONS AND ANTICIPATORY REVIEW
Another significant feature of the Supreme Court’s post9/11 war-on-terror jurisprudence has been the issue of whether
federal courts should review detainee challenges that are based
in substantial part on future prospects or anticipated events.
The question, in other words, is whether such claims are ripe
for review given the current factual and legal climates and in
view of reasonably possible subsequent occurrences. Closely
tied to this inquiry is whether an expedited form of review is
warranted given the important, though still developing,
substantive attributes of a detainee challenge. An affirmative
answer may require courts to make ad hoc determinations
about whether and what types of circumstances qualify as
exceptional—a situation similar to that disfavored by Rumsfeld
v. Padilla with respect to jurisdictional standing.179 This same
answer may also necessitate a certain degree of judicial
guesswork in regard to expected factual as well as legal
developments, which may be viewed as a lack of restraint, at
least in a temporal sense.
This sort of prospective temporal vantage point, given
its relative uncertainty, was viewed with caution by the
plurality opinion in Hamdi v. Rumsfeld.180 Legal constructs (at
least in the context of detainee challenges), the plurality
implied, should develop in tandem with, not in anticipation of,
events and circumstances.181 In Hamdan v. Rumsfeld, by
contrast, the Court demonstrated a willingness to review the
legality of government actions before they fully occurred, where
there were sufficiently grounded reasons to presume the
illegality of such actions and where major liberty interests or
traditional judicial protections were at stake.182 At a minimum,
Hamdan suggested that the importance of a dispute, even
when not finalized, may override considerations of deference to
the executive branch.183 This section will examine these cases
individually as well as in contrast to each other and in relation
to Padilla and Rasul.
179
180
181
182
183
See infra Part III.B.2.a.
2008]
A.
Hamdi v. Rumsfeld: “Temporal” Deference
679
1. The General Approach of the Hamdi Plurality
In a manner comparable to the winnowing-down
approach endorsed by Padilla v. Rumsfeld,184 the plurality in
Hamdi v. Rumsfeld perceived substantive issues related to the
legality of detention (as distinct from the level of judicial
process owed to detainees) from a narrow, temporally restricted
vantage point.185 The plurality supported the following
approach: whenever practicable—as opposed to when
normatively preferable—the resolution of the substantive
issues of a detainee challenge should turn on the circumstances
of confinement as they present themselves at the time of
judicial review, and not on speculations, even if fairly
reasonable, about future scenarios.186 A dispute likewise should
184
See infra Part III.A.2.
186
Compare this approach to that employed by Justice Kennedy in Padilla v.
Hanft, 547 U.S. 1062, 1062-64 (2006) (Kennedy, J., concurring in denial of certiorari),
where the Supreme Court declined to grant certiorari to review the claims of the
successor case to Rumsfeld v. Padilla, 542 U.S. 426 (2004). See Padilla v. Hanft, 547
U.S. at 1063. As described by Justice Kennedy, these claims were now premised on
hypothetical scenarios. See id. (Kennedy, J., concurring in denial of certiorari).
Regardless of whether Padilla’s claims were mooted by the fact that he had received
the principal relief that he had sought, “prudential considerations” militated against
reviewing Padilla’s claims when the relief sought would have no practical effect unless
the government proceeded to remove him, once again, from the civilian criminal
system. See id. Review thus was not justified where Padilla’s return to military custody
remained a possibility but was not an actual reality. See id. But see Rotunda, supra
note 44, at 42 (arguing that “the issue [was] simply not moot” given that, among other
reasons, Padilla could seek damages if he was “held unconstitutionally for the last
several years”).
Still, the perceived threat that his status or the circumstances of his
confinement could be changed yet again by the government warranted an expedited
review by the district court overseeing Padilla’s case, in the event that such threat was
realized. See Padilla v. Hanft, 547 U.S. at 1064. Because Padilla was receiving the
relief he had sought and because he was not contesting the lawfulness of his civilian
detention, resolving the current dispute (as presented by Padilla in his writ of
certiorari) perhaps required nothing more than for the district court to remain alert
and attuned to change. See id. By this reasoning, a federal court could defensively
anticipate future governmental abuses when there is a reasonable prospect of their
occurrence, but could not respond preemptively.
Contrast Justice Kennedy’s reasoning here, id. at 1062-64, as well as that
of the plurality in Hamdi, Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (O’Connor, J.,
plurality opinion), with the dissent of Justice Breyer in Boumediene, Boumediene v.
Bush, 127 S. Ct. 1478, 1479-81 (April 2, 2007) (Breyer, J., dissenting from the denial of
certiorari), vacated, 127 S. Ct. 3078 (June 29, 2007) (granting certiorari); see also supra
note 104. Citing Hamdan, Breyer explained why the Court should not refrain from
hearing a consolidated set of detainee challenges even if available remedies have not
yet been exhausted:
185
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be resolved in accordance with legal principles as
conventionally understood, rather than how these principles
might eventually change to adapt to new factual landscapes,
such as major military or political developments spurred by the
war on terror.187 Disposition outside of this traditional law-ofwar paradigm thus may be appropriate when (but not until)
circumstances have altered such that they are incompatible
with the expectations that informed the existing legal
framework, in particular that a war will not endure
perpetually.188
2. Application of the Restricted Temporal Vantage
Point to the Facts of Hamdi
Applying the foregoing logic to the specific context in
Hamdi, the plurality assessed from a present factual and legal
perspective whether the AUMF had authorized the detention of
an alleged enemy combatant held outside the civilian criminal
system and who had not been charged with any crimes.189 The
plurality, accordingly, did not consider the possibility, though
not “far-fetched,” that Hamdi’s detention might last
perpetually (that is, for the detainee’s entire life), rather than
just indefinitely (that is, for an uncertain period of time).190 The
plurality similarly declined to adjudge the present dispute in
accordance with some hypothetical legal rubric under which
the law of war had evolved to accommodate the yet unrealized
prospect of perpetual detention.191 Invoking a sense of
Here, as in Hamdan, petitioners argue that the tribunals to which they have
already been subjected were infirm (by, inter alia, denying Petitioners
counsel and access to evidence). Here, as in Hamdan, petitioners assert that
these procedural infirmities cannot be corrected by review under the DTA
which provides for no augmentation of the record on appeal and, as noted
above, will provide no remedy for any constitutional violation. Here, as in
Hamdan, petitioners have a compelling interest in assuring in advance that
the procedures to which they are subject are lawful.
Boumediene, 127 S. Ct. at 1481 (citations omitted). Finally, Breyer noted that “here,
unlike Hamdan, the military tribunals in Guantanamo have completed their
work . . . .” Id. (emphasis in original). With this last statement (especially when read in
light of Part II of the concurrence), Breyer seems to imply that if expedited review were
warranted in Hamdan, then, a fortiori, so too would it be here. See id.
187
See infra Part III.A.2.
188
See Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (O’Connor, J., plurality
opinion).
189
Hamdi, 542 U.S. at 516-24 (O’Connor, J., plurality opinion).
190
See id. at 519-20.
191
See id. at 521; infra notes 203-204 and accompanying text.
2008]
681
uncertainty regarding both factual and legal developments, the
plurality thus avoided reviewing the legality of a current
situation in light of unknown future scenarios.
In considering whether the AUMF had authorized the
detention of alleged enemy combatants who had been captured
abroad during hostilities, the plurality distinguished, as a
factual matter, between indefinite and perpetual detention.192
The plurality recognized that longstanding law-of-war
principles permit the detention of enemy combatants for the
duration of hostilities but no longer.193 Hence, although Hamdi’s
detention was indefinite, it was limited definitively by the
happening of a particular occasion—the endpoint of
hostilities.194 But the plurality also realized that, due to the
“unconventional” nature of the war on terror and the
corresponding possibility that the constituent conflicts could
last for multiple generations, there was a reasonable prospect
of effectively permanent detention (which, in terms of duration,
rose beyond the level of mere uncertainty).195
Nonetheless, the plurality did not deem this
indefinite/perpetual distinction relevant to evaluating the
legality of Hamdi’s detention under matters as they currently
stood. The “necessary and appropriate force” authorized by the
AUMF, according to the plurality, fundamentally included the
traditional law-of-war principle mentioned above.196 Therefore,
so long as active combat persisted in Afghanistan, as was the
case when the Court reviewed Hamdi’s habeas petition,197
durational indefiniteness did not strip a detention of its
legality.198 By that same measure, the prospect of a detention
192
Hamdi, 542 U.S. at 521; see also supra note 190 and accompanying text.
Hamdi, 542 U.S. at 518-20 (O’Connor, J., plurality opinion).
194
See id. at 520; see also Rotunda, supra note 44, at 31 (noting that “history
did not give the ‘Thirty Years War’ that label on year one, or even year 29” and that
“the ‘Seven Years War,’ or the ‘Seven Days War’ are names that the historians gave to
these wars after they ended, not when they started”). The foregoing assertion rests on
the assumption that the government would actually comply with the law of war.
195
Hamdi, 542 U.S. at 519-20 (2004) (O’Connor, J., plurality opinion); see also
Fallon & Meltzer, supra note 57, at 2077 (arguing that the notion of executive
aggrandizement “acquires enhanced resonance when one imagines that an
extraordinary, emergency-based validation of executive detentions might endure
throughout a metaphorical war with no currently imaginable end”) (emphasis added).
196
See Hamdi, 542 U.S. at 518-19 (“Because detention to prevent a
combatant’s return to the battlefield is a fundamental incident of waging war . . .,
Congress has clearly and unmistakably authorized detention in the narrow
circumstances considered here.”).
197
See infra note 200 and accompanying text.
198
See Hamdi, 542 U.S. at 521 (O’Connor, J., plurality opinion).
193
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enduring in perpetuity did not fall outside the scope of
authorization provided by the AUMF.199
Regardless of the probability that Hamdi’s detention
would last decades or beyond, the fact is that over 13,000 U.S.
troops remained in Afghanistan at the time of the Court’s
review.200 This substantial, active military presence easily
satisfies the definition of hostilities under the traditional law of
war.201 It follows that Hamdi’s detention, within the proper
scope of the AUMF, could be directly linked to the ongoing
state of conflict.202 In sum, even a detention characterized as
perpetual could be resolved by reference to present
circumstances and in accordance with longstanding law-of-war
principles.
The plurality, however, did suggest that a federal court
might have occasion to reconsider the legal significance of
perpetual and even indefinite detention if the war on terror
proved radically different from the “practical circumstances” on
which traditional law-of-war principles (and, in turn, the
“necessary and appropriate force” provision in the AUMF) were
based.203 But rather than explicitly defining an unprecedented
conflict, the plurality referred to such a conflict by negative
example (that is, in terms of what it was not), using the current
conflict in Afghanistan as an illustration.204
Again, despite the unconventionality of the conflict in
Afghanistan and despite the likelihood of the lifelong
confinement of at least some of the persons detained, the
plurality firmly held that this conflict should be categorized
within the conventional law-of-war framework.205 This conflict
seemed traditional not only inasmuch as that the United States
199
See id.
See id. (noting reports of over 13,000, and perhaps as many as 20,000, U.S.
troops in Afghanistan (citing Pamela Constable, U.S. Launches New Operation in
Afghanistan, WASH. POST, Mar. 14, 2004, at A22; General John Abizaid Central
Command Operations Update Briefing, Dept. of Defense, (Apr. 30, 2004), available at
http://www.defenselink.mil/transcripts/2004/tr20040430-1402.html)); see also Rotunda,
supra note 44, at 32 (noting that while it is not clear “when the Afghanistan hostilities .
. . will end,” it is “certain that they have not yet ended” given the continual military
activity).
201
202
See id.
203
See id. (“If the practical circumstances of a given conflict are entirely
unlike those of the conflicts that informed the development of the law of war, that
understanding may unravel. But that is not the situation we face as of this date.”).
204
See id.
205
200
2008]
683
maintained a significant troop presence in Afghanistan,206 but
also in that only a relatively short time had elapsed (less than
three years) since the American invasion commenced.207 As
implied by the plurality, this period was insufficient for the law
of war to have begun to “unravel.”208 It may also be reasonably
surmised from this opinion that the troop level and time period
considerations, when taken together, militated against application of a modified law-of-war framework, even if either
consideration alone might not.209
B.
Hamdan v. Rumsfeld: Anticipatory Review
1. The General Approach of the Hamdan Court
Unlike the plurality in Hamdi v. Rumsfeld, the Court in
Hamdan v. Rumsfeld reviewed the merits of a detainee
challenge notwithstanding that the circumstances at issue had
not yet fully occurred or developed.210 The Hamdan Court
followed an approach less temporally prescribed than that in
Hamdi, whereby the evident strength of the merits of a habeas
petition, or extraordinary surrounding circumstances, could
warrant a “peremptory” review on the merits. If there were a
reasonable basis to presume that the government would not
afford to an alleged enemy combatant traditional legal and
judicial protections, the reviewing federal court could take
preemptive action in the name of the public interest.211
According to the Hamdan Court, the weighty legal questions
presented by the claims at issue justified the extension of an
equitable-like jurisdiction over these claims—or, in a sense,
infused them with ripeness.212 The Court, however, did not
always clearly differentiate between formal threshold
206
Hamdi was decided in June 2004, Hamdi, 542 U.S. at 507, whereas the
United States invasion of Afghanistan commenced in October 2001, President George
W. Bush, Presidential Address to Announce Attacks on Afghanistan (television
broadcast Oct. 7, 2001) (transcript available at http://www.australianpolitics.com/news/
2001/01-10-07.shtml).
208
209
But, as John Yoo notes, the plurality did not actually give “any reason why
[even] after two generations it may be necessary to reconsider the laws of war,” so long
as “American troops remain engaged in combat.” Yoo, supra note 58, at 583.
210
See supra Part III.A.
211
See infra Part III.B.2 Contrast this approach with that employed in
Padilla v. Hanft, 547 U.S. 1062 (2006); see also supra note 186.
212
207
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conclusions and additional non-binding rationales, or between
the former and ultimate substantive conclusions (that is, on the
merits). Instead, as with Rasul, the Hamdan Court seemed to
inject merits and dicta into its preliminary analysis.213
2. Anticipatory Review as Applied to the Specific
Dispute in Hamdan
Applying the approach described above, the Hamdan
Court declined to abstain from reviewing Hamdan’s procedural
challenge to the military commission set to try him in advance
of a final decision by the commission.214 In rebutting the
government’s contention that the Court should decline to
address Hamdan’s procedural challenge even if the Court had
statutory jurisdiction over this challenge, the Court cited
several structural and procedural differences between trial by
military commission and trial by court-martial (and civilian
court, by extension).215 The Court’s conclusion that this
challenge was essentially ripe for review on the merits in part
attested to the substantial likelihood that the commission
procedures would violate the law.216 In other part, the Court
appealed to a sense of uncertainty regarding the fate of
Hamdan and future actions by the commission and executive
branch.217 Plausible grounds existed, in short, for presuming
that Hamdan would be denied traditional legal and judicial
protections. The profound liberty interests ostensibly at stake
supported the extension of jurisdiction over a dispute involving
only partially developed circumstances.218
213
See supra Parts I.D., II.B.
215
See infra Part III.B.2.a-b.
216
See infra Part III.B.2.b.
217
See infra Part III.B.2
218
See supra note 106 and accompanying text. For a discussion of a different
type of “anticipatory” response in the war-on-terror context, see Robert M. Chesney,
Beyond Conspiracy? Anticipatory Prosecution and the Challenge of Unaffiliated
Terrorism, 80 S. CAL. L. REV. 425, 427 (2007) (discussing policy implications of recent
trend of “early stage anticipatory [criminal] prosecution” of suspected terrorists by
federal government). Chesney notes that “military” alternatives to traditional
prosecutorial approaches have become less attractive in light of persistent legal
uncertainty regarding the legality of military detention, related political pressure, and
the Supreme Court’s decision in Hamdan. Id. at 432-33, 433 n.24. The subsequent
passage of the MCA, however, may mitigate the negative influence of that decision. See
supra note 104.
214
2008]
685
a. Structural Deficiencies
In rejecting the argument that abstention was
warranted in light of comity considerations, the Hamdan Court
emphasized the significant structural dissimilarities between
the military commission, a creature of the executive branch,
and court-martial, a congressional creation.219 In particular, the
appeals mechanism of convictions by the commission rests not
with the civilian judges of the U.S. Court of Appeals for the
Armed Forces, as it does with courts-martial, but with a panel
of “military officers designated by the Secretary of Defense,”
review of which panel’s decision can “be had only to the
Secretary of Defense himself, and then, finally, to the
President.”220
This Executive-appointed panel, moreover, had been
formed specifically to review the decisions of commissions set to
try alleged enemy combatants like Hamdan.221 Review of
Hamdan’s procedural challenge thus could be subject to
substantial structural military influence, even if not
deliberately exerted.222
According to the Court, the fact that Hamdan (at least
as matters currently stood) was not automatically entitled to
habeas review by a civilian court under the DTA further
militated against abstention on the basis of inter-court or even
inter-branch comity in this exceptional case.223
The Court preferred to provide a momentously
important, though still developing, case with immediate review
by a civilian court (which, under the circumstances, was the
Supreme Court itself) rather than to defer to an uncertain
review by a civilian court following the outcome of the military
commission or to a potentially compromised executive-branch
219
Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2771 (2006) (citations omitted)
(citing Dept. of Defense Military Comm’n Order No. 1, § 6(H)(4)-(6) (Mar. 21, 2002)
(last amended, as of the time of this case, on Aug. 31, 2005)). The Court noted later in
its opinion that under the DTA the President had full discretion over the timing of the
final decision of the commission. Id. at 2788. In this way, the Hamdan Court, unlike
the Hamdi plurality, considered as legally relevant the prospect of uncertainly
prolonged detention. See supra Part III.A.2.
221
222
See id. at 2771-72.
223
See Hamdan, 126 S. Ct. at 2771. Review of the final decision as such,
under the DTA, would lie at the discretion of the Court of Appeals for the District of
Columbia Circuit. Id.
220
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review.224 In simpler terms, but for the Court’s current review,
Hamdan’s procedural challenge potentially would go unheard
or, alternatively, be heard by a less than impartial body.
The Hamdan Court, as the foregoing discussion
demonstrates, suggests that the military commission
implicated vital issues beyond the specific procedural context of
Hamdan’s challenge,225 including separation of powers and the
availability of structural judicial protections. Whereas the
Padilla Court expansively defined the traditional habeas
framework to include even challenges arising in the war-onterror context so as to reduce the judicial docket,226 the Hamdan
Court narrowly construed the concepts of comity and deference
to expedite judicial review of (still-developing) cases by Article
III courts where the executive branch had attempted to
diminish traditional judicial protections.
Although the Hamdan Court concluded that the
Councilman comity doctrine technically did not apply under
the circumstances,227 it also seemed to conclude that the
important substantive attributes of the case overrode any
consideration of inter-court or inter-branch comity.228 As a
baseline matter, given that Councilman did not apply, the
latter conclusion (regarding the overriding substantive
attributes of the case) probably should be viewed as dictum.
But it is not clear that the formal, technical conclusion has
stand-alone value apart from the substantive attributes of the
case, considering the profound significance ascribed to these
attributes and the manner in which they were emphasized.
Rather, as in Rasul, the Hamdan Court purported to reach a
self-contained, uncomplicated threshold conclusion, but
resorted to the merits of the case to give this formal
determination appreciable value.229
b. Procedural Deficiencies
As described in the preceding subsection, the Court
rejected comity considerations as a reason for abstaining from
reviewing Hamdan’s procedural challenge in advance of a final
224
225
226
227
228
229
See id. at 2771-72.
See infra Part III.B.2.b.
2008]
687
determination by the military commission. The Court, in like
manner, did not abstain from early review on the basis that
there were no grounds for presuming the illegality of the
commission procedures prior to the commencement of
Hamdan’s trial.230 On the contrary, the governing procedures
not only were described with “particularity” in the government
order establishing the commission, but some of them already
had been implemented as of the time of the Court’s review.231
Both Hamdan and the government, the Court concluded, “ha[d]
a compelling interest in knowing in advance whether Hamdan
[could] be tried by a military commission that . . . operate[d]
free from many of the procedural rules prescribed by Congress
for courts-martial—rules intended to safeguard the accused
and ensure the reliability of any conviction.”232
Indeed, Hamdan alleged that he would be and “already
ha[d] been,” excluded from his own trial.233 The Court, in a
sense, justified its anticipatory review of the dispute by virtue
of the premise that the commission procedures had actively
informed the current reality of the case. The circumstances
that Hamdan challenged were not just based on some far-off
possibility (like perpetual detention as understood by the
Hamdi plurality).234
“Another striking feature” of the governing procedures
noted by the Court was the admissibility of any evidence with
probative value, as determined by the presiding officer.235
Admissible evidence could potentially include testimonial
hearsay, unsworn live testimony and statements, as well as
coercively induced evidence.236
These procedural deficiencies can be compared to the
structural deficiencies of the commission’s review process237 to
the extent that both contributed to the one-sidedness of the
military commission in favor of the government. Both types
also widened the degree of separation between the commissions
230
See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2787-88 (2006).
Id. at 2788.
232
Id. at 2772; see also infra note 236 and accompanying text.
233
Hamdan, 126 S. Ct. at 2788. Even though any proceedings closed to
Hamdan would have to be attended by an appointed military counsel, the presiding
officer at his discretion could forbid this counsel from disclosing to Hamdan the events
occurring therein. Id. at 2786.
234
See supra Part III.A.2.
235
236
Id.
237
See supra Part III.B.2.a.
231
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and courts-martial in terms of judicial access and internal
protections.
Yet the Court’s aggressive treatment of the subject of
the presumption of illegality might give a false impression that
deviations in the procedures governing military commissions
from those governing courts-martial were per se illegal. Rather,
the legality of these deviations turned on whether the
procedures governing military commissions and courts-martial
were “uniform insofar as practicable” per the UCMJ.238
Later, in its formal assessments of the merits of
Hamdan’s procedural challenge, the Court concluded that the
government had not satisfied this uniformity requirement
because it had not adequately demonstrated that it would not
have been feasible, due to exigencies arising in the theater of
war, to apply the rules governing trials by courts-martial to
Hamdan’s trial.239 Viewing the concept of military necessity in a
strict logistical (as opposed to strategic) sense,240 the Court
found that it was simply not evident that the government
would suffer any undue hardship by following the traditional
rules regarding the admissibility and authentication of
evidence.241 Similarly, the “jettisoning” of a person’s basic right
to be present at his own trial was not sufficiently tailored to the
threat to national security posed by international terrorism.242
In turn, the Court’s conclusion that grounds existed for
presuming the illegality of the commission procedures
depended on this same basic determination (that the
commission procedures did not comply with the UCMJ
uniformity requirement). To an appreciable (albeit backward)
extent, the Hamdan Court thus incorporated in its analysis the
merits of the case when determining whether to formally
review these very same merits. Stated differently, in a
sequentially reverse process, the Court’s ultimate substantive
holding significantly informed its earlier threshold
determination.
Even if such merits-based review could be justified in
light of Hamdan’s allegation that some of the commission
238
Hamdan, 126 S. Ct. at 2790 (citing 10 U.S.C. § 836(b) (2000) (“All rules
and regulations made under this article shall be uniform insofar as practicable and
shall be reported to Congress”)). But see infra note 244 and accompanying text.
239
Hamdan, 126 S. Ct. at 2792-93.
240
See id. at 2792.
241
See id.
242
See id.
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procedures had already been implemented, the Court did not
proceed to limit its substantive review to only those
procedures.243 Additionally, incorporating the merits of the case
into the threshold determination perhaps could be justified if
the correct application of the UCMJ uniformity test had been
undisputed and unequivocal, which it ostensibly was not, and if
the Court’s interpretation of this test had been devoid of
idiosyncrasy, which it likewise was not.244 It is therefore
difficult to find in Hamdan the sort of meaningful separation
between threshold and substantive considerations that had
been championed by the Court in Padilla.245 It instead appears
that the Hamdan Court, perhaps quietly drawing inspiration
from Rasul, indirectly sanctioned a form of anticipatory review
over the merits of this detainee challenge.246
3. Comparing Hamdan to Hamdi
With respect to the issue of anticipatory review, the
relative expansiveness of the Hamdan approach, as described
above, conflicted in material respects with the more temporally
restricted vantage point employed by the Hamdi plurality.247
Whereas the Hamdi plurality settled for a position of judicial
restraint, the Hamdan Court essentially espoused a breed of
judicial activism. Hamdan, moreover, justified its expeditious
review on the basis of resolving the significant legal
controversies engendered by this case and facilitating closure
on the subject. By contrast, the Hamdi plurality preferred to
243
To the contrary, the Court proceeded to assess the legality of the military
commission as a whole on the basis of select governing procedures. See id. at 2853
(Alito, J., dissenting) (noting that “[i]f Congress enacted a statute requiring the federal
district courts to follow a procedure that is unconstitutional, the statute would be
invalid, but the district courts would not.” By that same logic, even assuming the
impropriety of some of the commission procedures, “the appropriate remedy is to
proscribe the use of those particular procedures, not to outlaw the commission[].”).
244
Substantial disagreement within the Court itself tends to demonstrate that
the uniformity test was far from settled waters. See id. at 2842 (Thomas, J., dissenting)
(“Nothing in the text of Article 36(b) [of the UCMJ] supports the Court’s sweeping
conclusion that it represents an unprecedented congressional effort to change the
nature of military commissions . . . to tribunals that must presumptively function like
courts-martial. . . . The vision of uniformity that motivated the adoption of the
UCMJ . . . is nothing more than uniformity across the separate branches of the armed
services.” (referring to 10 U.S.C. § 836(b))); see also id. at 2852 (Alito, J., dissenting)
(disagreeing with the Court’s holding that the “military commission is ‘illegal,’ because
its procedures allegedly do not comply with 10 U.S.C. § 836”).
245
246
See supra Part II.B.
247
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let matters develop more naturally and not to ascribe legal
significance to presumptions, even if reasonably grounded.
Still, these cases did not flatly contradict each other, and
differing contexts may in part explain any divergence.
Significantly, the Hamdi plurality was confronted with
a prospect (lifelong detention) that, even if reasonably
foreseeable, is subject to innumerable military and political
developments. Reviewing the legality of a detention in light of
this prospect would require a certain degree of prescience,
which arguably fell outside the judiciary’s ordinary sphere of
competence.248 The realization of this prospect, at any rate,
technically would comply with the traditional law of war
insofar as the detention tracked continual hostilities.249 The law
of war could eventually adapt to accommodate novel factual
circumstances, but, again, the plurality could not predict any
such changes with legitimate confidence. For similar reasons,
the Court should not prognosticate with regard to how the law
might respond to reflect these factual developments, including
the effective reality of permanent detention, at least not when
only a relatively short period of time (three years from the
plurality’s vantage point) had elapsed since the relevant
military campaign began.
By contrast, the Hamdan Court stood in a more selfcontained universe, one where the legality of future scenarios
turned predominantly on a previously established set of
written instructions, even some that had already been
implemented. Furthermore, the procedures governing the
military commission, which the government had documented in
248
See Yoo, supra note 58, at 590-601. With specific reference to the war on
terror, Yoo discusses how federal courts, comparatively speaking, are institutionally
incompetent to address foreign policy disputes at both micro and macro levels. See id.
According to Yoo, the judiciary, “[r]ather than ask[ing] itself whether it can balance
security against liberty interests . . . ought to ask itself whether the [political] branches
could strike a better balance based on more informed judgment.” Id. at 601. In a
similar vein, several scholars, including Yoo, have envisioned the judicial/political
power struggle in administrative law (or quasi-administrative law) terms. See, e.g., id.
at 600-01, 601 n.141 (suggesting that federal courts, in contributing to “terrorism
policy . . . might adopt the deference afforded to executive agency decision making
under . . . Chevron” (referring to Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837,
842-43 (1984) (courts should defer to reasonable agency interpretations of facially
ambiguous or inconclusive controlling statutes))); Eric A. Posner and Cass R. Sunstein,
Chevronizing Foreign Relations Law, 116 YALE L.J. 1170, 1178, 1220-26 (2007)
(describing Supreme Court’s failure to apply Chevron-like deference or analysis in both
Hamdi and Hamdan as “a puzzling and important omission”). Indeed, it has become
rather trendy for an article addressing separation of powers and foreign policy issues to
make at least one Chevron reference.
249
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detail, apparently would not comply with the UCMJ (nor the
Geneva Conventions) as matters currently stood.250 The Court,
accordingly, could limit any conjecturing on its part.251 Plus, if
the Court had declined to act when it did, the detainee
Hamdan potentially would have been foreclosed from an
opportunity for a civilian court to review his challenge.252
Reviewing trial procedures for compliance with a statutory
requirement, moreover, arguably fell well within the abilities of
a federal court, even if the government had not yet fully
implemented those procedures.253
But even in light of these contextual differences, Hamdi
and Hamdan at best submit to a partial jurisprudential
reconciliation with regard to the issue of anticipatory review.
In particular, Hamdi restricted its analysis to a traditional,
well-established legal framework,254 whereas Hamdan not only
adopted an evidently controversial interpretation of a
complicated military code, but essentially based this
interpretation on the relative equities of the case.255 The
differences in these cases thus cannot just be rationalized as
that in one case but not the other grounds existed to presume
250
See supra notes 112-114, 238-242 and accompanying text.
Even still, a viable argument can be made against judicial competency in
this area given the inextricable, underlying (or even overlying) foreign policy
considerations. But it is arguable that the Court was at least somewhat more
competent here than in Hamdi—as previously described—within the meaning of
“competency” as understood by John Yoo. See supra note 248.
252
253
Review for compliance with international law perhaps less arguably fell
within this realm, but such review in this case nonetheless would involve an actual
document (i.e., the Geneva Conventions) and thus a relatively self-contained vantage
point from which to proceed.
For an interesting discussion of the litigation strategies employed by
Hamdan’s legal team, see Katyal, supra note 44, at 72-105. For instance, Hamdan’s
legal team, which included Katyal, sought to emphasize in oral arguments before the
Supreme Court that striking down the military commission set to try Hamdan would
only minimally interfere with the Executive Branch, given that no military commission
trials had taken place in over half a century. Id. at 92-93. The Court thus would only be
preserving “the status quo,” id. at 93, which, as a practical matter, is generally an
attractive option. Additionally, Hamdan and similarly situated defendants were being
detained indefinitely, so there would be no major, immediate change in their statuses
resulting from a decision striking down the military commissions. Id. Moreover,
following the Court’s decision, there was always the possibility of congressional (as
opposed to unilateral Executive) endorsement of a military commission scheme. Id. By
contrast, legislative correction of a decision favoring the government would not come
easy due to the likelihood of a presidential veto and the near impossibility of obtaining
a supermajority vote in the “tight political party environment.” Id. at 95. In sum, there
was no compelling reason to find for the government, and not finding for Hamdan could
have detrimental, practically irreversible consequences.
254
255
251
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the illegality of a future scenario. To do so trivializes the
substantively different values and rationales underlying the
respective determinations in these cases.
C.
A Divided Jurisprudence
The major discrepancies between the temporal vantage
points applied by the Hamdi plurality and Hamdan Court
further added to the inconsistencies in the Supreme Court’s
post-9/11 war-on-terror jurisprudence. Viewing these cases in
conjunction with Rumsfeld v. Padilla and Rasul v. Bush, it
becomes apparent that the Court has struggled to determine
the extent to which it should review on the merits detainee
challenges or particular elements thereof. The Padilla Court
and Hamdi plurality selected a relatively narrow framework
and favored the accessible over the distant.256 By contrast, the
Rasul and Hamdan Courts resorted to, or effectively condoned,
the incorporation of more subjective factors into threshold
analyses.257
The overall trend probably leans toward the latter, more
expansive approach, at least when considering the extent to
which the Court in Hamdan, the most recent of these detainee
challenges, appeared to consider the exceptional surrounding
circumstances in assessing whether and to what extent to
review this dispute on the merits. But even if this emerging
trend makes the war-on-terror jurisprudence more predictable
in one sense, it has occurred in a relatively unstable manner.
For this reason it is difficult to extract from these trendsetters
(if Rasul and Hamdan may be labeled as such) any readily
applicable formulas.
CONCLUSION
The Supreme Court’s post-9/11 war-on-terror jurisprudence has been characterized by inconsistencies with regard to
the proper boundary between threshold determinations and the
substantive attributes of a federal detainee challenge, and also
with regard to the appropriate scope of the temporal
perspective from which issues should be assessed. Despite
these general inconsistencies, the emerging trend, as evidenced
by Rasul and Hamdan, has favored affording special treatment
256
257
See supra Parts II.B, III.B.
2008]
693
to detainee challenges at the threshold level in light of the
remarkable surrounding circumstances or the important
security/liberty debate embodied by these cases.258 But
providing such treatment necessarily entails normative
judgment about what constitutes “exceptionality” or
“profundity.”259 To an extent then, the Court has endorsed the
role of federal courts as arbiters of the public interest.
Stated more positively, the Court has placed traditional
legal and judicial guarantees in a higher realm than
considerations of military logistics, even prior to formally
reviewing a detainee challenge on the merits. Yet this
preference too requires making a distinction between actual
exigency and mere strategy. This distinction, furthermore, in
large part turns on the particular circumstances of a detainee
challenge, such as the duration of the detention and the extent
and nature of judicial process afforded to detainees.
Consequently, the important substantive attributes of a
detainee challenge, as perceived by a court, may militate
against a finding of military necessity, even against the
backdrop of the threat of international terrorism.260 From this
same perspective, the major personal liberties implicated by
government action may even demand an expedited meritsbased review.
This author does not doubt the potential societal
significance inherent to detainee challenges arising from the
war on terror. Nonetheless, the Court should scale back the
expansive approach to threshold issues that it adopted in Rasul
and Hamdan. This approach requires, at a preliminary stage,
extensive ad hoc determinations regarding the worth of a case.
The resulting absence of baseline standards contributes to
uncertainty “in an area where certainty is called for.”261
But the current situation may be still trickier than this,
given the relative instability with which the Court, as in Rasul
and Hamdi, has ascribed to an activist position.262 Indirectly
considering the momentousness of a detainee challenge when
determining threshold issues implicates the same basic
problems described above. If anything, the resulting confusion
258
260
261
Rasul v. Bush, 542 U.S. 466, 495 (2004) (Scalia, J., dissenting); see also
supra note 168.
262
259
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reflects the practical difficulty of incorporating special
circumstances into the legal analysis. The terms “merits-creep”
and “dicta-creep” are perhaps overly simplistic, but they
concisely describe certain insidious jurisprudential tendencies.
Clearer judicial analysis in detainee challenges—
without creative synergizing of threshold determinations and
substantive attributes and without conflation of merits and
dicta—may in time obviate and replace the language of “creep.”
Clear statutory language, whose plain meaning avoids
constitutional concerns, could also help undo the damage left
by the Court in the first five years following 9/11. But the
Supreme Court (or, less abstractly, the interpretive methods of
the individual Justices) is not completely beholden to, but
rather to some degree transcends, the particular statutory or
political contexts in which a detainee challenge arises.
Currently on the Court’s war-on-terror, detaineechallenge docket is Boumediene v. Bush.263 Will the Court
turn over a new leaf in the second five years following 9/11,
opting for a more stable course and straightening out the
inconsistencies in the process? Unlike the Court in Hamdan,264
and more like the plurality in Hamdi,265 this author will refrain
from speculating (just yet).
Ari Aranda†
263
This case actually does appear to be correctly poised for a direct
constitutional ruling, see supra note 104, though there are probably different ways in
which such a ruling can be framed. For descriptions of other terrorism-related cases
that the Court has agreed to hear, see Facts on File, Supreme Court; Cases Accepted of
Americans Held in Iraq; Other Developments, WORLD NEWS DIGEST, Dec. 13, 2007.
264
See supra Part III.B.
265
†
J.D. Candidate, 2008, Brooklyn Law School; B.A., Binghamton University,
2005. Mom, I am proud to dedicate this Note to you. I will always be grateful for your
unconditional support.
For the Sake of the Children
A NEW APPROACH TO SECURING
SAME-SEX MARRIAGE RIGHTS?
I.
INTRODUCTION
On October 25, 2006, the Supreme Court of New Jersey
effectively ruled that any law denying homosexual couples
marriage rights granted to heterosexual couples violates the
Equal Protection Clause of the New Jersey State Constitution.1
The court left the legislature with the semantic task of naming
such a legal contract either a “marriage” or a “civil union,”2 but
made clear in a unanimous decision that “committed same-sex
couples must be afforded on equal terms the same rights and
benefits enjoyed by married opposite-sex couples.”3 Despite
stopping short of mandating the title of “marriage” for
homosexual unions,4 the court in Lewis v. Harris forever
altered the landscape of the gay marriage debate by handing
down the first ever unanimous decision for the plaintiff in a
gay marriage case.5 While the court’s resounding unanimity
1
Lewis v. Harris, 908 A.2d 196, 224 (N.J. 2006).
See Tina Kelly, For Gay Couples, Ruling Has a Cash Value, N.Y. TIMES,
October 28, 2006, at B5 (“Gay couples’ rights are less in dispute than a word for
them.”).
3
Lewis, 908 A.2d. at 221.
4
The New Jersey Legislature ultimately chose to implement civil unions,
rather than gay marriage. The new law, effective February 19, 2007, states in part:
2
The Legislature has chosen to establish civil unions by amending the current
marriage statute to include same-sex couples. In doing so, the Legislature is
continuing its longstanding history of insuring equality under the laws for all
New Jersey citizens by providing same-sex couples with the same rights and
benefits as heterosexual couples who choose to marry.
N.J. STAT. ANN. § 37:1-28(f) (2006).
5
All seven justices agreed as to the violation of Equal Protection rights. The
three dissenting justices did not disagree with the majority as to such a violation, but
instead would have gone further, holding that only a state sanctioned institution
termed “marriage” would be sufficient to ensure the fundamental right to marry for
homosexual couples. See Lewis, 908 A.2d at 224-31 (Poritz, J., concurring in the
holding). Not even the Massachusetts court was as definitive, with only a plurality of
that court holding that gay marriage was required under the Massachusetts
Constitution. See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
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was remarkable, perhaps the most fascinating aspect of the
New Jersey decision was the dicta employed by the court in
reaching its landmark decision. Like no other prior case, the
New Jersey Supreme Court focused extensively on the burdens
faced by the children of homosexual couples denied the right to
marry, rather than restricting its analysis to an examination of
the rights withheld from the couples themselves.6
Just three months prior to the Lewis decision, on July 6,
2006, the State of New York’s highest court decided a gay
marriage case of its own and, like its neighbor New Jersey,
spent a considerable amount of time probing the marital
benefits conferred upon children by the institution of
marriage.7 However, New York’s judges undertook this inquiry
with an eye toward an entirely opposite result and held that
“the Legislature could rationally decide that, for the welfare of
children, it is more important to promote stability, and to avoid
instability, in opposite-sex [rather] than in same-sex
relationships.”8 Armed with this analysis, the court ruled that a
law forbidding homosexuals to marry would not offend the
Equal Protection Clause of the New York Constitution when
held up against a rational review standard.9
The significance of these two cases, this Note will
contend, does not lie in their contrasting results, but in their
similar focus—the effects of marriage upon any child
potentially living with homosexual parents. While the legal
debate over gay marriage has been raging for over ten years,10
this Note will argue that only recently has the debate over gay
marriage evolved into a balancing act that considers not only
the rights of same-sex couples, but also the rights of these
couples’ children. More significantly, this Note will advance the
possibility that this repeated deference to marriage’s third
party, the child, will open up a challenge to anti-gay marriage
laws and constitutional amendments that has not previously
6
See, e.g., Lewis, 908 A.2d at 217 (“[U]nder our current laws, committed
same-sex couples and their children, are not afforded the benefits and protections
available to similar heterosexual households.” (emphasis added)).
7
Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006).
8
Id. at 7.
9
Id.
10
See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), superseded by constitutional
amendment, HAW. CONST. art. 1, § 23 (deciding the first significant gay marriage case
in U.S. history over fourteen years ago).
2008]
SECURING SAME-SEX MARRIAGE RIGHTS
697
been considered: an Equal Protection challenge based on a
child’s right to presumed legitimacy at birth.11
Part II of this Note will review the history of the gay
marriage debate in the courts, from its Hawaiian beginnings in
1993 up to the New Jersey court’s decision in 2006. Special
attention will be paid to the evolution of judicial concerns with
child rearing and the effect of marriage on children. Part III
will briefly survey the history of Equal Protection
jurisprudence related to distinctions drawn on the basis of
illegitimacy. The benefits of presumed legitimacy granted to
children born into wedlock will also be examined. Part IV will
then argue that a child born into a household with same-sex,
unwed parents could contend that laws barring her parents
from marrying are an affront to her Equal Protection rights.
New York will be used as a convenient model for this
examination due to its recent decision upholding an
interpretation of the marriage code as precluding homosexual
marriage. By narrowly focusing on a single state and its laws,
the potential of such a claim by a child may be accurately
assessed. Finally, Part V of this Note will survey the current
landscape of gay marriage nationwide (considering the relevant
legislation and constitutional amendments) to argue that the
New York model proposed in Part IV might be used as a
nationwide attack on gay marriage bans—an attack no longer
waged by the couples, but by their children.
II.
THE GAY MARRIAGE DEBATE—FOURTEEN YEARS
AND COUNTING
Over the years, the judicial focus in gay marriage cases
has slowly begun to turn away from notions of individual
liberty and toward the collective concerns of the family unit.12
11
Presumably, a child of gay parents could base an Equal Protection claim on
any of the benefits afforded to children through the marital status of their parents. The
New Jersey court noted, for example, that a child of a non-biological same-sex parent
could not receive survivor benefits under the Worker’s Compensation Act if their
parent was killed at work. Lewis, 908 A.2d at 218. However, this Note will pay special
attention to the benefit of presumed legitimacy because the Supreme Court of the
United States has expressly stated that Equal Protection claims based on legitimacy
distinctions should be afforded intermediate review. See Clark v. Jeter, 486 U.S. 456,
461 (1988).
12
Compare Baehr, 852 P.2d at 67 (holding that “marriage is a basic civil
right”), with Lewis, 908 A.2d at 216 (“[New Jersey’s Domestic Partnership Act] does not
provide to committed same-sex couples the family law protections available to married
couples. The Act provides no comparable presumption of dual parentage to the nonbiological parent of a child born to a domestic partner.”).
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This section tracks that progression to show the everincreasing role children have in the gay marriage conversation.
A.
The Early Murmurs—Hawaii (1993), Alaska (1998),
and Vermont (1999)
In May of 1993, the first truly significant legal battle
over gay marriage13 was decided by the Supreme Court of
Hawaii in Baehr v. Lewin.14 The plaintiffs, a collection of
homosexual couples, filed suit alleging that the Director of the
Department of Health unfairly denied their applications for
marriage licenses based on the Department’s stance that the
gendered nouns used in the marriage and consanguinity
statutes of Hawaii proscribed such a license issuance.15 The
plaintiffs alleged that this application of the marriage law
violated their rights to privacy as well as the equal protection
and due process clauses of the Hawaii Constitution.16 The court
gave little credence to the right to privacy and Due Process
claims brought by the plaintiffs based on a finding that the
right to gay marriage was not a fundamental right warranting
protection.17 Importantly, however, the court ruled that the
denial of marriage licenses to same-sex couples violated the
equal protection clause of the Hawaii Constitution because the
practice of denying same-sex couples marriage licenses drew
distinctions based on gender.18
This ruling of the Supreme Court of Hawaii marked the
first significant judicial challenge to the traditional
interpretation of marriage law in the United States.19 When
13
In January of 1993, Dean v. District of Columbia, Civil Act No. 90-13892,
1992 WL 685364, at *1 (D.C. Super. Ct. June 2, 1992), aff’d 653 A.2d 307 (1995), was
decided, holding that any claims to gay marriage rights were not protected under the
Federal Constitution. While this is significant, the Hawaii decision showed that a state
constitutional challenge could prove successful. As such the bulk of cases dealing with
gay marriage has been, and continues to be, fought in the state courts.
14
852 P.2d 44.
15
Id. at 48-49.
16
Id. at 50.
17
Id. at 57.
18
Id. at 67. The court also held that the sex based classifications would be
held to a strict scrutiny standard in the state of Hawaii, meaning that the marriage
law in question necessitated a compelling state interest and a narrow tailoring of the
law to meet that interest. Id.
19
LOWELL TONG, Comparing Mixed-Race and Same-Sex Marriage, in ON THE
ROAD TO SAME SEX MARRIAGE 109, 119 (Robert P. Cabaj & David W. Purcell eds., 1998)
(“Although there were previous attempts to recognize same-sex unions legally, a case
heard by the Hawaii State Supreme Court, Baehr v. Lewin in 1993, is considered to be
a landmark case.”).
2008]
699
assessing the plaintiffs’ equal protection claim, the Hawaii
court noted the various disadvantages facing homosexual
couples who are denied marriage rights granted to married
heterosexual couples: tax advantages, public assistance from
the Department of Human Services, control of community
property, inheritance rights, the right to spousal support, the
right to name change, post-divorce rights, the spousal privilege
granted pursuant to the Rule of Evidence, and the right to
bring a wrongful death action.20 While this list was presumably
not meant to be exhaustive, it curiously makes mention of only
one right related to child rearing, the right to an “award of
child custody and support payments in divorce proceedings.”21
In fact, the only other mentions of children in the court’s
opinion were made when the court discussed case law
regarding the right to privacy22 (not the claim upon which the
court rested its opinion) and when the court restated the
Department of Health’s opinion that the denial of gay marriage
rights protects the type of family unit that provides “a
nurturing environment to children born to married persons,” a
claim to which the court did not respond.23 Based on this paltry
reference to the role of children in the same-sex marriage
equation, it is fair to say that in May of 1993, this court’s
attention was not keenly focused on the rights of children
reared by homosexual parents.24
In 1998, Alaska became the second state to tackle the
issue of gay marriage in the courts.25 In Brause v. Bureau of
Vital Statistics, the Superior Court of Alaska faced an even
stronger challenge than the Supreme Court of Hawaii.26 Where
the Hawaii court in Baehr ruled on a statute that implicitly
forbade gay marriage by use of gender specific terms, the
20
Baehr, 852 P.2d at 59.
Id.
22
Id. at 56.
23
Id. at 52.
24
Of course, the reason may be that gay parents were either marginally
existent or existed outside of the public consciousness. However, the reason for this
omission is insignificant; the fact remains that in the earliest case in the gay marriage
debate, the children affected stood by in the shadows.
25
See Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL
88743, at *1 (Alaska Super. Ct. Feb. 27, 1998), superseded by constitutional
amendment, ALASKA CONST. art. 1, § 25.
26
Compare Baehr, 852 P.2d at 67 (“[W]e have not held . . . the appellants
have a civil right to a same sex marriage.” (internal quotation marks omitted)), with
Brause, 1998 WL 88743, at *1 (“The court finds that marriage, i.e., the recognition of
one’s choice of a life partner, is a fundamental right.”).
21
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Brause court was faced with a statute that expressly forbade
gay marriage.27 The plaintiffs in Brause contested an Alaskan
law that defined marriage as between a man and a woman.28
With the stronger prohibition came a stronger ruling from the
court, and the Alaska judiciary struck down the Marriage Code
at issue when it held that “marriage, i.e., the recognition of
one’s choice of a life partner, is a fundamental right.”29 The
Brause court saw the gay marriage issue primarily as an issue
of personal liberty;30 as such, the court never considered the
benefits that a recognized marriage affords to any of the
affected parties—partners and children alike.31
Finally, in 1999, the first gay marriage case to ever
significantly deal with the rights and securities granted to
children through marriage was decided in Vermont.32 In Baker
v. Vermont, three homosexual couples brought suit against the
state after each couple had been denied a marriage license from
their town clerk.33 The State contended that “the Legislature
[was] justified . . . ‘in using the marriage statutes to send a
public message that procreation and child rearing are
intertwined.’”34 Plaintiffs offered numerous theories of recovery,
including an assertion that the plain language of the Vermont
marriage statute allowed for gay marriage.35 However, the
holding, which ultimately granted marriage rights, was not
grounded in the right to privacy, the Federal Equal Protection
Clause or the due process clause of the Vermont Constitution,
but rather in the novel common benefits clause36 that is unique
27
Brause, 1998 WL 88743, at *1 (citing ALASKA MARRIAGE CODE
§ 25.05.011(a)).
28
Id.
29
Id.
30
Id. at *3. In fact, the precedent upon which the Brause court premised its
decision was a ruling 30 years prior, holding it unconstitutional for public schools to set
hair length limitations on its students. See Breese v. Smith, 501 P.2d 159, 175 (Alaska
1972).
31
The Brause decision is decidedly the shortest gay marriage decision in
American jurisprudence. The court quickly held that marriage is a fundamental right
and therefore did not address any of the other arguments that are hallmarks of other
major gay marriage cases. See Brause, 1998 WL 88743, at *4.
32
See Baker v. Vermont, 744 A.2d 864, 884-85 (Vt. 1999).
33
Id. at 867.
34
Id. at 881.
35
Id. at 868-70.
36
The common benefits clause reads:
That government is, or ought to be, instituted for the common benefit,
protection, and security of the people, nation, or community, and not for the
particular emolument or advantage of any single person, family, or set of
2008]
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to the State of Vermont.37 Regardless of this anomalous
posturing, it is nonetheless significant that Vermont became
the first state to recognize that the concerns expressed by
homosexual couples included protection of their children’s
rights:
They [plaintiff-couples] argue that the large number of married
couples without children, and the increasing incidence of same-sex
couples with children, undermines the State’s rationale [for denying
gay marriage]. They note that Vermont law affirmatively guarantees
the right to adopt and raise children regardless of the sex of the
parents, see 15A V.S.A. § 1-102, and challenge the logic of a
legislative scheme that recognizes the rights of same-sex partners as
parents, yet denies them—and their children—the same security as
spouses.38
The court adopted the plaintiffs’ argument regarding the rights
of children in making its ruling and noted that “the exclusion of
same-sex couples from the legal protections incident to
marriage exposes their children to the precise risks that the
State argues the marriage laws are designed to secure
against.”39
Ultimately, the court held that same-sex couples were
entitled to “the same benefits and protections afforded by
Vermont law to married opposite-sex couples,”40 but reserved to
the legislature the right to craft laws facilitating this mandate.
However, the true seismic shift in this case was the court’s
willingness to turn the State’s interest in protecting children
into an argument favoring same-sex marriage.41 The court
persons, who are a part only of that community; and that the community
hath an indubitable, unalienable, and indefeasible right, to reform or alter
government, in such manner as shall be, by that community, judged most
conducive to the public weal.
VT. CONST. art. 7.
37
Baker, 744 A.2d at 870, 880-86 (“[I]t is the Common Benefits Clause of the
Vermont Constitution we are construing, rather than its counterpart, the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution. . . .
[T]he Common Benefits Clause . . . differs markedly from the federal Equal Protection
Clause in its language, historical origins, purpose, and development.”).
38
39
Id. at 882 (emphasis omitted).
40
Id. at 886. Ultimately, the Vermont Legislature rejected gay marriage in
favor of civil unions. See VT. STAT. ANN. tit. 15, § 1202 (2002).
41
The court stated:
The legal benefits and protections flowing from a marriage license are of such
significance that any statutory exclusion must necessarily be grounded on
public concerns of sufficient weight, cogency, and authority that the justice of
the deprivation cannot seriously be questioned. Considered in light of the
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recognized that “a significant number of children today are
actually being raised by same-sex parents, and that increasing
numbers of children are being conceived by such parents” and
refused to accept the State’s argument that its interest in
promoting procreation was a compelling justification for
denying same-sex marriage rights.42 Instead, the court clearly
drew the opposite conclusion and stated that “to the extent that
the state’s purpose in licensing civil marriage was, and is, to
legitimize children and provide for their security, the statutes
plainly exclude many same-sex couples who are no different
from opposite-sex couples with respect to these objectives.”43 It
was this logic, adopted by the Baker court on December 20,
1999, that truly gave force to the gay marriage debate.44
B.
The Exclamation—The Massachusetts Supreme
Judicial Court (2003)
With Vermont’s historic adoption of civil unions, the
momentum seemed to be building toward a possible recognition
of full same-sex marriage rights within the United States. And
then, in 2003, along came Massachusetts.45 The Massachusetts
extreme logical disjunction between the classification and the stated purposes
of the law—protecting children and ‘furthering the link between procreation
and child rearing’—the exclusion falls substantially short of this standard.
The laudable governmental goal of promoting a commitment between
married couples to promote the security of their children and the community
as a whole provides no reasonable basis for denying the legal benefits and
protections of marriage to same-sex couples, who are no differently situated
with respect to this goal than their opposite-sex counterparts.
Baker, 744 A.2d at 884 (emphasis omitted).
42
Id. at 881, 884.
43
44
In 1998, both Alaska and Hawaii passed constitutional amendments,
essentially erasing each state’s holdings with regard to gay marriage. See ALASKA
CONST. art. 1, § 25 (“To be valid or recognized in this State, a marriage may exist only
between one man and one woman.”); HAW. CONST. art. 1, § 23 (“The legislature shall
have the power to reserve marriage to opposite-sex couples.”).
It is interesting to note that it was in Vermont, with the judiciary’s unique
recognition of gay couples as parents in Baker, that gay marriage rights, in the form of
civil unions, first gained real traction.
45
From a historical perspective, it is not surprising that Massachusetts was
the first state to allow gay marriage as the state’s marriage law was always premised
on marriage being a secular institution:
It was clear to Plymouth . . . that the best way to avoid interference from the
High Church party that controlled early seventeenth century England was to
keep as free as possible from political and religious affiliation with England’s
government. Ministers of the established church were at that time the only
authorized celebrants of marriage in England; in Plymouth, following the
2008]
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court’s decision in Goodridge v. Department of Public Health
remains the only case in the United States to have granted full
marriage rights to homosexual couples.46 The ruling came on
the heels of the major Supreme Court decision in Lawrence v.
Texas.47 However, as will be seen, the Goodridge court was less
concerned with the notions of personal choice that underpinned
the Lawrence decision and more influenced by the Baker court’s
perception of marriage as an institution for child rearing.48
In June of 2003, the United States Supreme Court ruled
in Lawrence that the right to privacy, rooted in the Due Process
Clause of the Constitution, precludes the government of any
state from interfering in the private sexual choices made by
consenting individuals.49 Specifically, the Court overturned
anti-sodomy laws in Texas that were primarily directed toward
homosexual conduct.50 Some scholars immediately read the
custom with which the colonists had become familiar in Holland, civil
ceremonies only were countenanced.
FRED S. HALL & MARY E. RICHMOND, MARRIAGE AND THE STATE 22-23 (1929). The
Massachusetts Supreme Judicial Court in Goodridge echoed such a historical
understanding of the marriage code: “In Massachusetts, civil marriage is, and since
pre-Colonial days has been, precisely what its name implies: a wholly secular
institution.” Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 954 (Mass. 2003).
Furthermore, some analysts saw the struggle for gay marriage in
Massachusetts as having “roots that go back at least to 1989, when the Commonwealth
became the second state in the nation (after Wisconsin in 1982) to include sexual
orientation in statewide laws banning discrimination in employment and public
accommodations.” DANIEL R. PINELLO, AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE
34 (2006).
46
See, e.g., Cece Cox, To Have and To Hold—Or Not: The Influence of the
Christian Right on Gay Marriage Laws in the Netherlands, Canada, and the United
States, 14 LAW & SEXUALITY REV. LESBIAN GAY BISEXUAL & TRANSGENDER LEGAL
ISSUES 1, 6 (2005) (“Currently, only one of the fifty states, Massachusetts, has
recognized gay marriage.”). See generally Goodridge, 798 N.E.2d 941 (Mass. 2003).
47
539 U.S. 558, 578 (2003) (finding unconstitutional Texas laws prohibiting
sodomy).
48
Compare Baker, 744 A.2d at 882 (“[T]he exclusion of same-sex couples from
the legal protections incident to marriage exposes their children to the precise risks
that the State argues the marriage laws are designed to secure against.” (emphasis
omitted)), with Goodridge, 798 N.E.2d at 964 (“Excluding same-sex couples from civil
marriage . . . does prevent children of same-sex couples from enjoying the
immeasurable advantages that flow [through marriage].”).
That Massachusetts would confront marriage law from a similar viewpoint
as one of its New England neighbors is consistent with the history of the region. See
Hall, supra note 45, at 22 (“Beginning with Massachusetts, we find that it shares with
the entire New England group of states a development different from that of all other
sections of the country.”).
49
Lawrence, 539 U.S. at 578 (“[I]ndividual decisions . . . concerning the
intimacies of physical relationships, even when not intended to produce offspring, are a
form of ‘liberty’ protected by [the Due Process Clause]” (quoting Bowers v Hardwick,
478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
50
Justice Kennedy wrote:
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ruling to suggest that “[i]f a state singles out gays for
unprecedentedly harsh treatment, the Court will presume
what is going on is a bare desire to harm, rather than moral
disapproval . . . plac[ing] all antigay laws under suspicion.”51
This perception, coupled with the timing of the Massachusetts
ruling in Goodridge52 only five months later, made it easy to
assume there was a causal connection between the two
rulings.53 Indeed, the Massachusetts court immediately
referenced the Lawrence decision in the second paragraph of its
ruling in Goodridge.54 However, the substance of the
Massachusetts ruling owes less of a debt to the Supreme Court
than it does to the Baker decision from Vermont.55
In Goodridge, seven couples challenged the Department
of Health’s decision to refuse to issue marriage licenses to the
same-sex couples.56 The same-sex partners had met all the
express requirements of the marriage code necessary to obtain
a license; however, the Department of Health rejected their
applications based on the Department’s understanding that
Massachusetts did not recognize same-sex marriage.57 The
Massachusetts Supreme Judicial Court found that the ordinary
The [anti-sodomy] statutes do seek to control a personal relationship that,
whether or not entitled to formal recognition in the law, is within the liberty
of persons to choose without being punished as criminals . . . . When sexuality
finds overt expression in intimate conduct with another person, the conduct
can be but one element in a personal bond that is more enduring. The liberty
protected by the Constitution allows homosexual persons the right to make
this choice.
Id. at 567.
51
Symposium, Gay Rights After Lawrence v. Texas, 88 MINN. L. REV. 1017,
1019 (2004).
52
Goodridge, 798 N.E.2d at 941. Goodridge was decided in November of
2003; the Lawrence Court made its ruling the preceding June. Lawrence, 539 U.S. at
558.
53
In fact, this seems to be a popular common perception. See David Moats,
CIVIL WARS: A BATTLE FOR GAY MARRIAGE 265 (2004) (“The court’s reasoning in the
Lawrence case paralleled the reasoning of the plaintiffs in the Goodridge case,
particularly in its emphasis on the right to privacy in decisions about intimate
conduct.”); see also Same-Sex Marriage Status in the United States by Statute,
http://en.wikipedia.org/wiki/List_of_state_laws_on_same-sex_unions (“In 2003, the U.S.
Supreme Court’s decision in Lawrence v. Texas paved the way for same-sex marriage to
emerge as a hot-button political issue. Since Massachusetts became the first state to
legalize same-sex marriage in 2004, other states have rushed to either restrict or
liberalize their own marriage laws.”) (last visited Oct. 12, 2007).
54
Goodridge, 798 N.E.2d at 948 (“Our obligation is to define liberty of all, not
to mandate our own moral code.” (quoting Lawrence, 539 U.S. at 571)).
55
56
Goodridge, 798 N.E.2d at 949.
57
Id. at 950.
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usage of the term “marriage,” when used by the legislature in
the marriage code, did preclude homosexual marriage.58
However, the court went on to say that because the state had
no rational basis for denying same-sex couples the right to
marry, the practice of denying marriage licenses to homosexual
partners was a violation of equal protection under the
Massachusetts Constitution.59 In the course of this
determination, the court’s repeated references to the children
of homosexual partners were truly fascinating.
Reasoning related to the equal protection of children
raised by gay parents, unseen before Vermont’s decision in
Baker,60 permeates the Goodridge decision.61 The Vermont court
held that the impositions placed upon the children of gay
parents undermined the state’s purported interest in
differentiating between straight and gay couples’ marriage
rights.62 The Massachusetts Supreme Judicial Court took this
concept further and found that such a detriment to these
children was an affirmative reason to view gay marriage as a
civil right.63 When making its determination the court
recognized:
[M]arital children reap a measure of family stability and economic
security based on their parents’ legally privileged status that is
largely inaccessible, or not as readily accessible, to nonmarital
children. Some of these benefits are social, such as the enhanced
approval that still attends the status of being a marital child. Others
are material, such as the greater ease of access to family-based State
and Federal benefits that attend the presumptions of one’s
parentage.64
Viewing the issue through this child-centered lens, the court
concluded, “It is undoubtedly for these concrete reasons . . .
that civil marriage has long been termed a ‘civil right.’”65
58
Id. at 953.
Id. at 961.
60
61
Goodridge, 798 N.E.2d at 964 (“Excluding same-sex couples from civil
marriage will not make children of opposite-sex marriages more secure, but it does
prevent children of same-sex couples from enjoying the immeasurable advantages that
flow from the assurance of ‘a stable family structure in which children will be reared,
educated, and socialized.’” (quoting Goodridge, 798 N.E.2d at 995 (Cordy, J.,
dissenting))); id. at 963 (“[T]he task of child rearing for same-sex couples is made
infinitely harder by their status as outliers to the marriage laws.”).
62
63
See Goodridge, 798 N.E.2d at 956-57.
64
Id.
65
Id.
59
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Furthermore,
the
Goodridge
court
took
the
unprecedented step of enumerating certain parental rights as
“benefits accessible only by way of a marriage license.”66
Specifically, the court explicitly recognized that “[e]xclusive
marital benefits that are not directly tied to property rights
include the presumptions of legitimacy and parentage of
children born to a married couple.”67 It is largely due to this
type of consideration—a broad view of marriage as a parental
construct—that enabled the Goodridge court to find that no
legislative rationale for anti-gay marriage laws could survive
even a rational basis examination.68 The court therefore found
it unnecessary to consider the plaintiff-couple’s argument that
their case merited a stricter standard of review.69
Ultimately, the Massachusetts court summarily rejected
the Department of Health’s proposed legislative rationales.70
The court concluded that “[e]xcluding same-sex couples from
civil marriage will not make children of opposite-sex couples
marriages more secure, but it does prevent children of samesex couples from enjoying the immeasurable advantages that
flow from the assurance of ‘a stable family structure in which
children will be reared, educated, and socialized.’”71 The
Supreme Judicial Court of Massachusetts, without ever
expressly citing the case, built on the dicta in Baker v. Vermont
to reach its finding that “barring an individual from the
protections, benefits, and obligations of civil marriage solely
because that person would marry a person of the same sex
violates” equal protection.72 While the press and the public were
acutely aware of the benefits that homosexual couples had
gained after Goodridge, most everyone neglected, and
66
Id. at 955.
68
“Because the statute does not survive rational basis review, we do not
consider the plaintiffs’ arguments that this case merits strict judicial scrutiny.” Id. at
961.
69
Id.
70
The Court wrote:
67
The department posits three legislative rationales for prohibiting same-sex
couples from marrying: (1) providing a “favorable setting for procreation”;
(2) ensuring the optimal setting for child rearing, which the department
defines as “a two-parent family with one parent of each sex”; and (3)
preserving scarce State and private financial resources.
Id.
71
72
Id. at 964.
Id. at 969.
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continues to neglect, the consideration of children’s rights that
swayed the plurality.73 As Goodridge remains the only case in
the United States to grant full marriage rights to homosexuals,
its reasoning is a touchtone for the gay marriage debate that
seemingly must be either expounded upon or discredited.
Therefore, Goodridge’s treatment of marriage’s effects on the
children of gay parents will be central to any challenges
brought by opponents of gay marriage prohibitions.
C.
The Aftermath—Arizona, Indiana, New York, and
New Jersey (2004-2006)
The backlash against the Goodridge decision was
immediate and fierce,74 and perhaps inevitable.75 Prior to the
ruling of the New Jersey Supreme Court in late 2006, courts
across the country that were faced with the gay marriage
question seemed to be riding the political pendulum’s swing
away from the Vermont and Massachusetts trend. Courts in
Arizona,76 Indiana,77 and New York78 all upheld statutory
schemes barring gay marriage. Even the appellate court in
New Jersey upheld a statutory interpretation of the marriage
code as prohibiting gay marriage,79 although the New Jersey
State Supreme Court ultimately overturned its ruling in Lewis
v. Harris.80 However, as the momentum of the debate shifted
73
See, e.g., Jason McLure, Tears of Joy, NEWSWEEK, Nov. 18, 2003.
One year after Goodridge, in the November election, thirteen states
approved constitutional amendments banning gay marriage, nullifying the prospect of
judicial interference. See Joshua K. Baker, Status, Substance, and Structure: An
Interpretive Framework for Understanding the State Marriage Amendments, 17
REGENT U. L. REV. 221, 221 (2005). In total today, “more than 35 states have
introduced legislation aimed at preserving the traditional definition of marriage as a
union between a man and a woman.” Kavan Peterson, 50-State Rundown on Gay
Marriage Laws (updated Nov. 3, 2004), Stateline.org, http://www.stateline.org/live/
ViewPage.action?siteNodeId=136&languageId=1&contentId=15576.
75
See Carlos A. Ball, The Backlash Thesis and Same-Sex Marriage: Learning
from Brown v. Board of Education and Its Aftermath, 14 WM. & MARY BILL RTS. J. 1493
(2006) (comparing the legal and social backlash against desegregation in light of Brown
v. Board of Education with the recent backlash following Goodridge v. Department of
Public Health); Michael J. Klarman, Brown and Lawrence (And Goodridge), 104 MICH.
L. REV. 431 (2005) (same).
76
Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451, 463
(Ariz. Ct. App. 2003).
77
Morrison v. Sadler, 821 N.E.2d 15, 35 (Ind. App. 2005).
78
Hernandez v. Robles, 855 N.E.2d 1, 22 (N.Y. 2006); see discussion supra
Part I.
79
Lewis v. Harris, 875 A.2d 259, 271, 274 (N.J. Super. Ct. App. Div. 2005),
modified, 908 A.2d 196 (2006).
80
Lewis v. Harris, 908 A.2d 196, 224 (N.J. 2006); see discussion supra Part I.
74
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toward a rejection of gay marriage rights (as evidenced by
victories in courts across the country), the judicial focus in
these cases appeared to remain the same; the central question
continued, and continues, to be “what is best for the children?”
For example, in Standhardt v. Superior Court, the
Arizona Court of Appeals took a particularly questionable
bright-line approach in this regard, upholding the prohibition
of gay marriage, while nonetheless admitting to the inequities
visited upon the children of gay parents caused by the
decision.81 The case revolved around a familiar tale: a
homosexual couple applied for a marriage license and their
application was denied.82 The couple appealed directly to the
Arizona Court of Appeals and the court chose to exercise
jurisdiction.83 As in Goodridge and Baker, the case primarily
hinged upon whether the Legislature of the state could show a
rational basis for a state law barring gay marriage.84 As seen
before, the state premised its rationale for barring gay
marriage on “encouraging procreation and child-rearing within
the stable environment traditionally associated with marriage”
and contended that “limiting marriage to opposite-sex couples
is rationally related to that interest.”85 The plaintiffs, as
expected, argued that the law was both over- and underinclusive because not all heterosexual couples have children,
while numerous gay couples do raise children.86 The court
conceded that the plaintiffs’ position was persuasive.87
However, despite the concession, the court stated, “A perfect fit
is not required under the rational basis test, and [the court]
will not overturn a statute merely because it is not made with
mathematical nicety, or because in practice it results in some
inequality.”88
The Arizona court brazenly admitted that deference to
the state’s purported legislative intent would result in “some
inequality.”89 What is vastly more striking, however, is that the
81
Standhardt, 77 P.3d at 462 (internal quotation marks omitted).
Id. at 454.
83
“We accept jurisdiction over this special action because there is no equally
plain, speedy, or adequate remedy by appeal.” Id.
84
The court held that because the right to same-sex marriage was not a
fundamental right, the standard of review should be the minimal test. Id. at 460-61.
85
Id. at 461.
86
Id. at 462.
87
Id.
88
Id.
89
Id.
82
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709
court went on to specify exactly what demographic would suffer
at the hands of this inequality: children, the very group the
state claimed it was trying to protect.90 The court stated:
Children raised in families headed by a same-sex couple deserve and
benefit from bilateral parenting within long-term, committed
relationships just as much as children with married parents. Thus,
children in same-sex families could benefit from the stability offered
by same-sex marriage, particularly if such children do not have ties
with both biological parents. But although the line drawn between
couples who may marry (opposite-sex) and those who may not (samesex) may result in some inequity for children raised by same-sex
couples, such inequity is insufficient to negate the State’s link
between opposite-sex marriage, procreation, and child-rearing.91
The Arizona Court of Appeals may be right in its final
analysis.92 However, this admitted inequality raises a unique
question. Specifically, if the marriage laws of a state do in fact
treat children differently based on the nature of their family
unit, might such disadvantaged children have a cause of action
in opposition to anti-gay marriage legislation?93
III.
THE STANDARD OF REVIEW FOR A CAUSE OF ACTION
BASED ON ILLEGITIMACY
As suggested, it is conceivable that a child of gay
parents may attempt an equal protection attack on anti-gay
90
Id. at 463.
Id. (emphasis added).
92
While it is not addressed directly, the court appears to be correct that
unequal treatment of a group that is not a party to the action cannot save the plaintiff’s
claim if the court does indeed believe that promoting heterosexual unions is a
legitimate government purpose. The children simply have no standing to seek redress
for the admitted harm. Therefore, if the children are not a party to the action, the fact
that they suffer unequal treatment under the law does little to bolster the plaintiffcouple’s claim of disparate treatment.
93
The Court of Appeals in Indiana offered a novel explanation for its own
adoption of this inequitable scheme in Morrison v. Sadler. 821 N.E.2d 15, 24 (Ind. Ct.
App. 2005). There, the court reasoned that because same-sex couples must become
parents by virtue of costly adoptions or artificial reproductive means, the children of
such gay parents are, by necessity, being brought into families with a monetary and
emotional commitment to having a child, ensuring some measure of stability. On the
other hand, because opposite-sex couples may inadvertently become pregnant, the
Legislature has an interest in inducing such accidental parents into a marriage
relationship that will provide greater security for the child. See id.
While this argument is admittedly clever, it does not deny the unequal
protection under the law faced by the children of gay parents, discussed infra Parts IIIIV. Rather, the Indiana court has merely provided a fascinating justification for the
inequality.
91
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marriage laws.94 This section will explore one possible avenue
for bringing such a claim: inequitable treatment based on
illegitimacy. If such an attack were mounted, it would be
desirable to argue that anti-gay marriage laws discriminate
against the children of gay parents on the basis of illegitimacy
because such claims carry an established heightened standard
of review, namely, intermediate review.95
The Supreme Court “consistently has invalidated laws
that deny a benefit to all nonmarital children that is accorded
to all marital children.”96 It has also been noted that, as the
Court in Weber v. Aetna Casualty & Surety Co. stated, “[N]o
child is responsible for his birth and penalizing the illegitimate
child is an ineffectual—as well as an unjust—way of deterring
the parent.”97 It is therefore clear that federal jurisprudence
frowns upon laws that draw distinctions between legitimate
and illegitimate children.98 But what about a law, like the
traditional marriage code, that provides unequal access to the
right to be considered “legitimate” at birth? Whether the
traditional man-woman marriage code violates equal protection
by denying the children of same-sex couples the opportunity to
be considered the legitimate child of both same-sex parents at
birth is a difficult question. A look at the traditional
application of the intermediate standard of review in
illegitimacy cases provides some insight.
In 1988, the Supreme Court heard the case of Clark v.
Jeter, a case that concerned a Pennsylvania statute that
required paternity suits to be brought within six years of the
birth of an illegitimate child.99 In holding that the statute
violated the Equal Protection Clause of the Federal
Constitution, the Court explicitly applied the intermediate
94
It is likely that any such suit would be brought on behalf of the child by the
parent. A general Equal Protection claim could be brought by the unmarried parents at
any time; however, arguing unequal application of presumed legitimacy would be
notably difficult, as the child would not be able to bring suit until after birth, at which
point the presumption of legitimacy from birth will have become moot. However, this
situation is similar to other cases in that it involves a claim that it is capable of
repetition, but evading review. See, e.g., Roe v. Wade, 410 U.S. 113, 125 (1973); S. Pac.
Terminal Co. v. ICC, 219 U.S. 498, 515 (1919). For the purpose of conjecturing about
the possibility of such a claim, this Note will simply presume that standing to bring the
lawsuit may be established under this standard.
95
Clark v. Jeter, 486 U.S. 456, 461 (1988).
96
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES
§ 9.6, at 749 (2d ed. 2002); see, e.g., Levy v. Louisiana, 391 U.S. 68, 72 (1968).
97
Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972).
98
See, e.g., Clark, 486 U.S. 456.
99
Id.
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711
standard of review, which requires a substantial relation
between the challenged legislation and an important
government objective in order to withstand scrutiny.100 The
Court’s consideration of that link notably contemplated the
financial concerns related to child rearing. The Court wrote:
[I]t is questionable whether Pennsylvania’s 6-year period is
reasonable . . . since such a mother [with an illegitimate child] might
realize only belatedly a loss of income attributable to the need to
care for the child; and since financial difficulties are likely to
increase as the child matures and incurs additional expenses.101
Evidently, optimizing the financial security of children is one
consideration to be made when applying intermediate scrutiny
in the illegitimacy context. This concern surely applies to a
child of same-sex parents who, in the absence of legitimization
under the marriage laws of the state, has only one parent
legally obligated to support her in the event her same-sex
parents should separate.102
Furthermore, the Court has given illegitimacy a
heightened standard of review because children born
illegitimately cannot change their status after birth.103 So what
of children born to gay or lesbian parents who desire to be
married but are prevented by law? The children born into these
relationships are essentially conferred the status of
“illegitimate” as a function of law.104 To be sure, an argument
could be made that because jurisprudence condemns
differentiating between legitimate and illegitimate children,
there is little worry that children forced into an illegitimate
birth by anti-gay marriage laws will suffer ill effects. However,
it is equally plausible that the courts, relying on case law
forbidding unfair disadvantages for illegitimate children,105
would look with similar disfavor upon laws that create, by
100
Id. at 461.
Id. at 456-57.
102
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 963 (Mass. 2004); see
also Margaret S. Osborne, Legalizing Families: Solutions to Adjudicate Parentage for
Lesbian Co-Partners, 49 VILL. L. REV. 363, 366 (2004) (discussing the problems of
custody and visitation of children when a same-sex partnership dissolves).
103
See CHEMERINSKY, supra note 96, at 748.
104
It is not entirely clear whether children born to married lesbians would be
considered “legitimate” by definition, but it is clear that such children have no chance
to be legitimized if the parents are barred from marrying. See infra Part IV for further
discussion of whether a child born to gay parents could ever be considered “legitimate.”
105
See generally Levy v. Louisiana, 391 U.S. 68 (1968); N.J. Welfare Rights
Org. v. Cahill, 411 U.S. 619 (1972).
101
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virtue of exclusion, this very distinction between similarly
situated children.106 For example, when a man and woman are
married and the woman conceives via artificial insemination
from a sperm donor, although the child will not be the
biological child of the husband, there will still be a presumption
of legitimacy that flows through the marriage to that child.107
However, for a lesbian couple, if one of the partners is
artificially inseminated by a donor, there will be no
presumption that the non-birth-giving woman is the legitimate
parent of the child.108
The idea of two women sharing the status of legitimate
parent is not entirely foreign to the law. A California case,
Johnson v. Calvert,109 opened the door to such a legal
possibility. In Johnson, the court found two women to be the
legal mothers of the same child, without the requirement of
adoption proceedings.110 A woman provided her egg to be
implanted in a surrogate.111 After relations between the
biological mother and the surrogate deteriorated, litigation was
initiated to determine who had a legal right to the child.112 The
court determined that California law allowed for motherhood to
be established either by a showing of genetic relationship or
through proof of actual childbirth.113 Ultimately, the court
determined that the woman who had donated her egg was the
mother entitled to the child, based primarily on the weight of
the parties’ intent.114
106
For an overall examination of legitimacy as it pertains to gay marriage, see
generally Benjamin G. Ledsham, Note, Means to Legitimate Ends: Same-Sex Marriage
Through the Lens of Illegitimacy-Based Discrimination, 28 CARDOZO L. REV. 2373
(2007).
107
See, e.g., 46 N.Y. JUR. 2D, Domestic Relations § 843 (“There is a
presumption that a child born in wedlock, that is, while the mother was united to a
husband in marriage, including a valid common-law marriage, is legitimate.”).
108
While it may seem controversial that two women can be the legitimate
parents of the same child, such a statement would not contradict the plain meaning of
the word. “Legitimate” is defined as “conceived or born of parents legally married” or
more generally as “sanctioned by law or custom.” WEBSTER’S NEW TWENTIETH
CENTURY DICTIONARY 1035 (2d ed. 1983). In other words, legitimacy is that which the
law makes legitimate.
109
851 P.2d 776 (1993).
110
Id. at 781.
111
Id. at 778.
112
Id.
113
Id. at 781.
114
Id. at 782; see also ELLMAN ET AL., FAMILY LAW: CASES, TEXTS, PROBLEMS
1055 (4th ed. 2004).
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The result in Johnson led two lesbian partners to test
the limits of the ruling’s application.115 One of the female
partners provided the egg, while the other carried and gave
birth to the child; their legal intent was that both be considered
the mothers of the child, and accordingly a California judge
“issued a pre-birth decree recognizing both women as the
child’s legal mothers.”116 While this conclusion is likely unique
to the California jurisdiction, it does lend credence to the
theory that two women, as partners, can legally be the
legitimate parents of a single child.117 So how might a child of
gay parents bring an action claiming that this denial of the
presumption of legitimacy violates equal protection?
IV.
THE HYPOTHETICAL CHALLENGE
Operating under these newly arrived at assumptions—
that two women can legally be the legitimate parents of a child
at birth and that denying such a child this presumption of
legitimacy may give rise to an intermediate standard of judicial
review—this section will now consider the substance of an
Equal Protection challenge brought on behalf a child.
A.
Background
As a foundational matter, it is important to recognize
the realities of gay parenting in the United States today.
According to a U.S. census report published in February of
2003, approximately twenty-two percent of cohabitating male
partners are raising a child under the age of eighteen, while
115
The lesbian couple in question was Linda McAllister and Leslee Subak. For
further description of the couple, their son Max, and their case in general, see Osborne,
supra note 102, at 371 n.57. As of late 2004, McAllister and Subak continued to live
happily together, raising their son Max, who appears to live the normal life of a fiveyear-old, despite having the distinction of being the first child with two mothers legally
conferred the title of “mom” as a result of a pre-birth decree. See Tomas Van Houtryve,
The Gayby Boomers, THE INDEPENDENT, Nov. 7, 2004, available at
http://www.findarticles.com/p/articles/mi_qn4159/is_20041107/ai_n12761783 (“Leslee
and Linda tell me that the pre-school [Max] attend[s] has many other children from
same-sex parents. The youngsters can relate to their playmates and fit in easily.”).
116
ELLMAN ET AL., supra note 114, at 1055 (citing Carol Ness, Lesbian Moms
Gain Rights, S.F. EXAMINER, May 2, 1999, at A1).
117
Note that while much of the discussion that follows operates under the
hypothetical of two lesbian women having a child who brings an Equal Protection suit,
if gay marriage were extended to lesbian women as a result of such a suit, the
government would be virtually required to grant homosexual marriage rights to men
based on typical gender-based Equal Protection grounds completely apart from the
considerations of children put forth herein.
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approximately thirty-three percent of cohabitating female
partners are raising a minor child.118 These percentages hold
true regardless of the geographic region of the country.119 For
example, “[t]he South had the highest percentage [of lesbian
partners] with [their] own [child] under 18 years of age (34%),
while the Northeast had the lowest (31%).”120 In fact, one
commentator concluded the census data indicated same-sex
couples were living in 96% of the counties in the United
States.121 If one in four of those couples are raising children, as
indicated by the census, it is reasonable to assume that
virtually every county in the United States is home to one or
more sets of homosexual parents.122
Furthermore, despite the discontent of certain groups,123
the vast majority of states allow children to be adopted by
same-sex couples.124 Only one state, Florida, forbids gay parents
from adopting,125 making it fair to say that standard practice
around the country is to allow gay parents to raise children.
Moreover, the right to procreate has long been established as a
fundamental right that no governmental action is allowed to
contravene.126 With these facts not in question, it is fair to draw
three conclusions. First, because the right to procreate has
been deemed a fundamental right, homosexual parents have an
undisputed right to give birth via artificial insemination or
otherwise.127 Second, homosexual parents cannot be denied
adoption rights simply because of their sexual orientation.128
118
See TAVIA SIMMONS & MARTIN O’CONNELL, U.S. CENSUS BUREAU,
CENSR-5, MARRIED-COUPLE AND UNMARRIED-PARTNER HOUSEHOLDS: 2000, 9 (2003).
119
Id. The census figures subdivide the country into four regions: Northeast,
Midwest, South, and West. The figures for each of the four regions are within two
percentage points of the national average. Id.
120
Id. at 10.
121
See Michael Wilke, Research Booms on Same-Sex Couples, THE GULLY,
May 28, 2004, http://www.thegully.com/essays/gay_mundo2/wilke/040528_gay_US_
census.html (citing GARY GATES ET AL., THE GAY & LESBIAN ATLAS (2004)) (last visited
Oct. 5, 2007).
122
Id.; see also SIMMONS & O’CONNELL, supra note 118, at 9.
123
See, e.g., Lucy Ward, Anger at “Cheap Gimmick” of Anti-Gay Adoption
Card, THE GUARDIAN, Oct. 16, 2002, available at http://society.guardian.co.uk/
adoption/story/0,,812594,00.html (describing novelty donor-style cards released by a
Christian group which read, “In the event of my death I do not want my children to be
adopted by homosexuals”).
124
The only state with an explicit ban on homosexual adoption is Florida. See
FLA. STAT. ANN. § 63.042(3) (2003); see also Osbourne, supra note 102, at 368.
125
See supra note 124.
126
See, e.g., Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).
127
See id.
128
See, e.g., N.Y. COMP. CODES R. & REGS. tit. 18, § 421.16(h)(2) (2007).
2008]
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And third, homosexual parents exist in considerable numbers
and are raising children in the United States today.129
B.
New York as a Model
The laws and demographics of New York State fall
completely in line with the foregoing principles. New York
adoption regulations specifically state, “Applicants shall not be
rejected solely on the basis of homosexuality.”130 The term
“family” has even been defined by the New York court for the
purpose of rent control statutes; the judiciary has stated “the
term family . . . should not be rigidly restricted to those people
who have formalized their relationship by obtaining, for
instance, a marriage certificate or an adoption order.”131 Rather,
the court held as a matter of policy that the law’s protection
should focus on the “reality of family life.”132 The court used this
definition to hold that a deceased man’s homosexual partner
had the right to assert a familial relationship to the decedent
for the purpose of avoiding eviction when his partner, the lease
holder, had passed away.133 In light of this precedent, there can
be little doubt that New York courts recognize, if not encourage
(particularly in the state adoption laws), the existence of
homosexual family units raising children.134
However, the New York court, in Hernandez v. Robles,
ruled that gay marriage may be barred by statute in part
because “[t]he Legislature could rationally believe that it is
better . . . for children to grow up with both a mother and a
father.”135 But based on the adoption laws of the state, it does
not appear that the legislature actually believes that oppositesex couples are necessarily better equipped to raise children.136
Rather, what the law of New York clearly evinces is that the
“best interests” of children should be protected.137
129
See SIMMONS & O’CONNELL, supra note 118, at 9.
N.Y. COMP. CODES R. & REGS. tit. 18 § 421.16(h)(2) (2007).
131
Braschi v. Stahl Assocs. Co., 543 N.E.2d 49, 53 (N.Y.1989).
132
Id.
133
Id at 53-54.
134
See, e.g., In re Jacob, An Infant, 660 N.E.2d 397, 401 (N.Y. 1995) (holding
that the purpose of the adoption law is to “encourag[e] the adoption of as many children
as possible regardless of the sexual orientation or marital status of the individuals
seeking to adopt them”); see also N.Y. COMP. CODES R. & REGS. tit. 18, § 421.16(h)(2)
(2007).
135
136
See N.Y. COMP. CODES R. & REGS. tit. 18 § 421.16(h)(2) (2007).
137
Id.
130
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In In re Adoption of Evan, for example, a woman’s
lesbian partner was allowed to adopt her biological son because
the court viewed the adoption as “in Evan’s best interest.”138
Evan’s best interests were served in that case because allowing
said lesbian partner to adopt
would serve only to provide him with important legal rights which
he does not presently possess. It would afford him additional
economic security because [his mother’s partner] would become
legally obligated to support him. He would also be entitled to inherit
from [his mother’s partner] and her family under the law of intestate
succession and be eligible for social security benefits in the event of
her disability or death. Of immediate practical import, he would be
able to participate in the medical and educational benefits provided
by her employment, which are more generous than those possessed
by [his biological mother].139
The court found it clear that the financial and emotional
benefits of a two-parent household were in the best interest of a
child;140 what is not entirely clear is whether gay marriage
would confer those benefits as of right, circumnavigating the
need for costly adoptions.141
1. Determining the Standard
Suppose that a child born to gay parents, seeking the
full financial benefits of a two-parent household already
recognized by the New York courts, challenges the law that
barred her parents from marrying before her birth, thereby
precluding her from the benefits of presumed legitimacy. As
discussed, her best claim would be that the law unreasonably
violated her equal protection rights by discriminating based on
illegitimacy.142 Once the equal protection claim is brought,
discrimination based on illegitimacy would need to be shown in
order to establish the application of intermediate scrutiny
attendant to illegitimacy claims.143 The need to avoid costly
cross-adoption proceedings is a powerful argument showing the
unequal application of the law. Currently, once a child is born
138
In re Adoption of a Child Whose First Name Is Evan, 583 N.Y.S.2d 997,
999 (1992).
139
Id. at 998-99 (citations omitted).
Id.
141
See Kelley, supra note 2, at B1 (questioning how the New Jersey court’s
decision will affect one lesbian partner’s ability to adopt, without financial cost, a child
being carried by the other partner).
142
See supra Part III.
143
See Clark v. Jeter, 486 U.S. 456, 461 (1988).
140
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to gay parents (particularly lesbian partners), the non-birthgiving partner can legally adopt in order to provide the child
with all the rights attendant to a natural parent.144 However,
this process can be long and expensive and may create a
deterrent or, in many cases, a complete financial barrier.145 The
children of heterosexual couples face no such barriers to
receiving the full financial support of their parents; the
heterosexual couple need only marry before the birth of the
child, and there is a legal presumption that the child is
legitimate.146
This disparate treatment of unborn children, based
solely on their parents’ access to the benefits of the marriage
law, is ripe to be contested on Equal Protection grounds.
Section 24 of the New York Domestic Relations Law states very
generally:
A child heretofore or hereafter born of parents who prior or
subsequent to the birth of such child shall have entered into a civil
or religious marriage, or shall have consummated a common-law
marriage where such marriage is recognized as valid, in the manner
authorized by the law of the place where such marriage takes place,
is the legitimate child of both natural parents notwithstanding that
such marriage is void or voidable or has been or shall hereafter be
annulled or judicially declared void.147
There is no gender-specific language in the statute.148 By the
plain language of the law, if gay marriage were legal in New
York, and two women legally married, if one of the women gave
birth to a child, the presumption of the law would be that both
women were the natural, legitimate parents of the child.149 As
the Lewis court in New Jersey suggested, this type of presumed
legitimacy would provide a child of gay parents with a variety
of rights (for example, survivor rights under Worker’s
Compensation) that would flow not only through the birth144
See, e.g., In Re Adoption of a Child Whose First Name Is Evan, 583
N.Y.S.2d 997, 1000 (1992).
145
See, e.g., Osborne, supra note 102, at 372 n.59 (“A second-parent adoption
can cost from $2,500 to $3,000.”).
146
N.Y. DOM. REL. L. § 24(1) (McKinney 1999).
147
Id.
148
The gender-specific noun terms employed in marriage codes (i.e.,
consanguity provisions) are often crippling to gay couples claims of a right to marry.
E.g., Hernandez v. Robles, 855 N.E.2d 1, 6 (N.Y. 2006). Even Massachusetts denied
relief under the plain language of the marriage laws. Goodridge v. Dep’t of Mental
Health, 798 N.E.2d 941, 953 (Mass. 2003).
149
See discussion of Johnson v. Calvert, supra Part III; see also comments
regarding the definition of “legitimate” supra note 108.
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giving parent, but through both parents had they been legally
married.150
With the discriminatory access to presumed legitimacy
made clear and the potential remedy established (that is, gay
marriage), the final hurdle to proving an equal protection
violation would be the language of the state constitution. The
New York Constitution’s equal protection clause is simple and
concise in its wording: “No person shall be denied the equal
protection of the laws of this state or any subdivision
thereof.”151 The New York court held in Hernandez that gay
marriage could be outlawed because restricting which couples
could marry aided policies born out of “the undisputed
assumption that marriage is important to the welfare of
children.”152 The inference to be drawn is that the marriage
code is primarily meant to protect children. However, if the law
is designed to protect children, it must do so equally under
New York’s equal protection clause.153 Therefore, a child (or the
parents on that child’s behalf) could presumably challenge the
unequal application of the marriage laws, claiming the law
creates inequitable distinctions based on legitimacy. This
argument, if successful, would warrant review of the marriage
law under intermediate scrutiny,154 circumnavigating the
Hernandez court’s reluctance to apply intermediate scrutiny
based on gender inequality.155
The central question before the court in such a
challenge would be whether the marriage law discriminates on
the basis of legitimacy. A differentiation is made between
children born into wedlock and those born outside of wedlock:
namely, those born into wedlock are presumed to be the
150
Lewis v. Harris, 908 A.2d 196, 218 (N.J. 2006) (“We fail to see any
legitimate governmental purpose in disallowing the child of a deceased same-sex
parent survivor benefits under the Workers’ Compensation Act or Criminal Injuries
Compensation Act when children of married parents would be entitled to such benefits.
Nor do we see the governmental purpose in not affording the child of a same-sex
parent, who is a volunteer firefighter or first-aid responder, tuition assistance when the
children of married parents receive such assistance. There is something distinctly
unfair about the State recognizing the right of same-sex couples to raise natural and
adopted children and placing foster children with those couples, and yet denying those
children the financial and social benefits and privileges available to children in
heterosexual households.”).
151
N.Y. CONST. art. 1, § 11.
152
Hernandez, 855 N.E.2d at 7.
153
N.Y. CONST. art. 1, § 11.
154
See supra Part III.
155
Hernandez, 855 N.E.2d at 10.
2008]
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natural children of the couple.156 This presumption then
immediately engenders the right of the child to draw certain
responsibilities from those parents. Therefore, the flow of the
rights to the child is transitive: if marriage, then legitimacy; if
legitimacy, then rights. Without marriage rights for the
parents, a child cannot derive benefits from a non-birth-giving
partner without a long and costly adoption process. This
burdens the child in a way that a child legitimized by married
parents is not. While the marriage statute does not
discriminate on the basis of legitimacy directly, by determining
that marital children get one benefit and nonmarital children
another, it forcibly classifies certain children into the category
of illegitimate when the law prohibits those children’s parents
from marrying each other.157 The marriage law, more than
drawing distinctions between legitimate and illegitimate
children, creates these distinctions of illegitimacy that would
not otherwise exist. These distinctions carry with them what
the Supreme Court called a “condemnation on the head of an
infant [that] is illogical and unjust.”158 While this type of lawcreated illegitimacy has never been considered by any court,
the inescapable deprivation of rights faced by the children of
gay parents is contrary to the policies looked to previously by
the Supreme Court in ruling that questions of legitimacy
deserved intermediate scrutiny.159 For this reason, coupled with
New York’s history of supporting unique family structures,160 a
court might rule that a child’s equal protection claim warrants
intermediate review.
2. Applying the Standard
If a New York court applied the intermediate standard
of review to a challenge of the law on illegitimacy grounds, any
law barring gay marriage would have to be proven
substantially related to an important government objective.161
156
N.Y. DOM. REL. L. § 24(1) (1969).
It is a standard evidentiary principle that “[t]here is a presumption that a
child born in wedlock, that is, while the mother was united with a husband in
marriage . . . is legitimate.” 46 N.Y. JUR. 2D, Domestic Relations § 843. Therefore, the
opposite must be true—a child born to unwed parents is presumed illegitimate.
158
Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972).
159
See supra Part III.
160
See N.Y. COMP. CODES R. & REGS. tit. 18 § 421.16(h)(2) (2007); Braschi v.
Stahl Assocs. Co., 543 N.E.2d 49, 53-54 (N.Y. 1989).
161
Clark v. Jeter, 486 U.S. 456, 461 (1988).
157
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The Court of Appeals’ analysis in Hernandez would thereby
recoil upon itself. In Hernandez, the court enumerated two
important government objectives believed to be at the core of
the marriage law’s distinction between homosexual and
heterosexual couples: promotion of procreation and promotion
of dual sex parenting.162
Despite the first proffered motive, the promotion of
childbirth may be undermined by forbidding gay marriage.
Because lesbian couples without the benefit of marriage do not
enjoy the advantages of presumed dual parentage, these
couples might decide to forego plans to conceive using
alternative reproductive measures. Deterring homosexuals
from conceiving children might achieve the desired result of
promoting dual sex parenting, but such an effort ignores the
reality of the same-sex parenting already in place in the United
States.163 Simply because the legislature may want to increase
the number of children being raised by both a mother and a
father, it cannot wash away the inherent federal constitutional
right of homosexual Americans to procreate.164 The state cannot
pursue its objective in opposition to rights guaranteed at the
federal level.165 Homosexual women in this country can, and
will, continue to have children, meaning that children will in
fact be raised by same-sex parents. The state would essentially
have to claim that treating similarly situated children
differently is substantially related to discouraging Americans
from exercising their fundamental right to procreate. It seems
unlikely that any court would hold that state equal protection
rights can be legislated around in order to deter people from
exercising a fundamental right protected by the Federal Due
Process Clause.166 Therefore, if held to the intermediate
standard of review, it appears plausible that a child’s equal
protection claim could invalidate anti-gay marriage legislation,
if the government cannot offer more important objectives than
those relied upon in Hernandez.
162
164
See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).
165
U.S. CONST. art. VI § 2 (“This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof; and all Treaties made, or which shall
be made, under the Authority of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.”).
166
See Skinner, 316 U.S. at 541.
163
2008]
C.
721
The Benefit of a Child’s Equal Protection Challenge—
Reframing the Social Debate
An equal protection challenge brought by a child might
also be successful for non-legal reasons. Specifically, a child’s
argument that she deserves an equal opportunity to be
legitimized by her gay parents, in the same way her peers born
to married heterosexual parents are already legitimized, could
create a shift in the social and moral framework of the gay
marriage debate.
To date, the debate over gay marriage in the public
square has been largely cantankerous. The opponents of gay
marriage unabashedly proclaim “that marriage is between a
man and a woman, as God and nature intended.”167 These antigay marriage advocates often cite religious and moral
convictions for the basis of their firmly held beliefs.168 On the
other side, advocates of gay marriage, often feeling personally
attacked, resort to oversimplified name calling, for example,
calling anti-gay marriage advocates “homophobic bigots”
(especially common in the internet “blogosphere”).169 Too often
there seems to be little common ground to be found.
However, one would be hard pressed to find an
individual who does not want all children to receive adequate
care. In the United States there is an increasing incidence of
children being raised in single-family homes as well as a
corresponding incidence of increased divorce.170 And while there
are those who undoubtedly disapprove of homosexual couples
raising children,171 it is an unalterable reality that gay couples
are raising children172 and that all Americas have a right to
procreate if they so chose.173 So the new question, in a debate
over children’s equal protection rights, would be “How can the
167
Pat Buchanan, Time for a New Boston Tea Party, in SAME-SEX MARRIAGE:
THE MORAL AND LEGAL DEBATE 85, 85 (Robert M. Baird & Stuart E. Rosenbaum eds.,
2d ed. 2004).
168
See, e.g., PETER SPRIGG, OUTRAGE: HOW GAY ACTIVISTS AND LIBERAL
JUDGES ARE TRASHING DEMOCRACY TO REDEFINE MARRIAGE 112-17 (2004).
169
See, e.g., Posting of Pam Spaulding to Pamspaulding.com, http://
www.pamspaulding.com/weblog/2004_11_01_pamspaulding_archive.html (last visited
Oct. 18, 2007) (on file with author) (disparaging conservative stalwart Phil Burress for
his support of Ohio’s gay marriage ban).
170
NAT’L RESEARCH COUNCIL, WHO CARES FOR AMERICA’S CHILDREN? 22
(Cheryl D. Hayes et al. eds., 1990).
171
172
See supra Part IV.A.
173
See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).
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state best accommodate the needs of children raised by gay
parents who deserve the benefits of legitimacy and dual
parentage?” One unmistakable way to give children those
benefits is by allowing their parents to marry.174 By framing the
debate in these terms, the focus shifts to the rights of children
with whom no one can possibly find moral fault. If the debate
were to move in this new direction and gain traction, this nonlegal concept, together with the unique legal posturing of the
proposed equal protection claim, could forever change the gay
marriage debate on both the state and federal levels.
V.
POTENTIAL FEDERAL IMPLICATIONS OF A CHILD’S
EQUAL PROTECTION CHALLENGE
If a state like New York were to entertain both the
aforementioned policy goals and the premise of invalidating its
gay marriage ban based on Equal Protection claims raised by
the children of homosexual couples, it would undoubtedly open
a new wave of speculation regarding gay marriage and the
Federal Constitution. To date, at least twenty-six states have
added amendments to their state constitutions which serve to
effectively preclude gay marriage.175 In addition, the Federal
Defense of Marriage Act gives each state the right to refuse to
recognize marriages sanctioned by other states.176 Regardless,
174
See supra Part IV.B.
For a detailed state-by-state list, including voting results, of all anti-gay
marriage amendments enacted through 2004, see Baker, supra note 74, at 239-42.
Additionally, seven states passed amendments in the most recent
midterm election on November 7, 2006. See Will Sullivan, Voters Ban Gay Marriage,
Back Minimum Wage, U.S. NEWS AND WORLD REPORTS, available at
http://www.usnews.com/usnews/news/articles/061108/8ballot.htm (last visited Oct. 14,
2007). For a complete, though unofficial, breakdown of the status of gay marriage in all
fifty U.S. states, see Same-Sex Marriage Status in the United States by Statute,
http://en.wikipedia.org/wiki/List_of_state_laws_on_same-sex_unions (last visited Oct.
14, 2007).
In addition to state constitutional amendments, some have proposed an
amendment to the Federal Constitution that would define marriage as only occurring
between one man and one woman. See Christopher Wolfe, Why the Federal Marriage
Amendment Is Necessary, 42 SAN DIEGO L. REV. 895, 895 (2005). However, even the
amendment’s proponents do not believe its passage is likely, if only because amending
the Constitution is such an arduous a task. Id.
176
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (codified at 1
U.S.C. § 7, 28 U.S.C. § 1738C). Its two separate statutory provisions follow:
175
In determining the meaning of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word “marriage” means only a legal union
between one man and one woman as husband and wife, and the word
2008]
723
under the Supremacy Clause, no state constitution may offend
the Federal Constitution.177 Therefore, if a state like New York
adopted the view that a ban on gay marriage violated equal
protection by drawing distinctions based on the forced
illegitimacy of the children born to gay couples, it would be
inevitable that a similar claim would be brought in federal
court in an attempt to convince the Supreme Court to adopt
this view as well. If successful, a single lawsuit could force
every state constitutional amendment banning gay marriage to
be reviewed under intermediate scrutiny and possibly eradicate
them all.
However, because not all anti-gay marriage amendments are worded identically, the effects of a child’s successful
Equal Protection claim would be felt differently state by state.
To understand this differentiation it is necessary to classify the
various state amendments and analyze each permutation
accordingly. In his article, “Status, Substance, and Structure,”
Joshua Baker considered each of the state marriage
amendments in place as of 2005.178 The framework he proposes
classifies them into three distinct types: status amendments,
substance amendments, and structure amendments.179 Each
type of amendment would likely have its own unique strengths
and weaknesses when held to the test of intermediate scrutiny.
Therefore, each of these three types of amendments will be
addressed in turn.
To begin, the so-called substance amendments have
been adopted by at least ten states.180 The typical text of a
substance amendment reads: “Marriage in this state consists
“spouse” refers only to a person of the opposite sex who is a husband or a
wife.
1 U.S.C. § 7 (2000).
No State, territory, or possession of the United States, or Indian tribe, shall
be required to give effect to any public act, record, or judicial proceeding of
any other State, territory, possession, or tribe respecting a relationship
between persons of the same sex that is treated as a marriage under the laws
of such other State, territory, possession, or tribe, or a right or claim arising
from such relationship.
28 U.S.C. § 1738C (2000).
177
See, e.g., Romer v. Evans, 517 U.S. 620, 633 (1996) (striking down on equal
protection grounds Colorado’s constitutional amendment prohibiting state legislation
enacted to protect homosexuals from discrimination); see also U.S. CONST. art. VI, § 2.
178
See Baker, supra note 74, at 223-37.
179
Id. at 222.
180
Arkansas, Georgia, Kentucky, Louisiana, Michigan, Nebraska, North
Dakota, Ohio, Oklahoma, and Utah. Id. at 240-42.
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only of the union between a man and a woman. No other
relationship shall be recognized as a marriage by this state or
its political subdivisions, or given a substantially equivalent
legal status.”181 These amendments are particularly troubling
in the context of an equal protection challenge made by a child.
The language precluding the possibility of an “equivalent legal
status” is destructive because it leaves no opening for any of
the rights associated with marriage, including the presumption
of legitimacy, to become attached to a homosexual relationship.
The complete barring of equivalent status leaves these
amendments open to possible federal repeal if challenged by a
child bringing a claim under the Equal Protection Clause of the
Federal Constitution.182
The other two types of amendments are similar to each
other and, due to more benign wording, would presumably
stand a better chance of surviving the Equal Protection
challenge proposed herein. So-called status amendments
typically read, “Only marriage between a man and a woman is
valid or recognized in this state.”183 Meanwhile, Hawaii’s
amendment, the only so-called structural amendment, simply
vests the power to define marriage exclusively with the
legislature.184 These two amendment forms, while furthering
the governmental interest in protecting traditional marriage,
still leave open the possibility that a child of gay parents could
be legitimized by some legislative action other than conferral of
full marriage rights.185 These types of amendments stand a
better chance than the substance amendments of surviving a
successful Equal Protection claim brought by a child of gay
parents.186 However, allowing gay parents to legitimize children
born during their partnership would clearly necessitate the
creation of some form of status equivalent to marriage for
181
Id. at 239.
“No State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. CONST. amend. XIV, § 1.
The Equal Protection Clause is reverse incorporated against the federal
government under the Due Process Clause of the Federal Constitution. See Bolling v.
Sharpe, 347 U.S. 497 (1954).
183
Baker, supra note 74, at 239.
184
HAW. CONST. art. 1, § 23.
185
See infra note 193 and accompanying text (noting some possible remedies,
short of full gay marriage rights, that may help rectify the disparate treatment faced
by children raised in households with same-sex parents).
186
For this reason, opponents of gay marriage should take note that the more
malleable status and structure amendments may be preferable in the future due to
their ability to weather various types of constitutional challenges.
182
2008]
725
homosexual relationships. Since this may not happen in any
particular state, a court might find that the potential harm to
the illegitimate children of gay parents is disproportionate
to the government’s interest enshrined in these amendments.
If a child could successfully bring an Equal Protection claim
invalidating a state anti-gay marriage law, all these
constitutional amendments, including the substance and
structure amendments, may be susceptible to judicial repeal.
VI.
CONCLUSION
The gay marriage debate shows no signs of fading from
the public consciousness.187 The bulk of the case law on this
issue has been brought by gay couples on their own behalf with
varying success188 and with a considerable amount of
backlash.189 Today there is no shortage of industrious lawyers
advocating on behalf of homosexual couples across the
country.190 And with courts continuing to focus on the nexus
between marriage and childrearing,191 it seems likely that some
lawyer seeking a unique challenge will try her hand at arguing
a claim similar to the one described herein.192 For these
reasons, a claim to invalidate anti-gay marriage laws and
amendments brought by a child of gay parents seems
inevitable.
For proponents of gay marriage, the most logical
approach will be to attempt to cloak the question in the clothes
of legitimacy in order to take advantage of intermediate
scrutiny review. For opponents of gay marriage, this approach
will raise new concerns. There are other potential ways to
confer legitimacy on children without the need for marriage, for
example, through pre-birth decrees and the little-known
187
See, e.g., KGO-TV/DT, abc7news.com, Gay Marriage Cases Moving to State
Supreme Court (Nov. 7, 2006), http://abclocal.go.com/kgo/story?section=news&id=
4738006 (noting that the California Supreme Court is preparing to hear its own round
of challenges to domestic partnerships).
188
See supra Part II.
189
See generally Ball, supra note 75; Baker, supra note 74.
190
See, e.g., Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 946-7 (Mass.
2003) (naming approximately fifty attorneys who worked to complete over twenty-five
briefs for submission to the Massachusetts Supreme Court in reference to the
Goodridge case alone).
191
See supra Part II.
192
See supra Part IV.
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doctrine of parent by estoppel.193 These obscure techniques for
bestowing expanded parent-to-child rights could be used more
frequently and codified into law to lessen the harm caused to
the children of gay parents born without the presumption of
legitimacy. However, social conservatives at odds with gay
marriage may find themselves uneasy about facilitating gay
parentage by eliminating cross-adoption costs in the interest of
establishing dual parentage for the children of gay couples.194
Moreover, full marriage rights for gay parents seem to be the
most direct way to ensure the full flow of marital benefits to
the thousands of children being raised in gay households.
If a child brings the Equal Protection claims described
herein, it is likely that the new battleground of the gay
marriage war will be over the amendment of state laws
concerning the presumption of legitimacy and the narrow
tailoring of all gay marriage-related constitutional amendments
and legislation.195 Such a challenge would also likely reopen the
debate over a federal constitutional amendment.196
In the meantime, for the sake of the children, both sides
of the debate should be prepared to do whatever is necessary to
provide what is best for all children, regardless of who their
parents are. Gay marriage is not only about gay rights, but also
family rights: the rights of parents to claim their children as
193
See Osbourne, supra note 102, at 371-89 (discussing various child custody
options open to gay parents including pre-birth decrees and parent by estoppel).
Parent by estoppel is a fascinating concept:
According to the ALI Principles, a parent by estoppel is one who, although
not a biological or adoptive parent:
[L]ived with the child since the child’s birth, holding out and accepting full
and permanent responsibility as a parent, as part of a prior co-parenting
agreement with the child’s legal parent . . . to raise a child together each with
full parental rights and responsibilities, when the court finds that recognition
of the individual as a parent is in the child’s best interests; or
[L]ived with the child for at least two years, holding out and accepting full
and permanent responsibilities as a parent, pursuant to an agreement with
the child’s parent . . ., when the court finds that recognition of the individual
as a parent is in the child’s best interests.
Once a co-parent meets these circumstantial requirements of parent by
estoppel, the co-parent has the rights and privileges of a legal parent,
including standing to bring an action for custody.
Id. at 389.
194
See supra Part IV.C (discussing the moral and religious objection to gay
marriage).
195
See supra Part V (noting the differences between status, substance, and
structural amendments with regard to constitutional analysis).
196
2008]
727
their own and the rights of children to do the same with their
parents. The gay marriage debate is already fourteen years old
and counting, but the kids have yet to have their say.
S.J. Barrett†
†
J.D. Candidate, 2008, Brooklyn Law School; B.A., Brandeis University.
Thanks to the Brooklyn Law Review staff, particularly Bradley Benedict, Bettina
Chin, and Elizabeth Johnson, for their efforts in readying this Note for publication.
Special thanks to Jorgelina Foglietta for her constant support. This Note is dedicated
to my parents, James and Elaine Barrett, to whom I owe all my opportunities and
success in life.
Defining Fashion
INTERPRETING THE SCOPE OF THE
DESIGN PIRACY PROHIBITION ACT
I.
INTRODUCTION
At the 2006 Academy Awards Show, actress Felicity
Huffman wore a black gown created by twenty-seven-year-old
fashion designer Zac Posen.1 Earlier that year, her television
show co-star, Marcia Cross, wore a $3,800 coral dress by
emerging designer Marc Bouwer to the Golden Globe Awards.2
Within weeks of the two award shows, copies of both dresses
were being sold in department stores, at a fraction of their
original prices, by manufacturers that specialize in creating
“knockoffs” of designer dresses worn by celebrities on the red
carpet.3 While these manufacturers flourish,4 the emerging
designers behind the original gowns are operating their
businesses at a loss.5 Although it may seem unfair that retail
companies exploit the design investment of struggling young
designers by copying their works, the practice is entirely legal
today.6
1
Design Piracy Prohibition Act: Hearing on H.R. 5055 Before the Subcomm.
on Courts, the Internet and Intellectual Property, 109th Cong. 3, 12 (2006) [hereinafter
Hearings] (statement of Jeffrey Banks, fashion designer); Ruth La Ferla, Night of a
Thousand Knockoffs, N.Y. TIMES, Mar. 9, 2006, at G11.
2
Anne Bratskeir, The Foldinspiring Dresses: Pathway to the Prom,
NEWSDAY, May 18, 2006, at A42.
3
Id. The dress copied from Bouwer’s design sold for less than $300. Id.
4
See La Ferla, supra note 1 (noting the proliferation of companies that
specialize in “cranking out replicas” of dresses worn by celebrities to the Academy
Awards show, with sales of such apparel totaling around $300 million a year).
5
Teri Agins, Designer Can Generate Buzz But Not Profits, STARTUP J.,
WALL ST. J. ONLINE (Wall St. J. Cent. for Entrepreneurs) (Sept. 19, 2005), http://
www.startupjournal.com/runbusiness/survival/20050919-agins.html (reporting on the
“new generation of rising fashion stars struggling to follow the path of financial
success” and noting the difficulties of turning a profit in the high-end fashion industry,
in which designers cannot profit from economies of scale since only a relatively small
number of garments are produced per design).
6
For a discussion of the current lack of legal protection against the
unauthorized copying of fashion designs, see infra Part II.A.
729
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The current copyright law, governed by the Copyright
Act of 1976, does not explicitly protect “fashion,” although the
Act does provide protection for “pictorial, graphic and
sculptural works,”7 so long as the works are not “useful
article[s].”8 Nor does current copyright law protect “design,”
with the exception of the Architectural Works Copyright
Protection Act of 1990,9 which provides copyright protection for
architectural designs; the Semiconductor Chip Protection Act,10
which provides protection for semiconductor chips; and the
Vessel Hull Design Protection Act of 1998 (“VHDPA”), a
recently enacted amendment to Title 17 that provides
protection for the designs of vessel hulls.11
To close what appears to be a gap in the scope of
copyright protection, on March 30, 2006, U.S. Representative
Robert Goodlatte introduced the Design Piracy Prohibition Act
(“DPPA”), amending Title 17 to provide sui generis copyright
protection for fashion design.12 Senator Charles Schumer
introduced the Bill in the Senate on August 2, 2007.13 Under
the terms of the DPPA, the VHDPA would be amended to
include protection for fashion designs in addition to the vessel
7
17 U.S.C. § 102(a) (2000). “‘Pictorial, graphic, and sculptural works’
include two-dimensional and three-dimensional works of fine, graphic, and applied art,
photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and
technical drawings, including architectural plans.” Id. §101.
8
Id. § 113; see infra notes 28-33 and accompanying text. Protection has been
provided to a broad range of works, ranging from portrait photographs, Burrow-Giles
Lithographic Co. v. Sarony, 111 U.S. 53, 54-55 (1884), to real estate ownership maps,
Mason v. Montgomery Data, 967 F.2d 135, 135 (5th Cir. 1992), to statuettes of dancers
used as bases of table lamps, Mazer v. Stein, 347 U.S. 201, 202, 213-14 (1954).
9
17 U.S.C. § 102(a)(8) (2000).
10
Id. § 901-914.
11
Id. §1301. The VHDPA was enacted in response to the Supreme Court’s
decision in Bonito Boats v. Thunder Craft Boats, in which the designer of a fiberglass
recreational boat unsuccessfully sought redress for the alleged unlawful duplication of
the boat’s hull design under a Florida statute that prohibited copying another’s vessel
design for commercial purposes without consent. 489 U.S. 141, 143 (1989). The Court
invalidated the Florida statute on the grounds of federal preemption. Id. at 145. The
VHDPA defines “vessel” as a “craft . . . designed and capable of independently steering
a course on or through water through its own means of propulsion; and . . . designed
and capable of carrying and transporting one or more passengers.” 17 U.S.C.
§ 1301(b)(3) (2000). A “hull” is defined as “the frame or body of a vessel, including the
deck of a vessel, exclusive of masts, sails, yards, and rigging.” Id. § 1301(b)(4).
12
Design Piracy Prohibition Act, H.R. 5055, 109th Cong. (2d Sess. 2006);
Goodlatte Introduces Legislation Granting Protection to Fashion Designs, 71 PAT.,
TRADEMARK & COPYRIGHT J. 615, 615 (2006).
13
Design Piracy Prohibition Act, S. 1957, 110th Cong. (2007). References
throughout this Note cite to H.R. 5055, the bill introduced in the House of
Representatives; however, since the two bills are identical the analysis applies equally
to S. 1957, the bill introduced in the Senate.
2008]
DEFINING FASHION
731
hull designs currently protected under the Act.14 “Fashion
design” is defined under the proposed amendment as “the
appearance as a whole of an article of apparel, including its
ornamentation.”15 The Bill further specifies that “[t]he term
‘apparel’ means . . . an article of men’s, women’s, or children’s
clothing, including undergarments, outerwear, gloves,
footwear, and headgear; handbags, purses, and tote bags; belts;
and eyeglass frames.”16 As of this writing, Congress has not yet
voted on the DPPA.
The Bill, however, seems to raise more questions than it
answers. For example, what constitutes “fashion design” under
the DPPA? What constitutes “apparel”? While the Bill purports
to define these terms, there remains a risk that the legislation,
if interpreted broadly, will protect too much in light of its
purpose.17 At the same time, there is also a risk that, if
interpreted narrowly, the legislation will not cover enough—
that it will miss some items that should be protected.18 If the
Bill is enacted, courts will need to undertake a case-by-case
analysis to determine whether a given item constitutes a
“fashion design” under the legislation. This case-by-case
analysis will lead to unpredictable outcomes. For example, one
court might take a narrow approach to interpreting the
legislative language by protecting a designer’s rainboots as
“footwear,” but denying protection to the same designer’s
umbrellas because “umbrellas” are not explicitly listed under
the definition of “apparel.”19 Another court might take a
14
H.R. 5055.
Id. § 1.
16
Id.
17
See infra Part III.
18
See infra Part III. It is not clear whether from a policy perspective fashion
design should be protected at all. Commentators have expressed mixed opinions about
the effect copyright protection would have on the fashion industry. See, e.g., Jonathan
M. Barnett, Shopping for Gucci on Canal Street: Reflections on Status Consumption,
Intellectual Property, and the Incentive Thesis, 91 VA. L. REV. 1381, 1422 (2005)
(questioning “the assumption that counterfeiting unambiguously harms incentives to
invest in the fashion-goods industry by depriving producers of a portion of their
investment proceeds”); Anne Theodore Briggs, Hung Out to Dry: Clothing Design
Protection Pitfalls in United States Law, 24 HASTINGS COMM. & ENT. L.J., 169, 171
(2002) (arguing that “the enactment of clothing design protection laws would benefit
both U.S. consumers and clothing designers”); Safia A. Nurbhai, Note, Style Piracy
Revisited, 10 J.L. & POL’Y, 489, 494 (2002) (recommending that “Congress extend the
boundaries of copyright protection . . . to reward the efforts of fashion designers”). This
Note will not address the normative question of whether fashion should be copyrighted,
but rather will examine the ways courts may interpret the DPPA if it is enacted into
law.
19
H.R. 5055; see infra note 183 and accompanying text.
15
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[Vol. 73:2
broader approach when interpreting the legislation to decide
that although a man’s wallet is not on the list of items defining
“apparel,” it is nevertheless covered under the statute’s
provision for accessories.20 Such different treatment of the
designer umbrella and the wallet would be arbitrary and
unfair. Moreover, if the court in either scenario had taken the
other court’s interpretive approach, the outcome would likely
be different: the umbrella may have received protection under
the second court’s broad approach, and the wallet may not have
received protection under the first court’s narrow approach. It
is difficult for litigants to predict how a given court will
interpret the statute with regard to their specific case.
This Note will therefore examine the potential problems
relating to the scope of the legislation and the various
approaches courts will likely take in interpreting the term
“fashion design” if the Bill is enacted into law. Part II will
review the background of the DPPA, including the current
state of copyright law protection for fashion design. It will
provide a brief overview of the fashion industry, as well as the
history and purpose of the proposed legislation. Part III will
suggest that there are significant risks that the proposed
legislation will be interpreted in ways that are both overinclusive and under-inclusive in light of its purpose. Part IV
will address the various approaches courts may take in
interpreting the legislation. Part V will discuss the likely
outcomes under each approach. Part VI will predict that courts
will use a variety of interpretive approaches in any given case,
and will offer suggestions as to how Congress can provide
courts with greater guidance in interpreting the statute so that
judicial outcomes under the legislation will be more predictable
and consistent with its purpose.
II.
BACKGROUND OF THE DPPA
Currently, there is minimal copyright protection for
fashion and designers face what are often insurmountable
hurdles in obtaining protection for their designs.21 The lack of
legal protection is greatly reflected in the fashion industry, in
which there is a substantial amount of copying within and
between various parts of the industry.22 In response to this
20
21
22
See infra Part IV.C.3.
2008]
DEFINING FASHION
733
state of affairs, the DPPA was introduced to protect fashion
designers from piracy.23
A.
Copyright Protection for Fashion: The Current State of
the Law
At present, fashion designers have practically no
redress in the courts if someone copies their designs, as fashion
designs are rarely protected by copyright law or any other area
of intellectual property law.24 The current Copyright Act seems
to sweep broadly, providing protection for “original works of
authorship fixed in any tangible medium of expression”25
and stipulating a list of categories of “works of authorship”
subject to copyright protection.26 While neither “fashion” nor
“design” is included on that list, clothing apparel would seem
to fall within the “pictorial, graphic and sculptural works”27
category. However, the Act specifically limits the scope of
copyright protection under this category, providing that
designs of “useful articles” are not protected.28 “Useful articles”
are works that have “an intrinsic utilitarian function that is
not merely to portray the appearance of the article or to
23
See infra Part II.C.
See generally Briggs, supra note 18, at 170-71 (outlining “the shortcomings
in current patent, copyright, and trademark laws with respect to clothing designs”);
Samantha L. Hetherington, Fashion Runways Are No Longer the Public Domain:
Applying the Common Law Right of Publicity to Haute Couture Fashion Design, 24
HASTINGS COMM. & ENT. L.J. 43, 44 (2001) (“Under present United States intellectual
property law, clothing design is not protected by federal copyright, trademark/trade
dress, or patent law, nor is it protected by any state intellectual property regime.”);
S. Priya Bharathi, Comment, There Is More Than One Way to Skin a Copycat: The
Emergence of Trade Dress to Combat Design Piracy of Fashion Works, 27 TEX. TECH L.
REV. 1667, 1672 (1996) (noting that current focus on copyright protection for fashion
design is “due to the ineffectiveness of other bodies of law in handling the problem”);
Julie P. Tsai, Note, Fashioning Protection: A Note on the Protection of Fashion Designs
in the United States, 9 LEWIS & CLARK L. REV. 447, 452 (2005) (providing overview of
trademark, patent, and copyright law and discussing how these areas of the law “are
currently problematic when applied to protection of fashion designs”).
25
17 U.S.C. § 102(a) (2000).
26
Id. § 102(a) (“Works of authorship include the following categories: (1)
literary works; (2) musical works . . .; (3) dramatic works . . .; (4) pantomimes and
choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures
and other audiovisual works; (7) sound recordings; and (8) architectural works.”).
27
Id.
28
Id. § 101(7) (“[T]he design of a useful article, as defined in this section,
shall be considered a pictorial, graphic, or sculptural work only if, and only to the
extent that, such design incorporates pictorial, graphic, or sculptural features that can
be identified separately from, and are capable of existing independently of, the
utilitarian aspects of the article.”); see 18 AM. JUR. 2D Copyright and Literary Property
§ 31.
24
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portray information.”29 For example, at least one court has held
that automobile hubcaps are not protected as “sculptural”
works because hubcaps are useful articles.30 An exception is
made for aspects of a work that “can be identified separately
from, and are capable of existing independently of, the
utilitarian aspects of the article.”31 In the case of the hubcaps,
the court found that the ornamental aspects of the wheel
coverings could not be separated from their utilitarian
aspects.32 These provisions of the Copyright Act, commonly
referred to as the “useful articles doctrine,” reflect Congress’
desire to restrict from copyright protection articles that serve
utilitarian or functional purposes.33
Generally, courts have considered clothing to be “useful
articles” and therefore not protected by the Copyright Act.34
Although in a few fringe cases designers have attempted to
bypass the useful articles doctrine by arguing that the item in
question was actually art (rather than clothing),35 or that the
aesthetic elements of the item in question were separable from
the useful quality of the item,36 the results of these rare cases
29
30
Id.
Norris Indus., Inc. v. Int’l Tel. & Tel. Corp., 696 F.2d 918, 923-24 (11th Cir.
1983).
31
17 U.S.C. § 101 (2000).
Norris, 696 F.2d at 923.
33
See Briggs, supra note 18, at 181. The rationale is that these types of
works are more valuable to the public and so should not be given the same monopolylike protection as other copyrighted works. Useful works are more properly the subject
of patent protection. Id. at 181-82.
34
See, e.g., Lim v. Green, 243 F.3d 548, 2000 WL 1693680 *1 (9th Cir. 2000)
(“[I]t has long been established that clothing designs are not subject to copyright
protection.”); Whimsicality, Inc. v. Rubie’s Costume Co., Inc., 891 F.2d 452, 455 (2d Cir.
1989) (“We have long held that clothes, as useful articles, are not copyrightable.”);
Morris v. Buffalo Chips Bootery, 160 F. Supp. 2d 718, 720 (S.D.N.Y. 2001) (“[I]tems of
clothing are, as a general rule, uncopyrightable ‘useful articles.’”); Eve of Milady v.
Impression Bridal, Inc., 957 F. Supp 484, 489 (S.D.N.Y. 1997) (“It is firmly established
in the Second Circuit that clothes are not copyrightable.”).
35
In Poe v. Missing Persons, the plaintiff, “an artist and fashion designer
whose clothing styles are recognized in the fashion world,” argued that his creation was
a “three-dimensional work of art in primarily flexible clear-vinyl and covered rock
media,” a sculpture that qualified for copyright protection. 745 F.2d 1238, 1240 (9th
Cir. 1984). The defendant argued that the item was actually a bathing suit, which
served a useful purpose. Id. at 1239. The Ninth Circuit recognized that a genuine issue
of material fact existed as to whether the work was a copyrightable piece of art or a
non-copyrightable swimsuit. Id. at 1243. But see Morris, 160 F. Supp. 2d at 720-21
(flatly rejecting plaintiff-designer’s argument that the items in controversy, the leather
But-N Up Vest and Apron Dress, were actually art, not clothing, and therefore subject
to copyright protection).
36
Courts have developed various approaches to determine whether a given
work that contains both aesthetic and utilitarian features constitutes a “useful article”
under the Copyright Act. When the functional part of the work can be physically
32
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DEFINING FASHION
735
are confusing and inconsistent.37 Thus, under current copyright
law, fashion designers face an uphill battle in acquiring
copyright protection for their creations. Because of the useful
articles doctrine their chances for success in infringement
claims are slim.38
B.
The Fashion Industry and Copying
The fashion industry is a distinctive, sprawling and
highly profitable sector of the United States and global
economies, the parameters of which cannot be concisely
defined.39 The industry includes everything from haute couture
separated from the non-functional part of the work, courts will simply recognize
protection in the non-functional part of the work. See, e.g., Mazer v. Stein, 347 U.S.
201, 213-14 (1954). However, when the functional aspect of the work cannot be
physically separated, courts determine whether the non-functional aspect can be
separated conceptually. See, e.g., Kieselstein-Cord v. Accessories by Pearl, Inc., 632
F.2d 989, 994 (2d Cir. 1980). Numerous tests have been suggested for determining
whether non-functional aspects of a work may be conceptually separated from the
overall work as a whole. See, e.g., Brandir Int’l, Inc. v. Cascade Pacific Lumber Co., 834
F.2d 1142, 1145 (2d Cir. 1987); Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d
411, 423 (2d Cir. 1985); Kieselstein-Cord, 632 F.2d at 993. Fashion designer plaintiffs
have succeeded in gaining at least partial copyright protection for their works on
conceptual separability grounds in a handful of cases. Id. (copyright protection
recognized in belt buckles because “[t]he primary ornamental aspect of the . . . buckles
is conceptually separable from their subsidiary utilitarian function”); Animal Fair, Inc.
v. Amfesco Indus., Inc., 620 F. Supp. 175, 177, 187 (D. Minn. 1985) (finding that the
design features of a “slipper resembling a bear’s paw” are conceptually separable from
the utilitarian aspect of the slipper and therefore subject to copyright protection).
37
A number of cases involving the copyrightability of costumes and masks
illustrate the lack of consistency and predictability in these cases. In Nat’l Theme
Productions v. Beck, Inc., the court found that certain costumes (the Tigress, Rabbit In
Hat, Magic Dragon, and Pampered Pup) were copyrightable because their design and
form did not have much to do with their suitability as “apparel.” 696 F. Supp. 1348,
1353 (S.D. Ca. 1988). However, in Whimsicality, Inc. v. Rubie’s Costume Co., 1998 WL
178856, at *2 (E.D.N.Y.), and Whimsicality, Inc. v. Battat, 27 F. Supp. 2d 456, 458, 466
(S.D.N.Y. 1998), the courts declined to recognize copyright protection for similar
costumes (Lion, Bee, Stegosaurus, Frog, Ladybug, Turtle, and Lion); see also Chosun
Int’l, Inc. v. Chrisha Creations, Ltd., 413 F.3d 324, 325-29 (2d Cir. 2005) (remanding
this case addressing copyrightability of plush animal-themed Halloween costumes on
the grounds that the trial court erroneously failed to apply the conceptual separability
analysis because it found the separability tests to be incoherent); Briggs, supra note 18,
at 184 (“This tangled spaghetti of separability tests is confusing and subjective to say
the least.”).
38
See Briggs, supra note 18, at 180-84; Tsai, supra note 24, at 460.
39
See David Bollier & Laurie Racine, Ready to Share: Creativity in Fashion
& Digital Culture, in READY TO SHARE: FASHION & THE OWNERSHIP OF CREATIVITY 29,
39 (David Bollier & Laurie Racine eds., 2006) [hereinafter READY TO SHARE] (“It is
difficult to find reliable numbers to describe the scale and scope of the fashion industry.
It is a sprawling global enterprise consisting of many specialty clusters (apparel,
accessories, fabric, etc.) with many interconnected and irregular players (designers,
manufacturers, merchandisers, marketers, etc.).”); see also Kal Raustiala &
Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in
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design houses,40 such as Chanel and Gucci, to mass-produced
brands of apparel, such as those sold at discount stores, like
Wal-Mart and Target.41 In their article on intellectual property
and fashion design, Kal Raustiala and Christopher Sprigman
provide a helpful overview of the basic structure of the fashion
industry.42 They view the fashion industry through a pyramid
structure with three broad categories: a small “designer”
category at the top, which includes haute couture and, just
below it, designer ready-to-wear;43 a larger “better” fashion
category in the middle, which includes moderately priced
apparel (for example, Banana Republic); and an even larger
“basic” or “commodity” fashion category at the bottom (for
example, Old Navy, Wal-Mart).44 Raustiala and Sprigman
recognize that “[t]he borders between product categories are
indistinct,”45 but generally, “design content” and “design
turnover” are greater toward the top of the pyramid, and price
“increases as one ascends the pyramid.”46 Many fashion
designers design apparel within multiple categories of the
pyramid.47
Within the trend-driven fashion industry, copying and
“referencing” other designers’ work are exceedingly prevalent,
both within and between the categories of the pyramid.48 Some
Fashion Design, 92 VA. L. REV. 1687, 1693 (2006) (“The global fashion industry sells
more than $750 billion of apparel annually.”).
40
“Couture” design houses produce “custom clothing designed almost entirely
for women and sold at very high prices.” Raustiala & Sprigman, supra note 39, at 1693.
41
“There is no such thing as a ‘typical’ fashion enterprise—the sector consists
of a broad spectrum of companies in apparel, textile and accessories ranging from the
high-end couture houses to mass-produced, low-priced commodity goods.” Aram
Sinnreich & Marissa Gluck, Music & Fashion: The Balancing Act Between Creativity
and Control, in READY TO SHARE, supra note 39, at 47, 60.
42
Raustiala & Sprigman, supra note 39, at 1693-95.
43
For definition of “haute couture,” see supra note 40. Designer ready-towear includes prestige collections (e.g., Giorgio Armani, Dolce & Gabbana, Calvin
Klein) and lower-priced bridge collections (e.g., Emporio Armani, D+G, CK Calvin
Klein) of famous designers. Raustiala & Sprigman, supra note 39, at 1693-94.
44
Raustiala & Sprigman, supra note 37, at 1693-94.
45
Id. at 1694 n.11.
46
Id.
47
Id. “For example, Giorgio Armani produces couture apparel, a premium
ready-to-wear collection marketed via its Giorgio Armani label, differentiated bridge
lines marketed via its Armani Collezioni and Emporio Armani brands, and a ‘better
clothing’ line distributed in shopping malls via its Armani Exchange brand.” Id.
48
Winning Ways, Inc. v. Holloway Sportswear Inc., 903 F. Supp. 1457, 1459
(D. Kan. 1995) (“Utilizing competitors’ design features is common practice in the
fashion industry.”); Raustiala & Sprigman, supra note 39, at 1727-28 (“Original ideas
are few, and the existence of fashion trends typically means that many actors copy or
rework the ideas of some originator . . . . Some may originate more than others, but all
2008]
DEFINING FASHION
737
clothing producers directly and intentionally copy the works of
other fashion designers, often marketing the copies at
substantially lower prices.49 Fashion magazines routinely
feature articles instructing readers on where to purchase
“knockoffs” of high-end fashion and couture pieces at prices
well below those of the originals.50 Other clothing producers
more subtlety allude to the works of other designers by
reinterpreting or reinventing existing fashion designs.51 Many
high-end fashion designers themselves admit to reinventing
and elaborating on other designs.52
It is unclear exactly how the prevalence of copying has
affected the fashion industry and specific designers within it.
Designers themselves have a range of views about copying.53
engage in some copying at some point—or, as the industry prefers to call it,
‘referencing.’”); see also Sinnreich & Gluck, supra note 41, at 56 (“Fashion is a chaotic if
highly stratified industry, and the directional flow of aesthetics is now top-down,
bottom-up, and side-to-side. Ideas flow in every direction . . . .”).
49
For example, Allen Schwartz, founder and designer of A.B.S., produces
apparel such as evening gowns closely modeled after the designs of high-end fashion
designers. According to his website, “He is revered and applauded for the extraordinary
job he does of bringing the latest trends to the stores in record time.” A.B.S. by Allen
Schwartz, http://www.absstyle.com (select “About Us” hyperlink) (last visited Mar. 3,
2008). A New York Times journalist has noted that “fashion designers do not design so
much as swipe from fashion industry” while reporting on the popularity amongst elite
fashion designers of a Greenwich Village shop with a large collection of vintage fashion
magazines. Guy Trebay, Ideas & Trends: Fashion Replay; Imitation Is the Mother of
Invention, N.Y. TIMES, July 7, 2002, at 4.
50
Eric Wilson, O.K., Knockoffs, This Is War, N.Y. TIMES, Mar. 30, 2006, at
G1; Raustiala & Sprigman, supra note 39, at 1706-11 (illustrating this phenomenon
with Marie Claire’s regular feature titled “Splurge or Steal”).
51
Some fashion experts argue that no new fashion design is truly unique—
that all new fashion is influenced by prior and existing designs. David Wolfe of the
Doneger Group—a company specializing in “global market trends and merchandising
strategies to the retail and fashion industry,” Doneger Group, http://www.doneger.com/
web/231.htm (last visited Jan. 27, 2007)—claims that “[a]ll fashion designs are merely
rearrangements of existing elements that are used by all designers.” Anandashankar
Mazumdar, Witnesses Clash on Need for Granting Copyright Protection to Fashion
Designs, 72 PAT., TRADEMARK & COPYRIGHT J. 360, 360 (2006).
52
See Trebay, supra note 49 (reporting on various instances of designers
copying other designers: design house Balenciaga copied a vest from designer Kaisik
Yoon’s collection; Marc Jacobs admitted to copying an Oscar de la Renta coat design;
Yves Saint Laurent sued Ralph Lauren, accusing the design house of copying a tuxedo
design; Adolfo copied Coco Chanel; Tom Ford copied Halson; Alexander McQueen
copied Vivienne Westwood; Miuccia Prada copied a Balenciaga coat). As to the
Balenciaga coat, Trebay quotes a photographer saying, “I mean copied it exactly.” Id.;
see also Cathy Horyn, Is Copying Really a Part of the Creative Process? N.Y. TIMES,
Apr. 9, 2002, at B10.
53
Wilson, supra note 50 (citing the National Retail Federation: “There is not
a consensus on this issue [the permissibility of copying in fashion].”); Ben Winograd &
Cheryl Lu-Lien Tan, Can Fashion Be Copyrighted? WALL ST. J., Sept. 11, 2006, at B1
(noting that “designers . . . are hotly debating the issue”).
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Some view it as flattering,54 some find it annoying, offensive, or
just plain wrong,55 while others find it to be an unavoidable
aspect of fashion design.56 Scholars have suggested various
theories about the effects of fashion design piracy on the
United States fashion industry. Some propose that copying is
part of the nature of fashion design,57 the inevitable result of a
trend-driven industry, or that it may even benefit the designers
and the industry as a whole.58 Others argue that copying
reduces designers’ incentives to create new designs (especially
for emerging designers),59 generates inefficiencies in the
industry resulting in higher costs for consumers and lower
profits for designers,60 and threatens the United States’
position in the global fashion industry.61
54
Eric Wilson, Designers Take Legislative Aim at Knockoff Producers, CHI.
TRIB., Apr. 12, 2006, at 6 (noting that for many years “leading designers” have
considered copies of their work the “sincerest form of flattery”); see also Jenifer
Johnston, Bitchiness Takes Centre Stage at Fashion Festival Catwalk: Edinburgh
Matthew Williamson Wows Crowds with Collection, SUNDAY HERALD (Glasgow, UK),
Apr. 30, 2006, at 17 (quoting Matthew Williamson, fashion designer and creative
director of Italian fashion house Pucci, “I think in a way if someone bought a copy or a
design that shows elements of my work it is quite flattering . . . .”).
55
Wilson, supra note 50 (naming offended designers Behnaz Sarafpour,
Diane Von Furtstenberg, Narcisco Rodriguez, and Zac Posen and noting that “leading
designers are acknowledging that inexpensive copies . . . have negatively affected the
luxury business”); Winograd & Tan, supra note 53 (reporting that designer Tracy
Reese’s first thought upon discovering that her design was copied was “Can I sue them
for this?”).
56
For example, designer Jeffrey Chow, whose $1000 gown was copied and
sold for $245 by A.B.S., “sees only futility in trying to fight such copying.” Wilson,
supra note 50. And designer Carmen Marc Valvo reports that he’s “been copied so
much he now shrugs it off when he sees styles that imitate his work. He finds the idea
of legislation ‘insane.’” Winograd & Tan, supra note 53.
57
See, e.g., Bollier & Racine, supra note 39, at 33 (“Fashion . . . always has
been a form of creativity based on lineage. The individual designer may have his own
distinctive talents, but he also participates in a recognized tradition.”).
58
Raustiala & Sprigman, supra note 39, at 1689-92 (noting the “empirical
anomaly” that despite a lack of intellectual property rights, “fashion firms continue to
innovate at a rapid clip,” and advancing the “piracy paradox” theory, in which copying
promotes innovation and benefits the original designers because (1) “the value of
fashion items is partly status-based” and (2) “fashion is cyclical”); Barnett, supra note
18, at 1382 (noting that “the fashion industry appears to sustain robust levels of
investment in new product development even with widespread unauthorized
imitation”).
59
Hearings, supra note 1, at 83 (statement of Professor Susan Scafidi,
Southern Methodist University, noting that “there is strong anecdotal evidence that
design piracy is harmful to the U.S. fashion industry” and describing the “race to the
bottom in terms of price and quality” that designers lose to “knockoff artists”).
60
Professor Scafidi argues that the lack of protection against piracy for
fashion designs “has led to multiple inefficiencies in the development of the U.S.
fashion industry,” including designers bearing the costs of seeking legal remedies by
attempting to stretch trademark, trade dress, and patent law to cover fashion. Id. at
80; see also Briggs, supra note 18, at 210 (suggesting that “with no design protection
2008]
C.
DEFINING FASHION
739
The DPPA and the VHDPA
Against this backdrop of unregulated copying and
conflicting views on the effects of fashion design piracy,
proponents of copyright protection for fashion design, including
high-end designers such as Diane Von Furstenberg, Narcisco
Rodriguez, and Zac Posen, along with the Council of Fashion
Designers of America,62 began lobbying Congress to implement
sui generis copyright protection for fashion design.63 On
March 30, 2006, Representative Goodlatte introduced the
DPPA in the House of Representatives.64 The proposed
legislation would amend the VHDPA, which provides sui
generis design protection for vessel hulls.65
The VHDPA is drafted in a way that makes it relatively
straightforward to add a new category of design to its scope of
protection.66 The statute first sets out broad protection for
“designs” of “useful articles” that are “attractive or distinctive
laws, a designer must act quickly and charge a premium for new designs before the
goods are copied and sold at lesser cost”); Jennifer Mencken, A Design for the Copyright
of Fashion, B.C. INTELL. PROP. & TECH. F. 121201, 45 (1997) (“The denial of copyright
protection in garment designs sanctifies the outright theft of a designer’s creative
work. This threat to marketplace viability actually drives up the cost of designer goods,
resulting in fewer consumers being able to purchase the garments.”).
61
Hearings, supra note 1, at 82 (statement of Professor Susan Scafidi,
Southern Methodist University, noting that “the U.S. can no longer compete with
China and other centers of low-cost production on price alone” and therefore “the future
of the U.S. economy will rest on the ability to develop and protect creative industries,
including fashion design”); Briggs, supra note 18, at 211-12 (“Without action of any
kind toward protection of clothing design, the U.S. risks the further deterioration of its
already struggling apparel industry.”). Perhaps Congress will hold hearings to better
determine the true effect of design piracy on the fashion industry if the Bill moves
forward through the legislative process.
62
“The Council of Fashion Designers of America . . . is a not-for profit trade
association of over 300 of America’s foremost fashion and accessory designers” with a
mission “to advance the status of fashion design as a branch of American art and
culture; to raise its artistic and professional standards; to define a code of ethical
practices of mutual benefit in public and trade relations; and, to promote appreciation
of the fashion arts through leadership in quality and aesthetic discernment.” Council
of Fashion Designers of America, http://www.cfda.com/index.php?option=com_cfda_
content&task=about_the_cfda_display (last visited Feb. 18, 2008).
63
Wilson, supra note 50.
64
Goodlatte Introduces Legislation Granting Protection to Fashion Designs,
supra note 12, at 615. As noted above, Senator Charles E. Schumer (D-NY) introduced
a parallel bill that mirrors H.R. 5055 in the Senate on August 2, 2007. Design Piracy
Prohibition Act, S. 1957, 110th Cong. (2007). See supra note 13 and accompanying text.
65
17 U.S.C. § 1301 (2000). See supra note 11 (discussing the VHDPA).
66
See Pamela Samuelson & Suzanne Scotchmer, The Law and Economics of
Reverse Engineering, 111 YALE L.J., 1575, 1594 n.85 (2002) (“For the moment, the Act
covers only vessel hulls, but some commentators suggest that only minor changes
would be necessary to convert it to a more general intellectual property law to protect
the configuration of manufactured products.”).
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in appearance” so long as they comply with and are subject to
the statute.67 Section 1301(a)(2) then specifies that the designs
protected by the statute include “[t]he design of a vessel hull,
including a plug or mold.”68 Under the DPPA, a subsection
would simply be inserted directly below § 1301(a)(2), under the
“Designs protected” heading, to add “fashion design” to the
subject matter protected.69 In addition, three subsections would
be added to the VHDPA’s “Definitions” section:
(7) A ‘fashion design’ is the appearance as a whole of an article of
apparel, including its ornamentation.
(8) The term ‘design’ includes fashion design, except to the extent
expressly limited to the design of a vessel.
(9) The term ‘apparel’ means –
(A) an article of men’s, women’s, or children’s clothing, including
undergarments, outerwear, gloves, footwear, and headgear; (B)
handbags, purses, and tote bags; (C) belts; and (D) eyeglass
frames.70
Thus, the Bill would simply add “fashion design” to the type of
designs listed as subject to protection under the statute, which
currently includes only the designs of boat hulls, and would
provide a definition of the term to qualify the scope of that
protection.
Moreover, under the proposed legislation, in order to
receive protection a fashion design must be registered with the
Copyright Office within three months after the design is “first
made public.”71 Although the Copyright Office “is responsible
for registering copyright claims submitted by authors or other
copyright claimants,”72 an infringement suit may be brought
even if the Office rejects the application, so long as the
requisite formalities are complied with.73 A valid copyright
registration is only treated by the courts as “prima facie
evidence of the validity of the copyright and the facts stated in
67
17 U.S.C. § 1301(a)(1) (2000) (“The designer or other owner of an original
design of a useful article which makes the article attractive or distinctive in
appearance to the purchasing or using public may secure the protection provided by
this chapter upon complying with and subject to this chapter.”).
68
Id. § 1301(a)(2).
69
Design Piracy Prohibition Act, H.R. 5055, 109th Cong. § 1 (2d Sess. 2006).
70
Id. (paragraph breaks omitted).
71
Id.
72
Reconsideration Procedure, 69 Fed. Reg. 133 (July 13, 2004) (to be codified
at 37 C.F.R. pt. 202, 211, 212).
73
See 17 U.S.C. § 411(a) (2000).
2008]
DEFINING FASHION
741
the certificate.”74 Thus, it is ultimately up to the judiciary to
determine whether an item is subject to the protection of
Title 17 when infringement suits are brought, as the courts
may reverse the Copyright Office’s determination of copyrightability.75
The DPPA is currently only in the early stages of the
legislative process, and thus a fuller legislative record is yet to
be developed.76 The Bill’s preamble simply states that the Bill is
meant “to provide protection for fashion design.”77 But the
justifications advanced by Representative Goodlatte suggest
that the Bill is intended to boost global promotion of the United
States fashion industry, as well as to protect individual fashion
designers, particularly up-and-coming designers, who have
invested heavily in their work, from piracy that may cause
damage to their reputation and financial profitability.78 In his
speech introducing the Bill to the House, Goodlatte emphasized
the short “production life cycle of fashion designers” and
referred to the popularity of fashion designs garnered from “a
fashion show or other event.”79 Short production cycles and
fashion shows are most commonly associated with fashion in
the “designer” category (that is, high-end designers) identified
by Raustiala and Sprigman.80 Moreover, Goodlatte’s arguments
74
Id. § 410(c).
Id.
76
As of this writing, the Bill has been introduced in the House and referred
to the Subcommittee on Courts, the Internet and Intellectual Property. Subcommittee
hearings were held on July 27, 2006. A Bill to Provide Protection for Fashion Design:
Hearing Before the Subcomm. On Courts, the Internet, and Intellectual Prop. on H.R.
5055, 109th Cong. (2006), available at http://judiciary.house.gov/media/pdfs/printers/
109th/28908.pdf. On August 2, 2007, the Bill was introduced in the Senate in identical
form to the House bill, and referred to the Committee on the Judiciary. GovTrack.us,
http://www.govtrack.us/congress/bill.xpd?bill=s110-1957 (last visited Feb. 18, 2008). No
further legislative actions have been taken.
77
78
Upon introducing the bill in the House, Representative Goodlatte, invoking
the United States Constitution, emphasized the need to provide incentives for fashion
designers in order “to maintain America’s position as the world leader in innovation.”
Speech of Hon. Bob Goodlatte to the House of Representatives, Mar. 30, 2006,
available at http://pub.bna.com/ptcj/HR5055remarks.htm. He pointed out that “[m]ost
industrialized nations provide legal protection for fashion designs,” while the United
States does not. Id. In addition to focusing on America’s standing in the global market
of creativity, he also emphasized the need to protect individual designers—their
economic profits as well as their reputations. The current lack of protection, he argued,
“prevents designers in our country from reaping a fair return on their creative
investments.” Id.
79
Id.
80
Raustiala & Sprigman, supra note 39, at 1694 (“Apparel in the designer
categories (couture, designer ready-to-wear apparel, and bridge) is characterized by . . .
faster design turnover. Generally, apparel in the ‘better’ and basic categories . . .
75
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that the legislation is needed to protect the profits and
reputation of designers is most applicable to lesser-known
designers within that category, since more established design
houses are less likely to lose profits or suffer damage to their
reputations when their designs are pirated.81 Testimony from
the hearings and written statements submitted on behalf of the
Bill also support the notion that the legislation’s purpose would
be primarily to protect the fashion designs in the “designer”
category of the fashion pyramid, especially those of young
designers.82 Indeed, many of the Bill’s most ardent supporters
are young, emerging designers,83 while many retailers who
profit from pirated designs oppose it.84
experience slower design change.”). Although, in principle, anyone can hold a fashion
show during New York’s annual fashion week if they are willing to pay for it, “[t]he
anchor brands of American fashion are accommodated first.” Josh Patner, Fashion
Week FAQ: Your Nagging Questions Answered, SLATE, Feb. 7, 2005, http://
www.slate.com/id/2113109.
81
Tsai, supra note 24, at 448 (“As small business owners, new designers are
the most vulnerable to piracy of their designs. . . . Larger businesses realize the
advantage they have over smaller businesses with respect to design piracy.”); Winograd
& Tan, supra note 53 (“[T]he U.S. bill’s supporters say that copying hurts young
designers in particular.”).
82
See Hearings, supra note 1, at 82-83 (statement of Prof. Susan Scafidi)
(“Young designers attempting to establish themselves are particularly vulnerable to
the lack of copyright protection for fashion design, since their names and logos are not
yet recognizable to a broad range of consumers. . . . [T]hey struggle each season to
promote their work and attract customers before their designs are copied by
established competitors.”); Hearings, supra note 1, at 12 (statement of Jeffrey Banks,
fashion designer) (“The famous designer with an established and substantial business
might be able to withstand that assault, but it can absolutely derail the career of a
young designer.”). These arguments have also been made by legal scholars advocating
for stronger intellectual property rights for fashion design. See, e.g., Leslie J. Hagin, A
Comparative Analysis of Copyright Laws Applied to Fashion Works: Renewing the
Proposal for Folding Fashion Works into the United States Copyright Regime, 26 TEX.
INT’L L.J. 341, 366 (1991) (“Copyright protection would most help . . . innovative, yet
unestablished, fashion designers.”); Tsai, supra note 24, at 448 (“Piracy is . . . likely to
be most detrimental to new designers,” who are also “most vulnerable to piracy of their
designs.”).
83
Wilson, supra note 50. Zac Posen, a member of the Council of Fashion
Designers of America, is only 27. Cathy Horyn, Fashion; Romance is in the Spotlight
as Zac Posen Comes of Age, N.Y. TIMES, Sept. 16, 2006, at B7. Also lobbying for
the legislation is Gela Taylor, designer for Juicy Couture. Council of Fashion Designers
of America, http://www.cfda.com/index.php?option=com_cfda_content&task=about_the_
cfda_display&category_id=58 (last visited Mar. 30, 2008). Juicy Couture is a fashion
line that has recently taken off and is growing rapidly since the company was
purchased by Liz Claiborne, Inc. in March 2003 as part of its “strategy of buying
fledgling retailers’ brands.” Christopher Palmeri and Nanette Byrnes, To Live and
Thrive in L.A.: Juicy Couture’s Founders are Spinning Gold from Valley Girl “Casual
Chic,” BUS. WEEK ONLINE, Mar. 28, 2005, http://www.businessweek.com/magazine/
content/05_13/b3926094.htm; see also Rose Apodaca, On the Right Track: Juicy
Couture, WOMEN’S WEAR DAILY, Mar. 27, 2006, at 38B.
84
“Retailers have been concerned that they would be held liable as infringers
if a registered design becomes part of their goods without the authority of the owner[.]
2008]
DEFINING FASHION
743
Therefore, in order to predict the ways in which courts
may interpret the DPPA, and what is meant by the term
“fashion design,” it is necessary to keep in mind that the Bill
has been introduced largely to provide protection for top-tier
designers, especially emerging designers, at a time when
apparel receives little to no protection under current copyright
law.
III.
POTENTIAL PROBLEMS WITH THE PROPOSED
LEGISLATION
With this background information in mind, would the
proposed legislation, as currently written, effectively achieve
its goal of protecting “fashion design”?85 How would the courts
determine whether a given item falls within the protection of
the proposed legislation? Although at first glance the scope of
the Bill’s protection seems obvious, as most people have an
intuitive understanding of what constitutes “fashion design”
and the meaning of the terms listed under the definition of
“apparel” (for example, “clothing,” “handbags,” and “belts”),86
potential interpretive issues will likely emerge.
On the one hand, the DPPA may be interpreted to
provide copyright protection for too many items—articles that
clearly are “apparel” but that nobody intended to protect.87 For
example, sporting apparel such as skiwear, and protective
clothing such as surgery apparel, could inadvertently fall
within the scope of the Bill if interpreted narrowly, since
technically a ski helmet is a form of “headgear” and surgical
Some manufacturers do not believe that there should be protection because of the
fickleness of public sentiment about fashions and the fear that [free] use of designs as a
basis for newer fashions would be hindered if a fashion design law is enacted.”
Protecting Clothing Designs—Fashion Design Law Proposed, WORLD PAT. &
TRADEMARK NEWS, May 17, 2006, http://wptn.com/Mailing/May_17/details/crights/
notaro.html; see also Briggs, supra note 18, at 208 (noting that many apparel
manufacturers have resisted opportunities for increased design protection in the past).
85
86
Indeed, the Copyright Office has issued a statement endorsing the
legislative language of the Bill, which completely overlooks the potential problems
surrounding the language defining the Bill’s scope. Hearings, supra note 1, 197-98
(statement of U.S. Copyright Office). While the report lauds the administrative aspects
of the copyright scheme (i.e., “term of protection” and “time frame for registration”) it
does not comment on the merits of the definition of the terms “apparel” and “fashion
design.” Id. at 208-12. Moreover, opponents of the Bill have yet to raise the scope issue
as a potential weakness of the proposed legislation. See, e.g., Hearings, supra note 1,
85-89 (statement of Prof. Christopher Sprigman); Hearings, supra note 1, 13-15
(statement of David Wolfe, Creative Director, The Doneger Group).
87
See supra Part II.C for purpose of the legislation.
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apparel “clothes” its wearers.88 As such, cheap, mass-produced
items from the lower categories of the fashion pyramid that do
not entail much investment of time or energy from the designer
could conceivably receive protection. Moreover, these items are
not likely to increase the stature of the United States as an
innovator in the global fashion industry. Will courts recognize
copyright protection in these types of items if they satisfy the
other requirements of the legislation?89 Where will courts draw
the line as to what constitutes apparel that is “fashion” subject
to protection, and what is merely plain and simple apparel?
There is a significant risk that the Bill, as written, is overinclusive.
On the other hand, the DPPA may be interpreted in a
way that misses some items that clearly should receive
copyright protection in light of both our intuitive notions of
“fashion design” and the purpose of the Bill. Items into which
designers have invested much time and energy and which
undoubtedly fall into the “designer” category of the fashion
industry pyramid could conceivably be discriminated against
under the proposed statutory language. For example, designer
unisex clothing90 and pet apparel91 could conceivably fail to
qualify as “men’s, women’s, or children’s clothing,” but are
designed by people who are recognized fashion designers,
displayed on runways, and sold alongside other items of
fashion design.92 Similarly, luggage items,93 men’s wallets,94 and
88
See Raustiala & Sprigman, supra note 39, at 1740 (questioning whether
“protective clothing” and “sport apparel” “count as ‘fashion designs.’”).
89
The design must also be “original” and “attractive or distinctive” in order to
receive protection. 17 U.S.C. § 1301 (a)(1) (2000).
90
See Joelle Diderich, Runways of Europe Sport Daring, Unisex Outfits,
BUFFALO NEWS, July 5, 2006, at C1 (reporting on fashion collections by designers such
as Jean Paul Gaultier and Kris Van Assche who “blur the distinctions between the
genders”); Constance C.R. White, Review/Fashion; Touches of Spice in a Tepid Stew,
N.Y. TIMES, Jan. 27, 1998, at B9 (“The idea of unisex clothing is now as hackneyed as
the boyfriend jacket . . . .”).
91
See Jill P. Capuzzo, Creatures Bask in High-End Comforts, N.Y. TIMES,
Nov. 27, 2005, at 14NJ (reporting on the development of the pet industry and noting
that “growth has been strongest in the high end of the market—[including] designer
clothes”); Alex Kuczynski, Critical Shopper; A Boutique for Obedient Humans, N.Y.
TIMES, Sept. 14, 2006, at G4 (describing a pet store in Bridgehampton, N.Y., as a
“miniature Neiman Marcus for dogs” offering designer dog “hoodies” and high-priced
collars and accessories).
92
For example, Kris Van Assche, recognized as a “young designer” in the
media, included unisex suits in his runway show in Paris 2006. Diderich, supra note
90. Fashion for dogs has been developed by designers such as Nicole Miller, Alice +
Olivia, and Burberry, and has been displayed in runway shows. See NBC Today Show
(NBC Universal Inc. Apr. 6, 2006) (reporting on Paws for Style celebrity pet fashion
show); see also Stephen G. Henderson, Beauty and the Leash; Pet Fashion Week Gives
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backpacks95 designed by recognized fashion designers do not
clearly fall within the category “handbags, purses, and tote
bags.” Would such items receive protection? Or would courts
interpret the statutory language in a broader way such that the
legislation does not arbitrarily discriminate against these
articles of fashion?
IV.
JUDICIAL APPROACHES TO INTERPRETING THE SCOPE OF
THE STATUTE
If the DPPA is enacted, courts could take a variety of
approaches to interpreting the meaning of the term “fashion
design,” and, within the definition of fashion design,
“apparel.”96 As yet, the VHDPA has not generated enough
litigation to provide precedent for interpreting the terms of the
statute. Only a small number of vessel hulls have been
registered thus far,97 and only one case regarding infringement
of a hull design has been litigated.98 Moreover, currently there
Four-Footed Friends a Chance to Embrace Style, BALT. SUN, Aug. 27, 2006 (reporting
on a fashion show for dog apparel “that either met or exceeded haute couture quality”).
Burberry sells its dog trench coat on its website along with its signature coats for
men and women, Burberry, Dog Trench Coat, http://www.burberryusaonline.com/
product/index.jsp?productId=1892739 (last visited Jan. 27, 2007), while Neiman
Marcus carries velour dog hoodies by Juicy Couture alongside versions for humans,
Neiman Marcus Online, http://www.neimanmarcus.com/store/catalog/47/search.jhtml?
ip_state=&ip_autoSummarize=true&ip_perPage=15&orgUrl=%2Fstore%2Fcatalog%2F
47%2Fsearch.jhtml&srcText=dog (last visited Feb. 18, 2008).
93
See Vanessa Friedman, FT Weekend—Style: Showcase For Your Desires If
You’re a Self-Respecting Globetrotter, You don’t Just ‘Need’ a Suitcase, FIN. TIMES (UK),
May 27, 2006, at 7 (reporting that Prada’s “bubblegum pink alligator wheelie bag made
a runway appearance” and Chanel had a “cream or black quilted version”); Edwina
Ings-Chambers, FT Weekend—Style: Everyone Gets in on the ‘Big Bag is Better’ Thing
Despite the Danger of Looking Like Santa’s Little Helper, the Supersized, ‘Sexy’
Accessory is Selling All Over, FIN. TIMES (UK), Oct. 21, 2006, at 10 (noting that
“luggage has featured in fashion shows”).
94
For example, see designer Jack Spade’s collection of wallets for men. Jack
Spade, Small Goods, http://www.jackspade.com/shop/home.php?cat=309 (last visited
Feb. 18, 2008).
95
Designer Miuccia Prada included backpacks in a recent fashion show. Suzy
Menkes, Sporty Marni Beats Prada’s Surgical Sexiness, INT’L HERALD TRIB., Sept. 28,
2006, at 9.
96
97
From July 1999, when the first vessel hull was registered under the Act, to
October 2003, only 156 designs had been registered, six were “in-process pending
clarification of certain matters related to those claims,” and eight had been rejected by
the Copyright Office. U.S. COPYRIGHT OFFICE & U.S. PATENT AND TRADEMARK OFFICE,
THE VESSEL HULL DESIGN PROTECTION ACT: OVERVIEW AND ANALYSIS 10 (2003)
[hereinafter Report].
98
Maverick Boat Co. v. American Marine Holdings, Inc., 418 F.3d 1186 (11th
Cir. 2005).
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are very few statutes that refer to “fashion design.”99 As a
result, there is little precedent as to how courts will interpret
the meaning of fashion.100 This section of the Note therefore
suggests different approaches to statutory interpretation that
courts may pursue based on the way courts in the past have
made determinations about art and aesthetics in various other
areas of the law.101
A.
Approaching Aesthetics in the Law
Professor Alfred Yen, in his article “Copyright Opinions
and Aesthetic Theory,” poses the questions “What is art, and
how should art be interpreted?” at the outset of his piece.102 His
examination of the way in which courts approach this broad
question in the context of copyright law provides a useful model
99
There is currently only one federal statute that lists the term “fashion
design”: 20 U.S.C. § 952(b) (2000) (including “fashion design” in a list of terms defining
the term “the arts”). There are eleven state statutes with the term “fashion design.”
ARK. CODE ANN. § 13-8-102(2)(N) (2007) (under definition of “[t]he arts”), CAL. ED.
CODE § 52485(a) (West 2006) (legislative findings about importance of home economics
education); D.C. CODE § 39-202(3) (2007) (under definition of “arts”); FLA. STAT.
§ 287.012(3) (2003) (under definition of “artist”); HAW. REV. STAT. § 9-1 (2006) (under
definition of “[a]rts”); KY. REV. STATE. ANN. § 153.210(1) (West 2006) (under definition
of “the arts”); MINN. STAT. § 129D.01(a) (2000) (under definition of “Arts”); id. § 471.941
(2001) (under definition of “artistic organization”); OR. REV. STAT. § 316.838(2) (2005)
(under definition of “art object”); id. § 359.010(2) (2005) (under definition of “[a]rts”);
WYO. STAT. ANN. § 9-2-903(a)(ii)(B) (2006) (listed as type of “arts and crafts” that
department of state parks and cultural resources must oversee).
100
There are no cases interpreting the meaning of “fashion design” under 20
U.S.C. § 952(b) (2000). Nor are there any cases interpreting the term in any of the state
statutes listed supra in note 99.
101
This writer believes that comparing fashion design to art in the law is an
intuitively reasonable analogy since both fashion design and art are creative, aesthetic
forms of expression. Various statutes implicitly recognize the relationship between art
and fashion, often including “fashion design” as a type of art in the statutory
definitions. For examples, see supra note 99. In addition, legal commentators have
suggested the comparison. See, e.g., Hetherington, supra note 24, at 56-57 (“It is clear
that both designers and the public consider haute couture to be art.”); Bharathi, supra
note 24, at 1668 (arguing that “fashion designers are comparable to artists”); Tsai,
supra note 24, at 461 (arguing that “[f]ashion designers are artists and the medium
they work with is clothing”). Professor Susan Scafidi explains the distinction between
“clothing,” which is merely something that covers the body, and “fashion”—“a form of
creative expression.” Hearings, supra note 1, at 79 (statement of Susan Scafidi). She
analogizes fashion designers to “visual artists,” explaining that both designers and
artists have “blurred the distinction between art and fashion by designing unique
works of art in the shape of clothing.” Id. at 80. She points out that fashion is not based
merely on utilitarian or functional goals, but is a form of creative expression. Id. at 79.
She notes a recent cultural shift in recognizing fashion design as a type of art form, as
evidenced by recognition from institutions like the Smithsonian, Sotheby’s, the
National Arts Club, and the Cooper-Hewitt Design Museum. Id. at 81.
102
Alfred C. Yen, Copyright Opinions and Aesthetic Theory, 71 S. CAL. L. REV.
247, 252 (1998).
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with which to approach the issue of how courts would answer
the more specific question: “what is fashion design, and how
should fashion design be interpreted under the DPPA?”103 In
answering the question he sets for himself, Yen presents an
overview of major movements from aesthetic theory—
formalism, intentionalism, institutionalism, and readerresponse theory—and illustrates “the striking parallels
between aesthetic reasoning and the legal reasoning of
copyright opinions.”104
The three main theories of how courts determine what
is art outlined by Yen—formalism, intentionalism, and
institutionalism—may be instructive in terms of how courts
will likely interpret the meaning of “fashion design.” In the
context of interpreting whether a given work is “art” under the
formalist approach, a court looks at a particular work and
determines its status as art based on the work’s inherent
identity as an art object. In other words, “Interpretation
becomes an objective empirical inquiry devoid of personal
views.”105 Under the intentionalist approach, a court looks at
the intention of the creator of the object and classifies the
object as “art” based on whether that person perceives the
object to be art.106 Under the institutionalist approach, a court
defines “art” based on what the “art world” deems to be art.107
Yen recognizes that each theory has its shortcomings, and
courts are not consistent in their use of one theory over
another; rather, they intuitively adopt one or another
depending on the facts of the case.108 Which approach(es) would
courts take in interpreting the meaning of “fashion design”
103
See supra note 101 (discussing the connection between art and fashion
design).
104
Yen, supra note 102, at 251-52. Yen examines the applicability of aesthetic
theory specifically to the copyright law doctrines of originality, useful articles, and
substantial similarity. Id. at 252.
105
Id. at 262; see infra Part IV.B.1 (discussing cases taking this approach).
106
Yen, supra note 102, at 263. “Activity becomes artistic only if those who
participate in it perceive it that way.” Id. at 256. See infra Part IV.C.1 for discussion of
cases taking this approach.
107
Yen, supra note 102, at 259 (“[O]bjects become art when someone who
believes that he is a member of the artworld invites others to view the object
aesthetically.”). See infra Part IV.C.2 for discussion of cases taking this approach.
108
Yen, supra note 102, at 260 (“[T]he theories will continue to exist in
tension with each other, ready for use by viewers of art as circumstances may
dictate.”); see also Christine Haight Farley, Judging Art, 79 TUL. L. REV. 805, 845-46
(2005) (“Examples of almost every aesthetic theory can be found employed by a court
that must decide whether an object is art. . . . Their invocation of these theories is
intuitive, not deliberate.”).
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under the DPPA? This will depend on whether the courts
interpret the statute narrowly or broadly.
B.
Interpreting the Statutory Language Narrowly
If courts interpret the DPPA narrowly, finding the
definition of “apparel” to include an exhaustive list of items
qualifying for protection, and interpreting each item on the list
literally, (for example, “belt” and “handbag”), these courts will
likely employ the formalist approach.109 The Copyright Office
has made clear that the VHDPA is to be interpreted
narrowly.110 A report prepared by the Copyright and Patent and
Trademark offices in 2003 addresses “the scope of protection for
an original design vessel hull.”111 It notes that although
“[m]asts, sails, yards and rigging are components typical of a
sailboat . . . the statute does not speak to other components of
most boats” beyond the “hull of a vessel, ‘including the deck.’”112
The report then states that the Copyright Office’s approach “in
making registration has been to interpret § 1301 strictly,”113
and therefore sailboat components such as masts, sails, yards,
and rigging are not included within the scope of the statute.
Although courts may make their own independent interpretations regarding the copyrightability of particular works,114
courts often give deference to the Copyright Office’s
determination.115 Since under the DPPA the definitions of
“fashion design” and “apparel” fall within § 1301 as well, the
proposed legislation may also be construed strictly.116
In addition, the proposed legislation may be interpreted
narrowly if courts consider the legislative intent regarding the
interpretation of 17 U.S.C. § 1301 when it was originally
109
See infra Part IV.B.1 (discussing the formalist approach).
Report, supra note 97, at 14.
111
Id.
112
Id. at 16.
113
Id.
114
115
De Sylva v. Ballentine, 351 U.S. 570, 577-78 (1956) (Courts “ordinarily give
weight to the interpretation of an ambiguous statute by the agency charged with its
administration.”). See, e.g., Southco, Inc. v. Kanebridge Corp., 390 F.3d 276, 286-87 (3d
Cir. 2004) (deferring to the Copyright Office’s “longstanding practice of denying
registration to short phrases”).
116
Further emphasizing that Congress intended the VHDPA to be interpreted
narrowly, legislation was recently passed in the Senate that clarifies which parts of the
vessel are subject to protection. The drafting approach is thus to be very explicit about
the scope of the statute. Vessel Hull Design Protection Amendments of 2005, S. 1785,
109th Cong. § 2-3 (1st Sess. 2005).
110
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enacted as the VHDPA. Although the legislative history of the
DPPA has yielded little debate thus far over its scope of
protection, the Congressional Record for the enactment of the
VHDPA reveals that Senators were concerned with scope
issues and worried that the legislation would open the door for
protection of industrial design on a broader level.117 Thus, if the
DPPA is enacted, the statute may continue to be construed
strictly in order to provide the most limited protection for
design.
1. The Formalist Approach
Courts interpreting statutes narrowly often take a
strict, formalistic approach to interpreting whether a given
object falls within a list-like definition of a term.118 Staying
within the realm of aesthetics, it is helpful to examine cases in
which courts interpret statutes defining “art” using the
formalist approach identified by Professor Yen.119 Sometimes,
courts just declare that a particular object qualifies as an item
listed under the scope of the statute without much explanation
(presumably in those cases the status of the article was not
questioned by the litigants).120 Similarly, courts sometimes
assert that an object falls within the scope of a statute
governing art-related items because of the object’s beauty and
aesthetic qualities, or they make other subjective assessments
117
144 CONG. REC. S11887, S11889 (1998) (Senator Hatch expressing his
concern “that this bill is not like traditional industrial design protection in that [it]
protects the functionality of vessel hulls, not only its aesthetic aspects,” but stating
that “because [it] is limited only to boat hulls . . . [he] could acquiesce in including it . . .
as a limited experiment in design protection”).
118
See, e.g., Pollara v. Seymour, 344 F.3d 265, 267 (2d Cir. 2003); Martin v.
City of Indianapolis, 192 F.3d 608, 615 (7th Cir. 1999); Carter v. Helmsley-Spear, Inc.,
71 F.3d 77, 84 (2d Cir. 1995); Petry Co. v. United States, 11 Ct. Cust. App. 525 (Ct.
Cust. App. 1923); Lilley v. Stout, 384 F. Supp. 2d 83, 86 (D.D.C. 2005); Scott v. Dixon,
309 F. Supp. 2d 395, 400 (E.D.N.Y. 2004); Tiffany v. United States, 66 F. 736, 736-37
(S.D.N.Y. 1895).
119
Farley, supra note 108, at 820-21 (“Oftentimes ‘art’ is statutorily defined as
a list of subcategories of art, such as painting, sculpture, drawing, and photography,
without any further definition. These statutes employ extensional definitions of art—
they simply define art by listing the things that are included under the term.”).
Similarly the DPPA defines “apparel” by listing items included in the term, such as
clothing, belts, and eyeglass frames. Design Piracy Prohibition Act, H.R. 5055, 109th
Cong. § 1 (2d Sess. 2006).
120
See, e.g., Martin, 192 F.3d at 615 (referring throughout the opinion to an
object depicted in a photograph admitted into evidence as a “sculpture” without
discussing its qualifications as sculpture); Scott, 309 F. Supp. 2d at 396 (referring to a
fifty-two-foot-tall plywood and steel structure as a “tall sculpture” and “work of art”
under VARA without discussing its qualifications as sculpture).
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about the artistic merits of the work.121 Courts also invoke
“common meaning” understandings of statutory terms, as well
as dictionary definitions, to determine whether the object
qualifies as an item listed in the statute.122 And courts are often
reluctant to expand the meaning of a term listed in a definition
to include “subcategories” of the term.123
Phillips v. Pembroke Real Estate provides a good
example of how courts may narrowly interpret an aesthetic
term defined in a statute with a list of items.124 In that case, a
sculptor brought suit under the Visual Artists Rights Act
(“VARA”) and the Massachusetts Art Preservation Act
(“MAPA”), seeking to prevent the destruction of his “public
sculpture park.”125 Both statutes protect artwork against
destruction in certain circumstances; VARA applies to “work[s]
of visual art” while MAPA covers “fine art.”126 The plaintiff
argued that the park as a whole, which contained sculptures
121
See, e.g., Tiffany, 66 F. at 736. The court found that “paintings upon fans
made of silk and other materials” were dutiable as “paintings” rather than “silk” under
customs statute. Id. The court explained: “No one who has the slightest knowledge of
art can fail to see that in drawing, coloring, grouping and in attention to minute detail
it is a painting of great beauty and merit. To call such a work of art ‘a manufacture of
silk’ seems almost as irrational as to call the Venus of Milo ‘a manufacture of marble.’”
Id. at 737; see also Carter, 71 F.3d at 84 (court found that parts of a sculpture were a
single interrelated work after “the district court’s own inspection of the work”).
122
See, e.g., Pollara, 344 F.3d at 267 (in determining whether banner was a
“work of visual art” subject to protection under VARA, the district court looked at
dictionary definitions of “advertising,” citing the American Heritage Dictionary); Petry
Co., 11 Ct. Cust. App. at 527 (in finding that mosaics are not “works of art” under
Tariff Act of 1913, the court consulted a dictionary definition of “mosaic”); Lilley, 384 F.
Supp. 2d at 86 (“[T]he statutory term ‘still photographic image’ in Section 101 has a
plain and unambiguous meaning. It is clear from a plain reading of the statute and the
specific context in which the language is used that both photographic prints and
negatives qualify as ‘still photographic image[s]’ and that both therefore are eligible for
protection as ‘work[s] of visual art’ under VARA.”).
123
See, e.g., Petry Co., 11 Ct. Cust. App. at 528 (declining to interpret the
category of “works of art” under the Tariff Act of 1913 to include mosaics since they are
“not specially provided for in the law”); NASCAR v. Scharle, 356 F. Supp. 2d 515, 529
(E.D. Pa. 2005) (declining to interpret “sculpture” under the 1976 Copyright Act to
include plans for a trophy because the Act “excludes both ‘models’ and ‘technical
drawings’ from the definition of works of visual art”); Jacobs, Inc. v. Westoaks Realtors,
205 Cal. Rptr. 620, 624 (Ct. App. 1984) (declining to interpret “fine art” under the Art
Preservation Act to include architectural plans because, “[e]ven if the inspiration that
produces an architect’s plans may be ignited by the same creative spark that inspires
poetry or music,” the Act does not list architectural plans and specifically excludes
works “prepared under contract for commercial use by its purchaser”).
124
Phillips v. Pembroke Real Estate, 288 F. Supp. 2d 89 (D. Mass., 2003).
125
Id. at 92-93.
126
Id. at 96, 100.
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that he had designed and placed within the space, was
protected under both statutes.127
The court first held that VARA did not protect the park
as a whole.128 “Visual art” under VARA is defined in the
Copyright Act as including “a painting, drawing, print or
sculpture, existing in a single copy” or limited edition.129 Taking
a narrow approach, the court found that the park was not
“visual art” under the statute because it was not listed under
the definition of the term, and it did not qualify as a
subcategory of any of the terms listed.130 The park did not
constitute “sculpture,” the court reasoned, because “a park does
not fit within the traditional definition of sculpture” (citing
Random House Webster’s College Dictionary) and because “the
definitions in VARA are to be construed narrowly.”131 Thus the
court took a formalistic approach in finding that the park was
not “visual art” under VARA.
Underscoring the significance of the limiting quality
imposed by a “list definition” of a statutory term, the court
nevertheless found “a reasonable likelihood of success”132
regarding the plaintiff’s argument that the park was protected
under MAPA, which defines “fine art” as “any original work of
visual or graphic art of any media which shall include, but [is]
not limited to, any painting, print, drawing, sculpture, craft
object, photograph, audio or video tape, film, hologram, or any
combination thereof.”133 The court explained, “The definition of
‘fine art’ in MAPA is significantly more expansive than the
definition of ‘work of visual art’ in VARA because it is not
limited to the specific enumerated types of art.”134 Thus the
court found that MAPA applies much more broadly than
VARA.
The DPPA bears striking similarity to VARA. Like
VARA, the proposed legislation protects a broad aesthetic term
that is subject to multiple interpretations (“fashion design”)
and then defines that term with a list of specific items without
language such as “including, but not limited to” or a “catch-all”
127
128
129
130
131
132
133
134
Id. at 98-99, 101.
Id. at 99.
Id. at 97.
Id. at 99.
Id.
Id. at 102.
Id. at 101.
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category such as “and similar such items.”135 There is a strong
likelihood that Congress will express its intention that the
Bill’s definitions are to be construed narrowly, like the
definitions in the VHDPA, just as Congress intended the
definitions in VARA to be interpreted narrowly.136 Moreover, if
the DPPA were enacted, it would become part of the same part
of the United States Code as VARA—Title 17. Thus, courts
may follow Phillips by construing the DPPA’s definition as an
exhaustive list of items subject to copyright protection and take
a strict formalist approach when determining whether an item
falls within one of the explicit subcategories of “apparel” by
referring to dictionary definitions and common understandings
of each term.
Although the Phillips court declined to find a park to be
a type of sculpture under VARA, courts sometimes do recognize
subsets of items listed in the definition of a term even under a
narrow formalistic approach.137 For example, in Botello v. Shell
Oil Co.,138 the court held that “mural” is a subset of “painting”
under California’s Art Preservation Act, which provides
protection to “fine art” and defines that term as “an original
painting, sculpture or drawing, or an original work of art in
glass, of recognized quality.”139 The court reasoned, based on
dictionary definitions of the term “mural,” that a “‘mural is a
subset of painting. Much as a rose is to a flower, or ring to
jewelry, or sonnet to poetry.”140 Thus, the narrow approach
leaves some flexibility for courts to find that certain items not
specifically listed in a statute are protected, so long as these
items can be understood to be subsets of items that are
enumerated. In the case of the DPPA, a court may find that an
evening clutch141 is protected under the term “handbag” or
135
See supra Part IV.B. The Phillips court noted that “Congress has provided
a ‘narrow definition of works of visual art.’” 288 F. Supp. 2d at 98 (quoting Carter v.
Helmsley-Spear, Inc., 71 F.3d 77, 84 (2d Cir. 1995)).
137
See, e.g., Tiffany v. United States, 66 F. 736, 737 (S.D.N.Y. 1895) ( “In
ordinary parlance it is, perhaps, true that a painting is understood to mean a picture in
oil or water colors, painted on canvas or paper, inclosed in a suitable frame and
intended to be hung on the walls. . . . But such a definition is manifestly too narrow.”);
Botello v. Shell Oil Co., 280 Cal. Rptr. 535, 538 (Ct. App. 1991).
138
280 Cal. Rptr. 535 (Ct. App. 1991).
139
Id. at 537.
140
Id. at 538.
141
Samantha Thompson Smith, It’s Big, Big, BIG: The Latest Gotta-Have-It
Handbag Can Stop a Train in Its Tracks, NEWS & OBSERVER (Raleigh, N.C.), Nov. 6,
2006 (discussing the popularity of the expensive designer clutch as part of a woman’s
handbag collection).
136
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“purse” if it determines that a clutch qualifies as a subset of
one of those terms.
In sum, if courts take a narrow formalist approach to
interpreting the DPPA, they will find that all items (but only
those items) that are explicitly included on the list under the
definition of “apparel” fall within its scope of protection. They
will interpret those terms listed by referring to their intrinsic
meanings, common understandings, and dictionary definitions,
yet they may recognize that certain terms contain
subcategories not explicitly listed.
C.
Interpreting the Statutory Language Broadly
Courts may also take a broader approach to interpreting
the DPPA by treating the list of items in the definition of
“apparel” as merely suggestive of categories of protection. The
Copyright Act specifically provides that the term “including”
(which is part of the Bill’s definition of “apparel”142) is not
meant to be a word of limitation.143 Courts have thus at times
interpreted the Act liberally to provide protection for items not
specifically listed in order to avoid inequitable results.144 If the
DPPA were enacted into law, courts might similarly interpret
it broadly to further the purposes of the statute and to avoid
the problems associated with arbitrarily excluding certain
types of fashion were the statute to be interpreted strictly. Yen
identified two such methods as the “intentionalist” and
“institutionalist” approaches.145
1. The Intentionalist Approach
Courts interpreting the DPPA may take the broad
“intentionalist” approach identified by Professor Yen in order
to determine whether something that is not explicitly included
142
Design Piracy Prohibition Act, H.R. 5055, 109th Cong. § 1 (2d Sess. 2006)
(“The term ‘apparel’ means—(A) an article of men’s, women’s, or children’s clothing,
including undergarments, outerwear, gloves footwear, and headgear.” (emphasis
added)).
143
See 17 U.S.C. § 101 (2000) (defining “including”).
144
For example, software is protected under the Copyright Act even though it
is not listed in § 102 as a work of authorship. Aharonian v. Gonzales, No. C 04-5190
MHP, 2006 WL 13067, at *8 (N.D. Cal. Jan. 3, 2006) (rejecting plaintiff’s argument
that software is not protected because it is not explicitly listed in 17 U.S.C. § 102,
noting that “the language of section 102(b) is deliberately open-ended, permitting
flexible application of copyright law to evolving technology.”).
145
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in the statute should nevertheless fall within its scope.146 Under
this approach, courts consider the creator’s intention in
determining the item’s identity or purpose and thus whether it
falls within the meaning of a statutorily defined term.147 Courts
may listen to the creator’s testimony at trial148 or may look to
external signs of his or her intent at the time of creation.149
For example, in NASCAR v. Scharle, the court looked at
both the plaintiff’s characterization of his work as well as his
external conduct regarding its creation in determining that his
trophy designs did not qualify as “visual art” within the scope
of VARA.150 The court noted that in his testimony, the plaintiff
disclosed that he never expected his trophy designs to be
displayed as independent works of art but that he viewed them
merely as preliminary sketches to be used in the process of
creating a three-dimensional trophy.151 Also significant to the
court’s finding that the plaintiff’s designs were not “works of
visual art” was the fact that he had created the designs “with
extreme exactness” in order to be more useful to technicians
“later in the manufacturing process.”152 The court found this to
146
See, e.g., Pollara v. Seymour, 344 F.3d 265, 270 (2d Cir. 2003); Carter v.
Helmsley-Spear, Inc., 71 F.3d 77, 84 (2d Cir. 1995); Lilley v. Stout, 384 F. Supp. 2d 83,
88-89 (D.D.C. 2005); NASCAR v. Scharle, 356 F. Supp. 2d 515, 529 (E.D. Pa. 2005);
Phillips v. Pembroke Real Estate, 288 F. Supp. 2d 89, 94 (D. Mass. 2003).
148
See, e.g., Carter, 71 F.3d at 84. (noting that the trial court found that
installation art in the lobby of a commercial building satisfied the Copyright Act’s
“positive definition of a work of visual art” as a single work based partly “on
testimony . . . of the artists themselves”); see also NASCAR, 356 F. Supp. 2d at 529;
Phillips, 288 F. Supp. 2d at 94 (in determining whether a sculpture park was protected
under VARA, considering the plaintiff-artist’s belief that his sculptures were “visual
art”); Lilley, 384 F. Supp. 2d at 86, 87 (in finding that photographic prints were not
produced “for exhibition purposes only” under VARA, noting that “[w]hile it may
appear simple to distinguish between an amateur photographer taking snapshots on
vacation and an artist producing photographs ‘for exhibition only,’ few artists would
characterize their work as the latter”).
149
See, e.g., Pollara, 344 F.3d at 270 (“[T]he directions given by [the
commissioner of the work] evidence the promotional and advertising purpose that
bring the banner outside the scope of VARA.”); Lilley, 384 F. Supp. 2d at 88-89 (noting
that a photographer’s actions evidenced that certain prints were not created solely for
exhibition purposes); Phillips, 288 F. Supp. 2d at 99 (in determining whether a
sculpture park was protected under VARA, noting plaintiff-artist’s promotional
brochures describing his “artistic vision” and his artistic input into the creation of the
park). But see Peters v. United States, 41 Cust. Ct. 195, 199 (Cust. Ct. 1958) (finding
that a collage was not protected as a painting under the Tariff Act of 1930 even though
there was “documentary evidence indicating that it [was] regarded by the artist . . . as
a painting”).
150
NASCAR, 356 F. Supp. 2d at 528-29.
151
Id. at 529.
152
Id.
147
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be objective evidence that at the time of creation the artist did
not intend to produce a “work of visual art.”153
Courts could similarly take into account an apparel
designer’s intent with regard to whether an item falls under
the scope of the DPPA. Designers could be called upon to testify
as to whether they think of their creations as “fashion designs,”
whether they intend to include the items in their runway
shows or as part of one of their seasonal collections, or whether
they intend to market the item as designer fashion apparel.
Courts could also consider objective evidence of a designer’s
creative input and the purpose for which the garment was
designed, following the approach in NASCAR.154
2. The Institutionalist Approach
In addition to considering the intent of an item’s
creator, courts frequently consider the opinions of experts to
determine whether a particular item falls within the scope of a
statute. This is the “institutionalist” approach identified by
Professor Yen.155 Under this approach, courts take into account
the opinions of those with expertise in the relevant field to
determine whether an item falls within the scope of a
statutorily defined term.156 For example, when courts interpret
statutes governing art, they often look to what the “art world”
considers to be art.157 They may look at whether the item has
been displayed in a museum or gallery,158 whether it has
153
Id.
For example, a dress designed specifically for a celebrity to wear to the
Academy Awards Show, an event where celebrities are expected to wear “top-tier”
fashion, would clearly evince the creator’s intent to produce a “fashion design.” See Guy
Trebay, Fashion Diary: For Designers, an Image-Making Bonanza That Is Priceless,
N.Y. TIMES, Mar. 6, 2006, at E1 (“[T]he Oscars are a designer bonanza.”).
155
156
See, e.g., United States v. Perry, 146 U.S. 71, 74 (1892); Martin v.
Indianapolis, 192 F.3d 608, 610 (7th Cir. 1999); Carter v. Helmsley-Spear, Inc., 71 F.3d
77, 84 (2d Cir. 1995); Peters v. United States, 41 Cust. Ct. 195, 198-99 (Cust. Ct. 1958);
Hunter v. Squirrel Hill Assoc., 413 F. Supp. 2d 517, 518 (E.D. Pa. 2005); Scott v. Dixen,
309 F. Supp. 2d 395, 396 (E.D.N.Y. 2004); Phillips v. Pembroke Real Estate, 288 F.
Supp. 2d 89, 92 (D. Mass. 2003).
157
See, e.g., Perry, 146 U.S. at 74; Martin, 192 F.3d at 610; Carter, 71 F.3d at
84; Hunter, 413 F. Supp. 2d at 518; Scott, 309 F. Supp. 2d at 396; Phillips, 288 F. Supp.
2d at 93.
158
See, e.g., Perry, 146 U.S. at 74 (noting that stained-glass windows are
“ordinarily classified in foreign exhibits as among the decorative and industrial, rather
than among the fine, arts” in finding that they did not qualify as “paintings” under the
Tariff Act of 1890 in this case); Martin, 192 F.3d at 610 (considering the plaintiffcreator’s evidence that “his works have been displayed in museums” in finding that a
sculpture was protected as a work of “recognized stature” under VARA); Scott, 309 F.
154
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received an award for artistic achievement,159 or whether the
item or its creator has been recognized in some way by the art
world.160 They also may give significant weight to the testimony
of art experts.161
The United States Customs Court took an institutionalist approach in Peters v. United States,162 holding that a
“collage”—“executed in the medium of burlap pieces, sewn, the
whole pasted or otherwise affixed to a back, and with oil paints
applied”163—was an “original work of art.”164 The court relied on
Supp. 2d at 396 (considering the plaintiff’s testimony that galleries exhibited her work
in its determination of whether an object was a work of recognized stature under
VARA); Phillips, 288 F. Supp. 2d at 93 (considering that the creator’s “work is
exhibited in galleries and museums in New York City, Maine, and elsewhere” in its
determination of whether a sculpture park fell within the scope of VARA and MAPA).
159
See, e.g., Martin, 192 F.3d at 610 (noting that plaintiff-creator received a
prize from the Annual Hoosier Salem Art Show in finding that a sculpture was a work
of recognized stature under VARA); Hunter, 413 F. Supp. 2d at 518 (in recognizing that
a mural qualified as a work of recognized stature under VARA, noting that it “enjoyed
media attention and several public commendations, including a landscape design
award from the American Society of Landscape Architects . . .[,] first prize in the
Pennsylvania Horticultural Society’s City Garden Contest. . . . [and], the City Council
of Philadelphia recently honored Plaintiff for her work on the mural”).
160
See, e.g., Perry, 146 U.S. at 75-76 (noting that the stained-glass windows in
question were not distinguished from other types of stained-glass windows “in the
catalogues of manufacturers and dealers in stained glass” and that they were
“advertised and known to the trade as painted or stained glass windows”); Martin, 192
F.3d at 610-12 (noting that plaintiff-creator held “various art degrees,” that the
sculpture received attention from the “art community,” and that plaintiff proffered
“newspaper and magazine articles, and various letters, including a letter from an art
gallery director and a letter to the editor . . . in support of the sculpture” in finding that
the sculpture was protected under VARA); Scott, 309 F. Supp. 2d at 396 (noting that
plaintiff-artist had been referred to in a periodical as a “contemporary American artist”
and “achieved a measure of local notoriety as an artist” in determining whether his
paintings were protected under VARA); Phillips, 288 F. Supp. 2d at 93-94 (noting that
the creator “earned numerous commissions for sculptures at universities, private
companies, and public spaces,” was “featured in art magazines,” and “enjoys a national
reputation” in determining whether a sculpture park fell within the scope of VARA and
MAPA).
161
See, e.g., Martin, 192 F.3d at 610; Carter, 71 F.3d at 84 (noting, without
reaching the issue, that the trial court found that installation art in the lobby of a
commercial building satisfied the Copyright Act’s “positive definition of a work of
visual art” based partly on the testimony of expert witnesses); Scott, 309 F. Supp. 2d at
397 (noting that the plaintiff failed to “call any expert witness to testify as to whether
the Sculpture had ever been reviewed by any member of the artistic community” in
determining whether an object was work of recognized stature under VARA); Phillips,
288 F. Supp. 2d at 92-96 (relying on testimony from “the Executive Director of the
Urban Arts Institute at the Massachusetts College of Art . . . [and] the Director of the
Architect Resource Group at Pembroke” to determine that “modern sculpture does not
exist separate from its context,” that “the notion of sculpture has undergone a radical
redefinition,” and that the park has been treated as a “sculpture of the environment” in
determining whether a sculpture park fell within the scope of VARA and MAPA).
162
Peters, 41 Cust. Ct. at 195.
163
Id. at 198.
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the expert testimony of the director of museum collections of
the Museum of Modern Art (“MOMA”) in New York and of a
modern art dealer and gallery owner from New York to
determine that the object qualified as “an original work of the
free fine arts, within the modern art field.”165 The court credited
the plaintiff’s reputation in the art world, noting that his works
had been exhibited in several museums, that a MOMA bulletin
listed his work among the work of other renowned artists,
and that a MOMA book featuring twenty-two painters and
sculptors included the plaintiff as one of the artists.166
Emphasizing the experts’ qualifications to testify about modern
art, the court concluded that the collage was an “original work
of art.”167
Under the DPPA, courts may take an analogous
approach in determining whether an item is a “fashion design,”
relying on the testimony of fashion industry experts and other
external evidence of the industry’s validation of the work. Just
as courts interpreting statutes about art look at whether the
object in question has ever been displayed in a museum or
gallery, courts interpreting the Bill may look at whether the
item in question has ever been sold in “fashionable”
department stores, such as Bergdorf Goodman in Manhattan
and Barneys New York, or included in an elite fashion show.
Courts may also look at whether the fashion design or designer
has been recognized in the fashion media or received any
awards.168
3. Consideration of the “Type” of Item Protected
Some courts interpreting the DPPA broadly may not
follow either the intentionalist or the institutionalist approach.
Rather, they may infer that a particular item is protected as a
“fashion design” even when it is not explicitly listed under the
definition by analogizing to other cases or finding that the item
falls within the general “type” of item protected by the Bill.
164
Yet the collage did not qualify as an original painting under the Tariff Act
of 1930, which did not classify “collage” as a type of work subject to the statutory
provision. Id. at 199.
165
Id. at 198.
166
Id.
167
Id. at 199.
168
For example, the CFDA awards. Ginia Bellafonte, Front Row; Rousing a
Fashion Award Show, N.Y. TIMES, Apr. 25, 2000, at B9 (reporting on fashion award
ceremony).
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Under one approach, courts may interpret the statutory
language in a looser manner by treating the list of terms
included under the definition of “apparel” (for example,
“handbags,” “belts,” “eyeglass frames”) as merely suggestive of
the types of works subject to the Bill’s protection, and by
making broad interpretations of each individual term on the
list. In Friedrich v. Chicago, Judge Posner took this approach
in holding that expert witness fees were recoverable under a
civil rights attorney fee statute providing that “the court, in its
discretion, may allow the prevailing party . . . a reasonable
attorney’s fee as part of the costs” paid by the loser.169 Although
the statute explicitly granted attorney’s fees, and said nothing
about fees for experts, Posner noted that the U.S. Supreme
Court had held that paralegal fees and lawyers’ out-of-pocket
expenses, which are not “attorney’s fees” within the plain
meaning of the term, nevertheless fell within the scope of the
statute.170 He reasoned that given this broad approach to
interpreting the term “reasonable attorney’s fees” to include
such other expenses, Congress must have used the term “as a
shorthand expression for such fees and other expenses as the
district court might in the exercise of its equitable discretion
reasonably believe should be reimbursed to the prevailing
party.”171 Thus, expert witness fees are recoverable, even
though they are not literally “attorney’s fees” or a subset of
that term.
In the case of the DPPA, the terms employed in the
statutory definition of “apparel” could also be interpreted as
shorthand expressions for the fashion items they represent, as
well as other fashionable apparel a court might believe is
meant be protected. For example, a court might find that a
suitcase falls within the scope of the statute because the term
“tote bag” is a shorthand expression for all large bags used to
carry around personal belongings.
169
Friedrich v. Chicago, 888 F.2d 511, 513, 519 (7th Cir. 1989), vacated,
Chicago v. Griedrich, 499 U.S. 933 (1991). Although Friedrich was vacated in light of a
contemporaneous Supreme Court case that limited recovery of experts’ fees under §
1988 to stipends for testimonial services, Congress amended the statute to accord with
Posner’s interpretation. See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 102,
superseded by statute, Civil Rights Act of 1991, Pub. L. 102-166, § 113(a)(2), 105 Stat.
1071, 1079 (1991) (amending 42 U.S.C. § 1988(c) (“[T]he court, in its discretion, may
include expert fees as part of the attorney’s fee.”) (emphasis added)).
170
Id.
171
Id. at 518.
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Similarly, courts may read between the lines of a
statute in interpreting a defined term by looking at the items
listed in the definition of the term in conjunction with one
another to determine what “type” of item falls within its
meaning. For example, in one state court case, the court was
required to determine whether a kitten was a “domesticated
animal” under a statute that provided that “[d]omesticated
animals’ includes, but is not limited to, sheep, goats, cattle,
swine, and poultry.”172 Noting that the only animals listed in
the statute were livestock, the court held that the term “is
limited to livestock and does not cover domestic pets.”173 Kittens
simply did not fall within the type of animal suggested by the
list of animals included in the definition of the term.
Conversely, items that are within the type suggested by the list
but that are not explicitly enumerated may be protected.174
A court could also interpret the term “fashion design”
in the DPPA as including all apparel that falls within the
same type as the items listed under the definition of the
term “apparel.” Thus, a court could determine that if a rain hat
is protected as “headgear,”175 a raincoat is protected as
“outerwear”176 and rainboots are protected as “footwear,”177 then
so too should umbrellas, a type of raingear like the other items,
be protected. Or a court could determine more generally that
the type of item listed in the statute includes accessories, and
therefore a man’s wallet should be covered even though it is not
explicitly listed since a wallet is a type of accessory.
In sum, if courts interpret the DPPA broadly, they may
find that an item not explicitly listed under the definition of
“fashion design” and “apparel” nonetheless falls within the
Bill’s scope of protection. In so doing, they may consider the
intent of the item’s creator in producing the work. They may
172
McKinney v. Robbins, 892 S.W.2d 502, 503 (Ark. 1995) (internal quotation
marks omitted) (citing ARK. CODE ANN. §§ 20-19-102).
173
Id. at 504.
174
But see Petry Co., 11 Ct. Cust. App. at 527 (finding that mosaics are not
paintings under the Tariff Act of 1913 even though the statutory list definition of art
should not be interpreted as exhaustive, and even though “[i]t is probably true that
mosaic pictures like the present one are more nearly allied than other mosaic articles
to works of art such as are specified in [the Act’s provision protecting paintings]”);
Peters v. United States, 41 Cust. Ct. 195, 199 (Cust. Ct. 1958) (holding that although a
collage was an “original work of art,” it does not fall within the scope of the statute,
which does not include “collage” as one of its enumerated art forms).
175
176
Id.
177
Id.
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also consider the opinions of experts or other outside
institutions from the fashion world with regard to the item. Or
they may infer that the item was meant to be protected based
on the other types of items that, per the case law or the
statute’s plain meaning, are already protected.
V.
THE POTENTIAL OUTCOMES UNDER EACH OPTION
No single approach outlined above will avoid all the
potential scope problems of over-inclusiveness and underinclusiveness. If the Bill is interpreted using a narrow, strictly
formalist approach, the results could be either under-inclusive
or over-inclusive.178 If the Bill is interpreted broadly, a strictly
intentionalist approach would primarily be too broad, leading
to significantly over-inclusive results,179 while a strictly
institutionalist approach would lead to under-inclusive results
and would be difficult for courts to implement consistently.180
A.
Potential Outcomes Under the Formalist Approach
If courts interpret the DPPA in a strictly formalist way,
the results would potentially be both over- and under-inclusive
in light of the Bill’s purpose.181 Yen recognized this problem
with the formalist doctrine as applied to art, posing four
hypothetical scenarios, each of which “catches the formalist in
a contradiction.”182 In the case of the DPPA, under a strictly
formalist approach, the Bill would discriminate against types of
fashion not enumerated on the list, and many items would be
arbitrarily unprotected. For example, luggage, umbrellas, and
pet wear by recognized designers of “top-tier” fashion would not
receive protection183 since none of these items is explicitly listed
under the definition of “apparel,” and they likely would not
qualify as subcategories of any of the items listed under a strict
178
See infra Part V.A.
See infra Part V.B.
180
See infra Part V.C.
181
See supra Part III for potential problems of over- and under-inclusiveness.
182
Yen, supra note 102, at 254-55.
183
See Polly Blitzer, What’s Hot Now: Umbrella Stands, IN STYLE, Oct. 2006,
at 400 (reporting on umbrella fashion trend amongst celebrities); Nadine Brozan,
Chronicle, N.Y. TIMES, June 28, 1996, at 7 (reporting on the popularity of umbrellas
designed by fashion designer Nicole Miller); Maryellen Gordon, PULSE; Burberrys
Downsizes Classic Brolly, N.Y. TIMES, Dec. 28, 1997, at 9 (discussing a new style of
umbrella by fashion designer Burberry); supra notes 91-92 and accompanying text
(fashion for pets), 93 and accompanying text (designer luggage).
179
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interpretation. Therefore, if Burberry sent models down the
runway clad in the design house’s signature trench coats,
rainboots, and umbrellas, the coats and boots would fall within
the scope of the statute while the umbrellas would not. The
statute would be under-inclusive as there is no logical reason
why umbrellas should be left vulnerable to copying while coats
and boots receive protection. Meanwhile, the Bill might provide
protection to items that were never meant to be protected, such
as cheap mass-produced tote bags or belts sold on the street or
in discount stores, as well as sporting apparel and protective
apparel, since these items fall specifically within the list under
the definition of “apparel.”184 Thus, under a strictly narrow,
formalist approach, the Bill would be arbitrarily overprotective in some areas and under-protective in others.
B.
Potential Outcomes Under the Intentionalist Approach
If courts employ a strictly intentionalist perspective to
interpret the DPPA, the result would likely be a significant
amount of over-inclusion, as well as a minor amount of underinclusion, of items protected. Yen criticized the intentionalist
approach in the context of art, explaining that “the definition of
art will become too broad,” thus “cheapening” the meaning of
the term.185 He also pointed out that as a practical matter,
“evidence of an author’s intention is often missing or
unclear.”186 Similarly, in the context of the DPPA, all creators of
apparel from all levels of the fashion pyramid seeking
protection under the statute could claim that they intended
their creation to be “fashion.”187 Objective evidence of intent
may be difficult to establish and not very credible since the
creator’s intent is seldom reflected in the finished product of
the fashion design.188 Therefore, cheap, mass-produced items,
184
See supra Part III.
Yen, supra note 102, at 258.
186
Id. at 264.
187
For an analogous situation, see Poe v. Missing Persons, 745 F.2d 1238,
1239-43 (9th Cir. 1984), and Morris v. Buffalo Chips Bootery, 160 F. Supp. 2d 718, 72021 (S.D.N.Y. 2001). In both cases, the plaintiffs argued that their creations were not
useful articles of clothing, but rather non-utilitarian objects of art and therefore
qualified for copyright protection. Poe, 745 F.2d at 1239; Morris, 160 F. Supp. 2d at
720-21. In Poe, the court remanded the case to the trial court to make the factual
determination, 745 F.2d at 1243, while in Morris the court flat-out rejected the
creator’s intent argument, 160 F. Supp. 2d at 721.
188
In contrast, objective evidence of the author’s intent may be available for
other aesthetic works, such as the design plans for the trophy in NASCAR v. Scharle,
185
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which are not intended to be protected, may nevertheless fall
within the statute’s scope189 so long as the creator of the item
can show that he or she intended to create fashion. Moreover,
at least one well-known designer of top-tier fashion, Manolo
Blahnik, does not identify himself as a fashion designer at all,
but as an artist.190 His designs, as well as those of like-minded
designers, would arbitrarily fall outside the scope of the
legislation, even though most would agree that regardless of
his intentions, Blahnik’s creations certainly qualify as
fashion.191 Thus, at least some items from within the top tier of
the fashion pyramid would be excluded from protection if
courts focused solely on the intent of the creator. Under a
strictly broad, intentionalist approach, the Bill would be largely
over-protective and also in some cases under-protective as well.
C.
Potential Outcomes Under the Institutionalist Approach
If courts employ a strictly institutionalist approach in
interpreting the DPPA, the likely result would be underinclusion of items that should receive protection to further the
purposes of the Bill, as well as significant unpredictability.192
Many young, emerging designers—the designers that the
statute is most clearly meant to protect193—may not receive
immediate recognition and validation from the fashion
industry, leaving their designs vulnerable under the statute.
Moreover, some cheap, mass-marketed apparel that was not
intended to be protected may nevertheless be recognized by the
fashion media, thus posing a threat of over-inclusiveness if
such items were recognized as “fashion design” merely because
where the court found that the “extreme exactness” of the designs indicated that they
had been created in order to be used as plans for a trophy, not simply as drawings. 356
F. Supp. 2d 515, 529 (E.D. Pa. 2005).
189
See supra Part III (discussing the purpose of the Bill and risk of overinclusiveness).
190
Jae-Ha Kim, Well-Heeled Stars Love Their Manolos, CHI. SUN-TIMES, Aug.
30, 2000, at 57 (quoting Manolo Blahnik saying “My shoes are not fashion. They are
gestures; objects that happen to be fashion.”)
191
Blahnik’s stiletto shoes are regularly featured in fashion magazines and
they have been recognized as “footwear icons.” In 1996, Blahnik received a special
“Stiletto Award” from the Council of Fashion Designers of America. Sarah Lyall,
Talking the High-Heel Walk, N.Y. TIMES, Feb. 8, 1998, at 91; Saul Hansell, High
Fashion Goes on Sale on the Web, N.Y. TIMES, Sept. 18, 2000, at C1; see also Phoebe
Eaton, Who Is Jimmy Choo?, N.Y. TIMES, Dec. 1, 2002, at 6102 (noting that “Blahnik
remains the visionary against whom all other high-end shoemakers are judged”).
192
See supra Part II.C (discussing the purposes of the DPPA).
193
See supra Part II.C.
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DEFINING FASHION
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of such publicity. For example, some women’s fashion
magazines feature articles on clothing that looks like top-tier
fashion, but which in reality comes from the lower tiers of the
fashion pyramid.194
However, the most significant problem that a court
taking a purely institutionalist approach would face is
determining how to define the “fashion world.” Yen
acknowledges that in the case of art, “[t]o classify [objects] as
artworks just because they are called art by those who are
called artists because they make things they call art is not to
classify at all, but to think in circles.”195 Similarly, in the
context of fashion, defining “fashion design” as something that
is recognized by the “fashion world” begs the question: what is
the fashion world? Who qualifies as a fashion “expert” in the
United States fashion industry, which is sprawling and
difficult to define?196 While the fashion industry would seem to
have the most institutional competence to make
determinations about what constitutes “fashion,” courts may
face significant difficulties in defining the industry, thereby
making a solely institutionalist approach difficult to implement
as well as potentially under-inclusive.197
D.
No Perfect Solution
Thus, no single interpretive approach will yield results
entirely consistent with the DPPA’s objectives. If courts choose
to employ a single approach for all interpretations of the Bill,
this would inevitably result in protection for items that were
never meant to be protected (the formalist approach and the
intentionalist approach), or would leave unprotected items
clearly meant to be protected (all three approaches), or would
194
For example, the items featured in the “steal” section of Marie Claire’s
“Splurge or Steal” column, which often includes exact copies, such as A.B.S. by Allan
Schwartz’s dresses, are featured by a women’s fashion magazine but are clearly not
meant to receive protection. See Raustiala & Sprigman, supra note 39, at 1705-11.
195
Yen, supra note 102, at 260 (quoting Monroe C. Beardsley, An Aesthetic
Definition of Art, reprinted in AESTHETICS AND THE PHILOSOPHY OF ART—THE
ANALYTIC TRADITION 55, 60 (Peter Lamarque & Stein Haugom Olsen eds., 2003)).
196
See supra Part II.B (discussing the U.S. fashion industry).
197
Similarly, unpredictability may result if courts choose to interpret the
statute based on the type of items that are clearly already protected, the approach
taken by Judge Posner in Friedrich. See supra Part IV.C.3. To what levels of
abstraction would courts interpret the meaning of the items already protected in order
to find that a particular item is also protected? This would depend on the discretionary
judgment of the courts and therefore would be difficult for litigants to determine in
advance.
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lead to unpredictable judicial outcomes (the intentionalist
approach). Formalism may be the most predictable approach,
since litigants would be assured that those items that are
explicitly listed in the Bill would be protected, but this
approach does not account for items such as umbrellas and
luggage that would seem to be fashion and thus deserving of
protection.198 Intentionalism would more likely protect those
items, since their creators could testify that they intended to
create “fashion,” but this approach is so broad that virtually
anything could be protected, even mass-produced items with
low design content.199 Institutionalism would avoid this overbreadth since it requires confirmation of the items’ status as
fashion from fashion “experts” and institutions, but the
approach may fail to protect emerging artists—one of the
central purposes of the Bill—and would lead to unpredictable
outcomes for litigants.200 Thus, the Bill has been drafted in a
way that risks undermining the purpose of the proposed
legislation by providing protection for those who do not need it,
while denying protection to those most vulnerable to piracy,
such as emerging designers.
VI.
LIKELY RESULT AND RECOMMENDATIONS
A.
The Interpretive Approach Employed Will Depend on
the Case
Given that no one interpretive method will consistently
lead to results that further the DPPA’s purpose,201 courts will
likely apply whatever approach (or approaches) they feel to be
most appropriate in any given case. Yen recognized this in the
context of cases involving art, observing that the “overlapping
pattern of strengths and weaknesses” of each aesthetic
approach “practically guarantees that none of these theories
will emerge as the comprehensive, authoritative definition of
art.”202 Indeed, in most cases involving a statute governing
“art,” courts have invoked varying, sometimes multiple
approaches, emphasizing one perspective over another
198
199
200
201
202
See supra Part V.A.
See supra Part V.B.
See supra Part V.C.
See supra Part V.D.
Yen, supra note 102, at 260.
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depending on the facts of the case and the purpose of the
statute being invoked.203
For example, in Botello v. Shell Oil Co., the court
predominantly used formalist reasoning in holding that a
mural was a “painting” under the California Art Preservation
Act,204 while in Pollara v. Seymour, the court emphasized the
intentions of the work’s creator in holding that a banner was
not a “work of visual art” under VARA because it was an
advertisement, and advertisements are explicitly excepted from
VARA protection.205 The intentionalist approach was more
appropriate in Pollara than in Botello since there the decision
turned on the purpose of the work (whether it was meant as an
advertisement). Conversely, in Botello, the artist’s intent to
create a mural did not answer the question of whether a
“mural” fell within the definition of “painting” and thus a
formalist approach was more appropriate. The Phillips court
invoked all three interpretive approaches in determining
whether a public sculpture park was a “work of visual art”
under VARA, although the analysis focused on the formalist
approach.206 In addition to invoking dictionary definitions of
“sculpture” to determine that the park did not qualify for the
statute’s protection (a formalist approach),207 the court also took
an intentionalist perspective, noting the artist’s intent
regarding the identity of his sculptures,208 as well as an
institutionalist perspective, citing art experts’ opinions on
whether the park was sculpture.”209 However, the court
emphasized the legislative intent that VARA be construed
narrowly in ultimately focusing the bulk of its analysis on
formalist reasoning.210
In the case of the DPPA, courts may similarly employ
the approach(es) most appropriate to a particular case, given
the case’s facts and the purpose of the legislation. For example,
203
Yen notes that in copyright cases courts employ the analytical perspective
based on how “subjective and aesthetically controversial” it is compared to the other
approaches, given the facts of a particular case. Id. at 298.
204
Botello v. Shell Oil Co., 280 Cal. Rptr. 535, 538 (Ct. App. 1991).
205
Pollara v. Seymour, 344 F.3d 265, 265-66, 270 (2d Cir. 2003).
206
See Phillips v. Pembroke Real Estate, Inc., 288 F. Supp. 2d 89, 99 (D.
Mass. 2003).
207
See supra Part IV.B.1.
208
“[He] believes that his sculptures . . . are works of visual art . . . and are
meaningful only if they remain in [the park].” Phillips, 288 F. Supp. 2d at 94.
209
“[The artist’s expert] concedes that a park does not meet the traditional
definition of sculpture.” Id. at 99.
210
Id.
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courts may decline to use an institutionalist approach when the
case involves a work by a young designer who has not yet been
recognized within the fashion community. Instead they could
adopt a formalist or intentionalist perspective in determining
whether the work qualifies for protection to avoid undermining
the Bill’s goal of protecting emerging designers. By contrast,
courts may emphasize institutionalist or intentionalist
rationales in cases involving items not explicitly listed under
the Bill’s definition of “fashion design,” such as umbrellas and
garments designed for pets. Moreover, just as the Phillips court
cited the legislative intent that VARA be interpreted narrowly
to justify its formalist reasoning, courts are likely to look to the
congressional intent behind the DPPA, as yet to be articulated
and debated through the legislative process, to determine
which approach best furthers the purpose of the statute.211
B.
Recommendations
Given the variety of approaches courts might take to
interpreting the Bill, Congress should address its scope as well
as the way it should be interpreted in order to promote
predictability for litigants and to reduce the likelihood that
courts will undermine its purpose. Congress should debate
these issues and revise the proposed statutory language to
provide guidance to the courts.
First, Congress should be explicit about the purpose of
the legislation and whether it is meant to be interpreted
broadly or narrowly, perhaps in an expanded preamble.212
Courts have frequently considered congressional intent in
determining how to construe VARA, citing the House Reports
as evidence that Congress intended the statute to be
interpreted narrowly and noting that congressional debate
indicated that the statute’s scope was to be “limited to certain
carefully defined types of works and artists.”213 In the case of
the DPPA, Congress should similarly address whether the
211
The current legislative intent of the DPPA is to protect fashion designers,
especially emerging designers from the top tier of the fashion pyramid, and to promote
the United States’ fashion industry. See supra Part II.C. This Note presumes that this
will remain the purpose of the proposed legislation if it is enacted.
212
Instead of just “to provide protection for fashion design,” as the Bill
currently reads, see supra text accompanying note 77, the preamble could say
something that would more specifically reflect the Congressional intent behind the Bill,
such as: “to provide protection for fashion design to protect the United States’ fashion
industry and its high-end designers.”
213
See, e.g., Pollara v. Seymour, 344 F.3d 265, 269 (2d Cir. 2003).
2008]
DEFINING FASHION
767
legislation should be interpreted narrowly or broadly, and
whether it is meant to be limited to “certain carefully defined
types of works and [fashion designers],” such as designers of
top-tier fashion and emerging designers. Indeed, Congress
should explicitly state how the law is to be interpreted in the
statutory text, thereby illuminating its position even more
clearly than in the case of VARA, so that courts do not have to
divine intent from debate records. This would help courts
decide whether to view a particular case through a formalist,
institutionalist, or intentionalist lens. It would also promote
predictability as courts could decide cases in ways that
consistently reflect the articulated legislative goal.
Second, the proposed legislation should be amended to
leave more flexibility in the statutory language defining
“apparel” in order to reduce the harshness of the formalist
approach and prevent inequitable results,214 especially if
Congress indicates that the Bill should be interpreted
narrowly. For example, a “miscellaneous” category could be
added under the definition of “apparel.” After stating
“apparel means . . . an article of men’s, women’s, or children’s
clothing, . . . handbags, purses, and tote bags; belts; and
eyeglass frames,”215 the phrase, “and all similar items” could be
added to the end of the list. Or the definition could be amended
to read “the term ‘apparel’ includes, but is not limited to . . . .”
This construction would allow courts to interpret the statutory
language literally while preventing the strict exclusion of items
not explicitly listed but which should sometimes be protected,
such as luggage and briefcases.216 It would also invite courts to
interpret the term “fashion design” as including apparel that
falls within the same type as the items listed under the
definition of the term “apparel.”217 Although allowing courts
more discretion may lead to greater unpredictability for
litigants, the potential uncertainty would be reduced if
Congress clearly articulates its goals for the legislation and as
case law interpreting the legislation develops. Congress could
also reduce the likelihood of inequitable outcomes resulting
from formalist interpretations of the legislation by expressly
214
See supra Part V.A. (discussing the potential problems with the formalist
approach).
215
See supra text accompanying notes 66-70 (describing the structure of the
VHDPA).
216
217
See supra Part V.A.
See supra Part IV.C.3.
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excluding certain items from the Bill’s protection, such as
mass-produced apparel.218 This would codify the congressional
intent and thereby lower the risk that items such as sporting
apparel and protective clothing would unwittingly be granted
protection under the Bill.219
Third, Congress should provide guidance as to what
sources courts should consult to interpret its terms, such as the
designers themselves or experts from the industry especially if
Congress indicates that the Bill should be interpreted broadly.
For example, regarding VARA, Congress specified, “[C]ourts
should use common sense and generally accepted standards of
the artistic community in determining whether a particular
work falls within the scope of the definition.”220 Congress could
similarly specify whether courts should use “common sense,”
“generally accepted standards of the [fashion] community,” or
the designer’s intentions to determine whether a particular
item falls within the scope of the DPPA.221 These types of
specifications would lead to more predictable outcomes for
litigants, who could then foresee in advance which interpretive
approach(es) the courts would be most likely to rely on.
218
For example, VARA is limited by the definition of “visual art” in Title 17,
which explicitly provides that a “work of visual art does not include . . . any
merchandising item or advertising, promotional, descriptive, covering, or packaging
material or container.” 17 U.S.C. § 101 (2000). The Pollara court cited this definition in
finding that the banner at issue was not protected by VARA. 344 F.3d at 265-66.
Moreover, VARA also specifically excludes mass-produced objects, providing that in
order to receive protection, the item must exist in no more than 200 copies. 17 U.S.C.
§ 101 (2000). Congress could provide a similar limitation on the protection granted to
fashion items under the DPPA.
219
See supra note 88 and accompanying text. A more drastic option to
eliminate some of the problems associated with a narrow interpretation of the
legislation would be for Congress to cut out the definition of “apparel” altogether and
let courts decide, based on their own understanding of the term, what constitutes
“apparel.” One commentator recently proposed an amendment to Title 17 that would
provide protection for apparel designs. In her mock amendment, which would serve
“[t]o strengthen the intellectual property laws of the United States by providing
apparel protection of original apparel designs,” the author proposed that “[t]he design
of a garment” be subject to protection, but unlike the DPPA, the amendment does not
define “garment” or “apparel.” Nurbhai, supra note 18, at 525-37. However, Congress
may wish to give courts and litigants an idea of the types of items that certainly are
covered, just as many legislatures define “art” by providing a list of what is included
within this broad term. See supra note 119.
220
Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 84 (2d Cir. 1995) (citing H.R.
Rep. No. 514, at 11 (1990)).
221
Id.
2008]
VII.
DEFINING FASHION
769
CONCLUSION
This Note explores the question of what is “fashion
design” under the Design Piracy Prohibition Act. Because the
answer is not as clear as it may initially seem, Congress should
give greater guidance to courts as to the Bill’s scope of
protection if it is enacted into law. As written, the Bill risks
being both over-inclusive by providing protection for items that
were likely not meant to be protected, and under-inclusive by
failing to provide protection for items that fall within what
seems to be the primary purpose of the Bill. Just as courts
judging art take a variety of approaches to interpreting the
meaning of “art,” courts interpreting the meaning of “fashion
design” under the Bill could employ various interpretive
perspectives, each potentially resulting in different, possibly
problematic, outcomes. Both to avoid the risk of overinclusiveness and under-inclusiveness and also to promote
greater predictability for litigants, Congress should give
greater guidance to the courts as to how the legislation is to be
interpreted.
Elizabeth F. Johnson†
†
J.D. Candidate, Brooklyn Law School, 2008; A.B., Politics, Princeton
University, cum laude, 2004. Thanks to my advisor, Professor Michael Cahill, as well
as to the members of the Brooklyn Law Review, especially Meaghan Atkinson, Ilana
Miller, and Bradley Benedict for their invaluable feedback and editing suggestions. I
also thank my family, George, Yolanda, Alexandra, and Samuel Johnson, for their
tremendous love and support.
Ending the Uniformity of Residential
Real Estate Brokerage Services
ANALYZING THE NATIONAL ASSOCIATION OF
REALTORS’ MULTIPLE LISTING SERVICE
UNDER THE SHERMAN ACT
I.
INTRODUCTION
Buying a home is frequently described as the most
significant transaction people undergo during their lifetime.1
Because the home-buying process can often be complicated and
overwhelming, most buyers enlist the help of a real estate
agent.2 Similarly, most sellers hire a real estate agent to list
and market their property.3 As a result, real estate agents are
involved in approximately eighty-one percent of all residential
real estate closings in the United States.4 Over $60 billion were
spent on brokerage services in 2005,5 and the National
Association of Realtors (“NAR”) is the largest professional
1
See, e.g., Robert W. Hahn et al., Bringing More Competition to Real Estate
Brokerage, 35 REAL EST. L.J., Summer 2006, at 86-87; Lawrence J. White, The
Residential Real Estate Brokerage Industry: What Would More Vigorous Competition
Look Like?, 35 REAL EST. L.J., Summer 2006, at 11, 14 (noting that typical residential
real estate transactions “involve[] a sales/purchase price that is well into six figures,
and seven-figure transactions are becoming commonplace in many areas”).
2
Eighty-five percent of homebuyers report using a real estate agent to locate
properties at some point during their search. Karen Janisch, National Association of
Realtors, Field Guide to Quick Real Estate Statistics, http://www.realtor.org/libweb.nsf/
pages/fg006 (last visited Nov. 20, 2007).
3
Agents advise sellers on their asking price, list their property for sale,
advise them on selling strategies, market the property, and assist at closing. See, e.g.,
Hahn et al., supra note 1, at 91.
4
Ten percent of purchases result from dealings between a builder and
purchaser directly, and only five percent of sales result from “for sale by owner”
(“FSBO”) transactions. Janisch, supra note 2.
5
Residential Real Estate Brokerage Services: A Cockamamie System that
Restricts Competition and Consumer Choice: Testimony Before the H. Financial Servs.
Comm., and Housing & Community Opportunity Subcomm., 109th Cong. 1-2 (2006)
(statement of Stephen Brobeck, Consumer Federation of America) [hereinafter Brobeck
Testimony], available at http://www.consumerfed.org/pdfs/CFA_Executive_Director_
Brobeck_Testimony_on_Residential%20Real_Estate_Brokerage_Services.pdf.
771
772
BROOKLYN LAW REVIEW
[Vol. 73:2
association in the world.6 The NAR’s membership is at its all
time high, with approximately 1.3 million enrolled members.7
Real estate agents exchange information regarding
properties for sale through the Multiple Listing Service
(“MLS”). The MLS, created over a hundred years ago, is a
collective database of pooled real estate listings where brokers
both list their clients’ properties for sale and browse the
listings of other brokers.8 There are more than 900 MLSs
operating across the United States today,9 most of which are
owned and controlled by local chapters of the NAR.10 The MLS
is widely recognized for increasing efficiency in the residential
real estate market.11 The MLS decreases transaction costs for
brokers by allowing them to access property listings for an
entire region just by “pointing and clicking,” rather than
having to spend time searching for “for sale” signs in
neighborhoods.12 Additionally, the MLS has been applauded for
increasing broker competition by allowing real estate agents of
6
National Association of Realtors, How to Join NAR, http://www.realtor.org/
realtororg.nsf/pages/HowtoJoin (July 6, 2007).
7
Id.; National Association of Realtors, About NAR, http://www.realtor.org/
about_nar/index.html (reporting 1,363,493 members as of July 31, 2007) (last visited
Aug. 29, 2007).
8
White, supra note 1, at 15; see also Mariwyn Evans, What’s Next for the
MLS?, REALTOR MAG. ONLINE, June 1, 2006, www.realtor.org/rmomag.NSF/pages/
feature3juno6?OpenDocument.
9
Evans, supra note 8.
10
See PATRICK WOODALL & STEVEN BROBECK, CONSUMER FEDERATION OF
AMERICA, NONTRADITIONAL REAL ESTATE BROKERS: GROWTH AND CHALLENGES 9
(2006), http://www.consumerfed.org/pdfs/Nontraditonal_Real_Estate_Brokers-Growth_
and_Challenges.pdf; see also Hahn et al., supra note 1, at 96; American Homeowners
Grassroots Alliance, Comments at the U.S. Federal Trade Commission and the U.S.
Department of Justice Public Workshop on Competition Policy and the Real Estate
Industry (Oct. 25, 2005), available at http://ftc.gov/os/comments/realestatecompetition/
518795-00200.pdf.
11
See, e.g., Arthur D. Austin, Real Estate Boards and Multiple Listing
Systems as Restraints of Trade, 70 COLUM. L. REV. 1325, 1329-30 (1970); White, supra
note 1, at 15 (noting that the MLS reduces the transaction costs for both the buyer and
seller).
12
See, e.g., Marianne M. Jennings, Multiple Listing Services—Antitrust and
Policy, REAL ESTATE L.J., Fall 2003, at 140, 140 (“Rather than having to ‘trawl
neighborhoods’ for ‘For Sale’ signs as a means of discovering the available inventory in
the housing market, realtors, sellers, and buyers can point, click and scroll to discover
the market in Chandler, Arizona or Bar Harbor, Maine.” (citing Freeman v. San Diego
Ass’n of Realtors, 322 F.3d 1133, 1140 (9th Cir. 2003))); Evans, supra note 8
(“[C]onsumers had to visit every brokerage office in town to be sure of seeing all
available properties. Brokers had to spend hours negotiating cooperative agreements
with other companies before showing a listing.” (describing the practice of a residential
real estate broker before the advent of the MLS)).
2008]
THE NAR, THE MLS, AND THE SHERMAN ACT
773
different experience levels to compete in the same market.13
Because of the dominance of the MLS, the Department of
Justice describes real estate agent access to the MLS as
“critical to compete in the local market.”14 The Fifth Circuit
calls it “essential to a broker’s ability to compete effectively.”15
So while the MLS undeniably increases efficiency in the real
estate market, the overwhelming dominance of the MLS also
creates a risk that those in control of it, “having assumed
significant power in the market, [will] also assum[e] the power
to exclude other competitors from access to its pooled
resources.”16
In fact, obtaining access to the MLS’s invaluable listings
is often made conditional on the agent becoming a member of
his or her state and local affiliate of the NAR17 as well as the
13
See, e.g., Oates v. E. Bergen County Multiple Listing Serv., Inc., 273 A.2d
795, 797 n. 3 (N.J. Super. Ct. Ch. Div. 1971) (“[T]he MLS provides ‘the small office with
inventory and promotion potentials equal to those of the larger firms . . . .’” (quoting
James R. Pickett, Note, Arbitrary Exclusion from Multiple Listing: Common-Law and
Statutory Remedies, 52 CORNELL L.Q. 570, 570 (1967) (internal citation omitted)).
14
Press Release, Department of Justice, Justice Department Sues National
Association of Realtors For Limiting Competition Among Real Estate Brokers (Sept.
8, 2005) [hereinafter DOJ Sues NAR], available at http://www.usdoj.gov/atr/public/
press_releases/2005/211008.pdf.
15
United States v. Realty Multi-List, Inc., 629 F.2d 1351, 1370 (5th Cir.
1980); see also Reifert v. S. Cent. Wis. MLS Corp., 450 F.3d 312, 315 (7th Cir. 2006)
(“Access to this multiple listing service is a necessity for real estate agents and
appraisers in this area.”); Marin County Bd. of Realtors v. Palsson, 549 P.2d 833, 842
(Cal. 1976) (noting the substantial market power of the local MLS, and stating that
“[t]he problems of a nonmember of the board in competing against this colossus are
manifest”); White, supra note 1, at 16 (noting that if a broker were not able to list on
the MLS, he or she “would be at a substantial disadvantage.”).
16
Realty Multi-List, 629 F.2d at 1370; see also White, supra note 1, at 16
(“[T]he ability of the collective members of a MLS to exclude rivals, especially if those
rivals are ‘mavericks’ who are price-cutters with respect to commissions, can be a
powerful way of enforcing a high-fee structure and thus of maintaining the collective
exercise of market power.”).
17
This Note will refer to state and local affiliates of the NAR as “Realtors
Associations.” “Realtor” is the trademarked name for a real estate agent who is a
member of the NAR. Although traditionally used to describe all brokers and agents, the
NAR trademarked the term in 1947.
Some brokers and commentators believe that this is an illegal trademark.
See, e.g., DAVID BARRY, NINE PILLARS OF THE CITADEL 39-44 (2005), available at
http://www.barryfirm.com/dnld/Nine-Pillars-Citadel.pdf. (Barry is the pioneer of the
“Open MLS” movement, advocating for public access of the MLS, and was lead attorney
for three challenges to NAR practices in federal courts in 2006.) In one case, a plaintiff
unsuccessfully challenged the Realtor trademark, complaining that she was injured
after she withdrew from the Realtors association for being poorly treated and was no
longer allowed to describe herself as a Realtor. Pope v. Miss. Real Estate Comm’n, 872
F.2d 127, 128-29, 133 (5th Cir. 1989).
774
BROOKLYN LAW REVIEW
[Vol. 73:2
NAR itself.18 One study reports that eighty-four percent of the
MLSs across the country require membership in a Realtors
association in order to access the system.19 Each NAR member
must pay significant dues to the organization each year and
agree to abide by its code of conduct.20 Some brokers feel forced
to join the NAR in order to access the MLS.21 These brokers
may not agree with the practices of the NAR, and would prefer
to join a trade organization that is better suited to their own
practice.22 The NAR’s expansive membership and abundant
resources gives the organization power in shaping the market
for residential real estate.23 The NAR arguably uses this power
to encourage dominance of the “traditional” model for
brokerage, which in turn helps to maintain suspiciously high
and constant commission rates for Realtors.24
This Note argues that requiring real estate brokers to
purchase memberships in a NAR-affiliated association in order
to access the MLS should be illegal.25 First, it argues that
18
See, e.g., Glen Justice, Lobbying to Sell Your House, N.Y. TIMES, Jan 12,
2006, at C1. (“[The NAR] has an iron grip on its members. For access to property
listings, individual agents and the brokers who employ them must belong to the
national association and their state and local affiliates.”); see also BARRY, supra note
17, at 25; Hahn et al., supra note 1, at 96-97.
19
BARRY, supra note 17, at 25. This statistic was obtained by hiring a
consultant to survey the top 100 MLS markets in the United States to determine
whether they required Realtors association memberships in order to access the MLS.
The data were then verified by a forensic accounting firm. Id. at 24.
20
The plaintiff in one case spent $449 a year in annual dues in order to join
the local, state, and national association of realtors in order to obtain MLS access.
Reifert v. S. Cent. Wis. MLS Corp., 450 F.3d 312, 315 (7th Cir. 2006).
21
See, e.g., Reifert, 450 F.3d at 315-16 (plaintiff real estate broker had “no
desire” to maintain his membership in the local and national NAR, but maintained his
membership in order to maintain his MLS access); Buyer’s Corner, 410 F. Supp 2d at
577 (plaintiff alleged that she continued her Realtor’s Association membership solely in
order to gain access to the MLS).
22
See Reifert, 450 F.3d at 315-16 (plaintiff, an “exclusive buyer’s agent,” and
member of the National Association of Exclusive Buyer’s Agents, objected to being
forced to comply with the NAR’s code of ethics in order to access the MLS); Buyer’s
Corner, 410 F. Supp. 2d 574, 577 (plaintiff, an “exclusive buyer’s agent,” was a member
of the National Association of Exclusive Buyer’s Agents and “believ[ed] that NAR and
its affiliates are unethical because they permit real estate brokers to represent both the
buyer and the seller in a single transaction.”).
23
See Michael K. Braswell & Stephen L. Poe, The Residential Real Estate
Brokerage Industry: A Proposal for Reform, 30 AM. BUS. L.J. 271, 303 (1992).
24
See discussion infra Part II.B and II.C.
25
Historically, real estate agents alleging various antitrust grounds have
sought with varying degrees of success to invalidate this practice as an illegal restraint
on free competition in the industry. See, e.g., Thompson v. Metro. Multi-List, Inc., 934
F.2d 1566, 1571 (11th Cir. 1991) (challenging the practice on alternate group boycott,
tying, and monopolization theories); Wells Real Estate, Inc. v. Greater Lowell Bd. of
Realtors, 850 F.2d 803, 806 (1st Cir. 1988) (challenging the conditional membership
2008]
775
requiring brokers to join the NAR is an antitrust violation
under Section 1 of the Sherman Act26 on two separate theories:
(1) as an illegal “tying” arrangement and (2) as a group
boycott.27 Alternatively, this Note argues that absent a judicial
remedy, state real estate commissions should adopt bright-line
rules forbidding the practice for public policy reasons. However,
because these commissions are often dominated by
traditionalist Realtors,28 they may be unwilling to limit NAR
power. Therefore, it may be necessary for state or federal
legislatures to prohibit the practice.
To understand how the NAR encourages preservation of
the status quo in real estate brokerage, it is necessary to have
a basic understanding of the nature of a broker’s role in the
residential real estate transaction. Additionally, the factintensive nature of antitrust analysis requires an
understanding of the industry to which it is being applied. Part
II.A provides this background; it describes both traditional and
new brokerage models for residential real estate. Part II.B
discusses the current state of competition in the residential
real estate industry. Part II.C demonstrates how Realtors
association arrangements requiring NAR-affiliated association
membership in order to access an MLS negatively affect
competition in the residential real estate industry. Part II.D
describes real estate agent membership associations that cater
to alternative brokers.
requirement as an illegal tying arrangement); United States v. Realty Multi-List, Inc.,
629 F.2d 1351, 1358-59 (5th Cir. 1980) (challenging an association’s membership
requirements as overly restrictive). There has been a recent resurgence of litigation
regarding the practice. Three recent federal court cases challenged the arrangement,
although none was successful. Reifert, 450 F.3d at 316, 321); Prencipe v. Spokane Bd. of
Realtors, No. CIV-04-0319-LRS, 2006 WL 1310402, at *3 (E.D. Wash. May 12, 2006);
Buyer’s Corner, 410 F. Supp. 2d. at 577, 584.
26
15 U.S.C. § 1 (2000).
27
A third possible theory, not discussed in this Note, is the essential facilities
doctrine. The essential facilities doctrine is rooted in Section two of the Sherman Act.
The doctrine forbids one competitor firm from controlling a facility “essential” to
effective competition in the market and denying access to such facility to competitors
when it is a service that cannot be easily duplicated. See, e.g., Montogomery County
Ass’n of Realtors, Inc. v. Realty Photo Master Corp., 878 F. Supp. 804, 817 (D. Md.
1995). The Supreme Court has neither officially adopted nor repudiated the essential
facilities doctrine. See Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, 540
U.S. 398, 410-11 (2004). No case attempting to apply the theory to this situation was
found.
28
Braswell & Poe, supra note 23, at 323; see also Brobeck Testimony, supra
note 5, at 8 (describing a study that found that nearly four fifths of all state
commissioners are practicing real estate brokers—one-fourth of which work for the four
largest real estate brokerage firms in the country).
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[Vol. 73:2
Part III introduces the Sherman Act and the applicable
tying and group boycott theories. That Part illuminates how
the law in these areas has changed over time, how it continues
to change, and its current posture. Part IV argues that the
NAR should not be permitted to require real estate agents to
join a Realtors association in order to access an MLS because it
is a tying arrangement in violation of the Sherman Act. Part V
argues that the practice is an illegal group boycott under the
Sherman Act. Part VI emphasizes that absent a judicial
remedy, state real estate commissions or legislatures should
create bright-line rules forbidding the arrangement.
II.
BACKGROUND
A.
The Real Estate Agent’s Role in the Residential
Real Estate Transaction
1. The Traditional Brokerage Model
In the traditional model for conducting a residential real
estate transaction (also known as “full service brokerage”),29 the
seller contracts with a broker to list his or her property for sale.
The broker markets the property and helps the seller negotiate
the deal.30 This broker is called the “listing agent.”31 The listing
broker’s contract with the seller will usually be an “exclusive
right to sell listing.”32 In an exclusive listing agreement, the
seller agrees not to seek the services of another broker, which
limits his or her dealings with buyers to only the one listing
agent.33 Agency law governs the relationship between agents
and their clients.34 Therefore, a real estate agent owes a
fiduciary duty to his or her client, including the duties of
loyalty and good faith.35
29
Brobeck Testimony, supra note 5, at 4.
31
32
Braswell & Poe, supra note 23, at 272 (comparing the seller-beneficial
dominant form of listing agreements of 60 years ago to today’s dominant “exclusive
right to sell listing,” which favors brokers); Hahn et al., supra note 1, at 91 (“Home
sellers are typically required to enter into an exclusive agreement with the agent
trying to sell their home . . . .”).
33
See Hahn et al., supra note 1, at 91.
34
Katherine A. Pancak, Thomas J. Miceli & C.F. Sirmans, Real Estate
Agency Reform: Meeting the Needs of Buyers, Sellers, and Brokers, REAL EST. L.J.,
Spring 1997, at 346-47.
35
Id.
30
2008]
777
Generally, the seller’s agreement with the listing broker
requires the broker to list the seller’s property on the MLS.36
All brokers with MLS access are then welcome to show the
property to potential purchasers.37 The agents who show the
property to buyers—called “selling brokers” or “cooperating
brokers”—are traditionally considered a mandatory sub-agent
of the seller.38 Therefore, under the traditional model, the
broker who interacts with the buyer, showing them properties,
is actually an agent of the seller. Accordingly, it is to the seller
that the agent owes a fiduciary duty. The listing broker and the
selling broker then split the commission, which the listing
broker sets, and the buyer usually pays.39
This arrangement clearly has negative implications for
the buyer.40 A common buyer misconception is that the broker
with whom they are working represents their interests.41 As a
result, the NAR changed its policy to allow listing brokers to
offer “cooperation and compensation” to selling brokers, rather
than mandating a seller’s “sub agent” relationship.42 This rule
allows selling brokers to enter into separate agency agreements
with buyers.43 However, many agents desire to simultaneously
represent the buyer and seller, acting as both the listing and
the selling broker in order to retain the entire commission from
the deal.44 This common practice, called “dual agency,” raises
many of the same problems of the sub-agency relationship.45
36
Id. at 347.
Id.
38
Id at 347-48.
39
Hahn et al., supra note 1, at 91 (the listing broker splits their fee with the
selling broker); RAY WILSON, BOUGHT, NOT SOLD: SINGLE AGENCY, BUYERS’ BROKERS,
FLAT FEES, AND THE CONSUMER REVOLUTION IN REAL ESTATE 7 (1998) (the buyer pays
the fee). While in theory, the commission is negotiable, in practice this is rarely the
case. See, e.g., Amy Hoak, Do Your Homework Before Hiring a Real Estate Agent,
THOMPSON FINANCIAL NEWS, Aug. 23, 2006. Some commentators argue that “feesplitting” will no longer be the norm if the industry becomes truly competitive; rather,
buyers and sellers might compensate their individual brokers directly. E.g., White,
supra note 1, at 27 (noting that the current arrangement might “be an incidental
artifact of the current fixed-fee brokerage structure”).
40
See WILSON supra note 39, at 7. Wilson describes this system as “a picture
with a patent and compound unfairness painted over—the fact that those paying for
[the agent] not only were unrepresented, but led into trusting an agent of the other
side as their own!” Id.
41
Id.; Pancak et al. supra note 34, at 349.
42
Pancak et al. supra note 34, at 352.
43
Id.
44
See, e.g., White, supra note 1, at 16.
45
WILSON, supra note 39, at 6. Wilson describes the relationship as really
one of “non agency” because adverse parties’ interests simply cannot be protected by
the same person in a transaction. Id. Because this situation by its nature violates
37
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Surveys and studies, including an Federal Trade
Commission study examining the residential real estate
industry in 1983, show that buyers often believe that the
selling broker represents them.46 As a result of these studies,
almost all states passed “disclosure laws” that require real
estate agents to inform their clients who they represent.47
Similarly, the NAR Code of Ethics now requires an agent who
represents both the buyer and the seller in a transaction to
disclose the potential conflict.48 Nevertheless, recent reports
note that the required disclosure does not happen as frequently
as it should.49 A study by the NAR found that one in five buyers
did not sign a disclosure agreement, and one in five did not
know if they had.50 A quarter of first time buyers said they did
not sign one.51
Thus, under the traditional model for real estate
brokerage, the buyer’s interests are not sufficiently represented
during negotiations. Furthermore, buyers are often unaware
that the broker showing them properties does not represent
them. Even new agency disclosure laws do not ensure that
buyers are aware which party to the transaction the broker is
really representing.
traditional agency law, special legislation has been enacted to allow the practice. The
NAR has recommended and lobbied for such “designated agency” statutes, and state
Realtors associations have drafted model provisions. Thomas Early, Comments at
Competition Policy and the Real Estate Industry Conference, hosted by the
Department of Justice and Federal Trade Commission (Oct. 25, 2005), available at
http://www.usdoj.gov/atr/public/workshops/rewcom/213172.pdf. This system also
sometimes further contributes to agents setting higher standard commission rates and
refusing to deal with agents on the other side of the transaction who charge a lower
rate. White, supra note 1, at 16-17.
46
See Braswell & Poe, supra note 23, at 281-83.
47
Panacek et al., supra note 34, at 353.
48
CODE OF ETHICS AND STANDARDS OF PRACTICE OF THE NATIONAL
ASSOCIATION OF REALTORS, Standard of Practice 1-5 (2006) [hereinafter NAR CODE],
available at http://www.realtor.org/mempolweb.nsf/pages/2006code (“[Realtors] may
represent the seller/landlord and buyer/tenant in the same transaction only after full
disclosure to and with informed consent of both parties.”).
49
Hoak, supra note 39; see also Kenneth R. Harney, Agents Falling Short on
Disclosure, WASH. POST, Mar. 18, 2006, at F1 (stating that new NAR research shows
that only thirty percent of buyers in 2005 received disclosures). Some advocates argue
that in addition to being required to disclose the dual agency nature of the relationship,
real estate agents should have to disclose to buyers that exclusive buyer agency is an
option available to them. See, e.g., Early, supra note 46.
50
Hoak, supra note 39.
51
Id.
2008]
779
2. New Brokerage Models
Consumer demand and changing technology have
resulted in the development of new service models for real
estate brokerage.52 The growing dominance of the Internet in
society has increased public access to information and created
pressure for the broker’s role in the real estate transaction to
change.53 As a result, new brokers sometimes “unbundle”
brokerage services by allowing clients to pick and choose the
specific services traditionally included in full-service brokerage
that they want.54 Clients can then pay a lower commission rate
based on which services they use.55 This a la carte model caters
to consumers of varying sophistication levels who desire
different levels of service and do not necessarily require all of
the services of a traditional real estate broker.56 These brokers
might provide very limited services, such as simply listing their
clients’ property for sale on the MLS for a flat fee.57 Although a
seller using a flat-fee listing broker will probably still need to
offer the selling broker a commission to bring in a buyer, the
seller could still save almost fifty percent over what he or she
would need to pay under the traditional model.58
Another new type of broker is the exclusive buyer’s
agent. As a result of rising consumer awareness regarding the
problem of dual agency, these agents are becoming more
popular.59 More homebuying guides and other mainstream
media outlets are recommending that buyers consider using a
52
See, e.g., WOODALL & BROBECK, supra note 10, at 2, 4 (noting that, as
housing prices and commissions grew, consumers demanded different pricing options
and, as dual agency was “exposed,” consumers increasingly sought out exclusive buyer
agents); Hahn et al., supra note 1, at 97-101 (discussing how the internet has affected
and will continue to affect real estate brokerage).
53
Hahn et al., supra note 1, at 97-99. Traditionally, a major role of the broker
was to locate the property for a buyer—now that consumers can access many listings
online themselves, it is questionable whether this service is necessary. WOODALL &
BROBECK, supra note 10, at 5.
54
See, e.g., American Homeowners Grassroots Alliance, supra note 10.
55
Id.
56
WOODALL & BROBECK, supra note 10, at 5.
57
Consumers cannot post their property themselves because they are not
licensed real estate agents and cannot join a Realtors association; thus, they cannot
access the MLS. Brobeck Testimony, supra note 5, at 5.
58
59
WOODALL & BROBECK, supra note 10, at 7 (“Membership in the National
Association of Exclusive Buyer Agents tripled over the past decade rising from 221 in
1995 to over 700 in 2006.”).
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broker exclusive to their side of the transaction.60 These agents
market themselves as trustworthy alternatives to the
traditional real estate agent who genuinely work for their
clients’ best interests.61 Exclusive buyers’ agents do not accept
any listings, ensuring that they will avoid the inevitable
conflict of interest that arises when a buyer client wants to buy
the house of a selling client.62
A third new type of agent acts solely as a “lead
generator” for other agents.63 These lead generators assess the
needs of a given customer and match them with an appropriate
agency.64 The referred agencies then give part of their
commissions to the “lead generator.”65 The “lead generator”
then passes part of this commission on to the consumer as a
rebate.66 Thus, the consumer is ultimately paying less in
commission than under the traditional model.
These new brokerage models continue to develop and
grow in popularity, enhancing consumer choice. As a result,
consumers are able to pay less for brokerage services that are
better tailored to their needs.
B.
Competition in the Residential Real Estate Industry
The Consumer Federation of America recently called the
residential real estate industry “the last remaining
unregulated cartel functioning in America.”67 This statement is
just one small part of a resurgence of debate over the
anticompetitive conditions in the residential real estate
60
See, e.g., WILSON, supra note 39, at 76; David Devoss, Don’t Assume
Anything, and Nine Other Home-Buying Tips; Hire Pros But Learn Ins, Outs: Prune
Price, Payments and Problems by Choosing the Best Ways and Times to Buy,
INVESTOR’S BUS. DAILY, June 14, 2006, at A5; Top Things to Know, CNNMONEY, June
18, 2006 (“Look for an exclusive buyer agent, if possible, who will have your interests at
heart and can help you with strategies during the bidding process.”).
61
See, e.g., The National Association of Exclusive Buyer’s Agents Home Page,
http://www.naeba.org (last visited Oct. 11, 2007); Jane Becker, Home Team
AdvantEdge, Before You Start Your Home Search, Find Out What You Need to Know
About Real Estate Agency, http://www.hometeamadvantedge.com/homebuying.html
(last visited Oct. 22, 2007).
62
63
Hahn et al., supra note 1, at 98-99.
64
Id.
65
Id.
66
Id.
67
Group Decries Real Estate “Cartel,” L.A. TIMES, June 20, 2006, at C6.
2008]
781
industry.68 Discussion of the problem, however, is not a new
phenomenon. In fact, the last half century has seen much
similar debate, flush with both private and government
litigation challenging various anticompetitive practices in the
industry.69 Several features of the real estate market that have
troubled commentators remain today: broker commission rates
have remained steadily high over time;70 the traditional model
for brokerage remains dominant even in a climate of
alternative models for brokerage arguably more attractive to
consumers;71 and control of the MLS, an indispensable tool of
the trade, remains largely in the hands of one trade
association.72
Even as housing prices have changed over time and
technological advances have arguably made the broker’s job
easier, commission rates in the industry have remained
68
See id. The Antitrust Division of the Department of Justice held a large
conference on competition in the Real Estate Industry in October 2005, seeking input
from various real estate professionals and academics, as well as the public. See Public
Workshops, Antitrust Division, Competition Policy and the Real Estate Industry,
www.usdoj.gov/atr/public/workshops/reworkshop.htm; Press Release, Department of
Justice, Justice Department/Federal Trade Commission to Host Joint Workshop on
Competition Policy and the Real Estate Industry (Sept. 13, 2005), available at
http://www.usdoj.gov/atr/public/press_releases/2005/211074.pdf. The Summer 2006
edition of the Real Estate Law Journal was devoted to an exploration of the problem.
See, e.g., Hahn et al., supra note 1; White, supra note 1; John C. Weicher, The Price of
Residential Real Estate Brokerage Services: A Review of the Evidence, Such as It Is,
REAL EST. L.J., Summer 2006, at 119. Also, in 2006, three separate district courts
across the country heard cases that challenged the Realtors associations’ practice of
requiring membership in the NAR to access the MLS. See supra note 25.
69
See, e.g., Norman W. Hawker, Overview of AAI’s Real Estate Competition
Project: Highlights from the Existing Literature on Broker Competition, REAL EST. L.J.,
Summer 2006 at 69-71 (noting that “competition issues in this industry have been a
major concern for the last half century,” and providing a comprehensive review of
judicial decisions and government publications on the subject); see also Unites States v.
Nat’l Ass’n of Real Estate Bds., 339 U.S. 485, 488-89 (1950) (holding that the National
Association of Real Estate Boards violated federal antitrust law by creating a formal
schedule for commission rates); Wells Real Estate, Inc. v. Greater Lowell Bd. of
Realtors, 850 F.2d 803, 815 (1st Cir. 1988) (upholding the requirement that an agent
join the Realtors association in order to access the MLS based on a finding that a
substantial amount of commerce was not foreclosed as required by the Sherman Act);
United States v. Realty Multi-List, Inc., 629 F.2d 1351, 1389 (5th Cir. 1980)
(invalidating some MLS membership criteria as an unreasonable group boycott under
the Sherman Act); Marin County Bd. of Realtors v. Plasson, 549 P.2d 833 (Cal. 1976)
(invalidating an association’s membership requirement under state antitrust law).
70
71
See supra Part II.A.2
72
See supra notes 17-20 and accompanying text and discussion infra Part
II.C.1.
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remarkably steady at around five to six percent.73 Such stable
commission rates have led analysts to question whether there
is some kind of “informal collusion” keeping commission rates
at this level.74 In fact, the traditional model does give a direct
economic incentive to the listing and the selling broker to
cooperate in maintaining a high commission rate because they
will split the commission when the deal closes.75 Even worse,
the traditional model allows one broker to represent both sides
of the transaction.76 A dual agent clearly has an incentive to
maintain the high commission rate because she will retain the
entire fee.77 Alternative brokerage models, on the other hand,
offer consumers the opportunity to choose limited services for
discount rates.78
Some commentators, however, argue that the
dominance of the traditional model for brokerage suppresses
the growth of alternative brokerage models. These
commentators note that the “commonality of the structure [for
brokerage services] . . . and its persistence over time suggest
the possibility that alternative models have not had a fair
chance to compete.”79 Since the traditional brokerage method
allows little opportunity for the consumer to negotiate the
broker’s commission rate, alternative brokers have complained
that consumers do not even know that they can shop around for
different service packages and rates.80 Additionally,
discrimination against alternative brokers by traditionalist
brokers may contribute to the limited growth of these types of
brokers.81 Traditional brokers do not want the industry to be
infiltrated by brokers offering lower prices.82 Therefore,
73
WOODALL & BROBECK, supra note 10, at 2; White, supra note 1, at 12. This
commission rate is approximately 1.5% higher than that found in other developed
countries. American Homeowners Grassroots Alliance, supra note 10.
74
Hahn et al., supra note 1, at 92-93.
75
For this reason, commentators sometimes describe the traditional model as
one of “interdependence.” The system encourages cooperation and interdependence
between brokers, in order to maintain a uniform high commission rate. Braswell & Poe,
supra note 23, at 318.
76
77
Critics call this practice a “double dip.” The same effect can be achieved
through “in-house” transactions whereby two brokers in the same brokerage firm
represent the buyer and the seller. In this case, the entire commission profit accrues to
the one brokerage. Early, supra note 45.
78
79
80
See Braswell & Poe, supra note 23, at 315.
81
See Hahn et al., supra note 1, at 90; see also infra Part II.C.2.
82
See infra Part II.C.2.
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783
traditionalists have an economic incentive to deal only with
other traditionalists who work for the same standard
commission rate.83
Analysts speculate that a truly competitive residential
real estate industry would feature lower commission rates and
“a greater range and variety of services [offered] at varying
prices.”84 Therefore, expansion and growth of the new
alternative models for real estate brokerage should be
encouraged.
C.
The NAR Actively Stifles the Development of Alternative
Models of Real Estate Brokerage
Rather than encouraging development of new brokerage
models, the NAR and its local affiliates rigorously support the
traditional model for real estate brokerage.85 The NAR
aggressively lobbies for legislation that ensures the dominance
of the traditional model for brokerage.86 In fact, the general
counsel of the NAR has made it clear that this is the NAR’s
agenda, stating recently that “Realtor associations have the
right to lobby for legislative and regulatory action that they
support—even if the effect of such action would be anticompetitive.”87
The NAR receives a vast amount of funding to pursue
its lobbying activities through annual membership dues
collected from its 1.3 million members. Membership dues
generate around $100 million annually.88 In its 2005 annual
report, the NAR stated that it used fifteen percent of
83
Id.
White, supra note 1, at 13.
85
The NAR and its local affiliates actively lobby for local legislation aimed at
maintaining the traditional system for residential real estate. See, e.g., WILSON, supra
note 39, at 191; American Homeowners Grassroots Alliance, supra note 10. Such
legislation includes “minimum service laws,” requiring all real estate brokers to
provide a certain level of service to their clients—aimed at limiting the level of service
provided by discount brokers. Brobeck Testimony, supra note 5, at 4. Such laws might
require, for example, “all service providers to maintain physical offices or accompany
prospective buyers on home visits.” Id.
86
See Justice, supra note 18 (“The Realtors association is . . . one of the most
powerful lobbies in Washington, spending nearly $94 million annually.”); see also supra
note 45 and accompanying text, discussing “designated agency” laws.
87
Id.
88
National Association of Realtors, Internal Revenue Service Form I-990
Filing, at 1, available at www.guidestar.org (Line 3, Membership Dues and
Assessments lists $94,651,631 in membership fees for the tax year 2004).
84
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membership dues for “public policy.”89 Therefore, by forcing all
real estate agents wishing to access the MLS to pay
membership dues to the NAR, all real estate agents are in
effect contributing money to be used in part to lobby against
competitive changes in the industry. This is especially
problematic for alternative brokers, who would probably prefer
not to contribute to a fund that will be used in part to advocate
for policies adverse to their interests.
The NAR and traditional brokers, however, have a great
incentive to continue to advocate for adherence to the status
quo in brokerage because any break in uniformity is likely to
result in lower commission rates.90 Additionally, the NAR
clearly has strong incentives to require membership in the
NAR in order for a broker to obtain MLS access—millions of
dollars to use in forwarding its traditionalist agenda and the
power to control who uses the MLS and on what terms.91
1. NAR Power over MLS Terms of Use Stifles Growth
of Alternative Brokerage Models
By requiring membership in a Realtors association in
order to access the MLS, the NAR controls the MLS’s terms of
use.92 Moreover, when an agent joins the NAR, they must agree
to abide by the NAR’s Code of Ethics. These rules and
standards are often criticized for stifling the development and
expansion of alternative business models.93 For example, the
Code-mandated arbitration process for settling commission
disputes is often criticized.94 The panels that conduct the
arbitration hearings largely consist of traditionalist NAR
member brokers who themselves compete with the brokers
involved in the disputes.95 Therefore, these arbitrators have
89
NATIONAL ASSOCIATION OF REALTORS, 2005 ANNUAL REPORT 28 (2006),
available at http://www.realtor.org/realtororg.nsf/pages/2005_annual_report.
90
See Hahn et al., supra note 1, at 101.
91
Brobeck Testimony, supra note 5, at 7.
92
One commentator describes the potential problem with this arrangement
in this way: “[F]or most MLSs, the terms are coordinated through NAR’s national
policy, and they can design it to keep membership limited to firms who will conduct
their business in a particular manner.” Hahn et al., supra note 1, at 96. The NAR
argues that membership in the association is necessary in order to regulate the MLS,
and ensure that brokers are interacting ethically. One counterargument is that this is
the duty of state licensing boards and real estate commissions—not a private trade
association. Braswell & Poe, supra note 23, at 307-08.
93
See, e.g., Braswell & Poe, supra note 23, at 305-06.
94
NAR CODE, supra note 48, art. 17.
95
Braswell & Poe, supra note 23, at 305-06.
2008]
785
little incentive to find in favor of a non-traditionalist broker
whose practice is threatening to break up the status quo in real
estate brokerage, potentially reducing commission rates.96
Additionally, in arbitration, the NAR uses the doctrine
of “procuring cause” to settle commission disputes.97 Under
procuring cause, a commission belongs to the broker whose
“unbroken efforts . . . were responsible for the buyer making the
decision to consummate the sale on terms which the seller
found acceptable.”98 Use of this doctrine can jeopardize an
alternative broker’s right to his or her commission.99 For
example, buyers often begin their home search on their own
today, perhaps searching for properties online. However, NAR
policy ensures that pared-down online listings, unlike those in
the Realtor-accessible MLS, do not contain enough information
for a buyer to locate a property and contact the seller directly.100
When an interested buyer calls the number on the listing, the
buyer speaks with the listing broker, who will give the buyer
more information or possibly show the property.101 At this point,
if the buyer is interested in the property and contacts a buyersonly broker to help negotiate the transaction, the buyers-only
broker might be locked out of the commission since, technically,
the listing broker is the agent who “originated the series of
events leading to the closing.”102 This doctrine, perpetuated by
96
Id. (describing this condition as “add[ing] significantly to the general
pressures of uniformity” (quoting FEDERAL TRADE COMMISSION STAFF REPORT, THE
RESIDENTIAL REAL ESTATE BROKERAGE INDUSTRY 126 (1983)).
97
NAR CODE, supra note 48, art. 17, Standard of Practice 17-4.
98
National Association of Realtors, Procuring Cause Factors, available at
http://www.realtor.org (search “procause.doc” and download Word file) (last visited
Nov. 27, 2007).
99
See Early, supra note 45, at *4.
100
WOODALL & BROBECK, supra note 10, at 10; Brobeck Testimony, supra
note 5, at 5.
101
See WILSON, supra note 39, at 227-28 (warning buyers who want to work
with an exclusive buyers agent that such agents “do not make specific appointments to
see houses; do not visit listing agencies; and do not let listing agents escort you to
houses; visit only during declared ‘open house’ hours when the homes are specifically
open for general viewing”).
102
See National Association of Realtors, Procuring Cause—An Introduction,
available at www.realtor.org (search “pcai.doc” and download Word file) (last visited
Nov. 27, 2007); see also WILSON, supra note 39, at 227 (“[Y]our visit to a home which
eventually emerges as a purchase possibility could become the basis for a listing
agent’s claim to be the procuring cause of your interest and, therefore, entitled to the
buyerside portion of the commission.”).
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the NAR, clearly encourages maintaining the traditional model
of real estate brokerage.103
NAR policy is also discriminatory to online-based
brokers. The NAR enacted rules that allow NAR members to
withhold their listings from being displayed on the site of an
online broker if they so choose.104 Thus, the NAR’s control over
access to and terms of use of the MLS has discriminatory
effects on alternative real estate brokers and may stifle the
growth of these new forms of brokerage.
2. Realtors Associations Discriminate Against
Alternative Brokers
In addition to the discriminatory effects caused by
Realtor control of the MLS, Realtors associations do not
generally foster an environment that supports or encourages
the development of new models for real estate brokerage. In its
code of ethics, the NAR states, “[Realtors] urge exclusive
representation of clients; do not attempt to gain any unfair
advantage over their competitors; and they refrain from
making unsolicited comments about other practitioners.”105
However, in practice, Realtors do not seem to adhere to this
policy. Discount brokers frequently complain that they are
harassed or treated otherwise unfairly by Realtors.106 Buyersonly brokers report similar harassment by traditionalist NAR
members.107
One common complaint of alternative brokers is that
traditional agents practice “steering.”108 Steering occurs when
103
Efforts are being made by exclusive buyer agents to educate the consumer
to this fact so that they know they need to start with an exclusive buyer agent from the
beginning of their home search process. See, e.g., WILSON, supra note 39, at 227-28;
Becker, supra note 61.
104
The Department of Justice (“DOJ”) filed suit in September 2005 against
the NAR over their rules governing website listings. The NAR allows NAR members to
withhold their listings from being displayed on the websites of on-line brokers. The
DOJ claims that this is a restraint on trade aimed at restraining competition from
discount brokers. This case is currently in the discovery phase. DOJ Sues NAR, supra
note 14, at 2-3; see also Hahn et al., supra note 1, at 88.
105
NAR Code, supra note 48, Preamble.
106
Braswell & Poe, supra note 23, at 315. Brokers have been largely
unsuccessful in suits alleging such harassment by mainstream brokers, primarily
because courts have found that the actions were perpetuated by a few brokers
individually, not by the NAR or local affiliates as a whole. See, e.g., Market Force Inc.
v. Wauwatosa Realty Co., 906 F.2d 1167, 1174 (7th Cir. 1990).
107
108
White, supra note 1, at 16-17.
2008]
787
traditional listing brokers make it difficult or impossible for
non-traditional or “discount” brokers to bring potential buyers
to the property.109 Another complaint is that traditional selling
brokers sometimes refuse to show a buyer property listed by a
broker who works for less than a six percent commission.110
Additionally, some traditional brokers create an environment
unfriendly to alternative brokers by making disparaging
remarks about non-traditional brokers in the media, through
advertising to homebuyers and sellers and at Realtors workshops.111 During the 2003 NAR convention, for example,
discount brokers were referred to as “waging war on real estate
commissions.”112 At this conference, a video was screened that
morphed the face of one well-known discount broker into that
of Osama Bin Laden.113
Thus, despite the NAR’s professed commitment to the
equal treatment of brokers, reports of harassment and unequal
treatment from alternative brokers paint a different picture.
D.
Alternative Real Estate Associations in Competition
with the NAR
Alternative real estate professional membership
associations have developed to cater to the expanding pool of
non-traditional brokers. One of the largest alternative
associations is the National Association of Exclusive Buyers
Agents (“NAEBA”), whose members represent only the buyer in
a transaction.114 The National Association of Real Estate
109
See id.
One flat-fee listing agent complained that a traditional agent refused to
show his homes because of his lower commission rate, stating that the traditional
broker told him, “Sorry, I don’t give discount services, so I don’t discount my
commission. But if the seller is willing to do 3 percent I’ll show the property. That is
pretty standard for real estate professionals.” WOODALL & BROBECK, supra note 11, at
11-12.
111
One buyers-only broker (also a member of the NAR) alleges that while
attending a Task Force of Buyer Agency Liability, the former NAR president, Sharon
Millett “was openly hostile and rude every time [she] tried to add [her] view to the
discussion.” E-mail from Janet Hagan, The Buyer’s Voice in Real Estate, to the
Department of Justice (Nov. 10, 2005) [hereinafter Hagan e-mail], available at
http://www.usdoj.gov/atr/public/workshops/rewcom/213325.pdf. Similarly, a wellrespected member of the NAR Professional Standards Committee who spoke at the
event called the NAEBA “radical insurgents.” Id.
112
WOODALL & BROBECK, supra note 10, at 15 (quoting Jessica Swesy, Fear
Still Rules Real Estate Industry, INMAN NEWS, Feb. 24, 2006).
113
Id.
114
See National Association of Exclusive Buyers Agents, http://www.naeba.org
(last visited Jan. 27, 2007). There are also many local exclusive buyers agent
110
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Consultants is an association representing flat-fee brokers.115 A
new trade association, the American Real Estate Broker
Alliance (“AREBA”) was formed in 2006 to cater to flat-fee and
discount brokers.116 Although alternative agents are not
excluded from joining the NAR (the NAR explicitly states that
it “encourages innovation and competition in real estate
brokerage, including different business models like fee-forservice”),117 they often report being harassed and poorly treated
by traditional Realtors.118 Therefore, it is no surprise that these
agents might prefer not to join the NAR. Additionally, it is
likely that more agents would join an alternative association if
they were not already “forced” to pay two or three membership
fees (that is, the NAR and a local and state NAR affiliate) in
order to access the MLS.119
Real estate agents should not be forced to join an
association they do not wish to join, especially if they object to
the organization’s practices on ethical grounds. In an age of
consumer distrust of real estate agents120 and widespread
awareness of issues regarding representation,121 it might be
competitively beneficial for real estate agents to not identify
themselves as traditional Realtors. Agents marketing
themselves as an exclusive buyers agents separate from the
NAR, for example, might attract a different consumer niche.
associations. See, e.g., Colorado Exclusive Buyer Agents Association, http://
www.homebuyerscolorado.org (last visited Jan. 27, 2007); New Hampshire Association
of Exclusive Buyer Agents, http://www.nhaeba.org (last visited Jan. 27, 2007).
115
116
Id.
117
Real Estate Commission Debate Heats Up, REALTOR MAG. ONLINE, Nov. 7,
2006, http://www.realtor.org/rmodaily.nsf/pages/News2006110707?OpenDocument.
118
See, e.g., Hagan e-mail, supra note 111 (claiming that she has been paying
dues to the NAR since 1988, but her name is not listed on the NAR website); see also
supra Part II.C.
119
For example, in Thompson, there was evidence showing that “the expense
of dual membership in trade groups can be prohibitive for some brokers, and . . .
prospective . . . members [of Empire, an alternative real estate professional association]
did not join Empire . . . because of the prohibitive cost. Thompson v. Metro. Multi-List,
Inc., 934 F.2d 1566, 1578 (11th Cir. 1991); see also discussion infra Part II.A.; BARRY,
supra note 17, at 26 (showing agent “non-join” rates in areas where joining a Realtors
association not required to access the MLS).
120
Real estate agent is ranked fairly low on a scale of “trustworthy”
professions in Gallup polls. In a 2000 Gallup poll, only seventeen percent of
respondents ranked real estate agents as “high” or “very high” on a standard of honesty
and ethics. Blanche Evans, How Do You Interpret the Gallup Poll’s Ranking of Real
Estate Agents?, REALTY TIMES, Nov. 30, 2000, http://realtytimes.com/rtapages/
20001130_ranking.htm.
121
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Thus, as new brokerage models continue to grow, it is
likely that more broker-specific associations will develop. So
long as the NAR is allowed to require membership in a
Realtors association in order to access the MLS, however, the
practice will constitute a barrier to entry for competitors.
III.
INTRODUCTION TO ANTITRUST LAWS APPLICABLE TO THE
NAR’S CONTROL OF THE MULTIPLE LISTING SERVICE
The NAR’s control of the MLS and the resulting
anticompetitive consequences might fall within the scope of
antitrust laws. Antitrust laws are generally concerned with
fostering competition in the marketplace. The theory is that
unrestricted buyers and sellers in a free market will result in
the most efficient distribution of resources.122 The primary
economic purpose of antitrust laws is to “maximize consumer
economic welfare”123 by creating an efficient market resulting in
the “lowest prices, the highest quality, and greatest material
progress . . . .”124 A secondary beneficiary of antitrust law is the
competitor himself, who is assured a fair chance at competing
in the marketplace.125 Section 1 of the Sherman Act, one piece
of antitrust legislation, states “Every contract, combination in
the form of trust or otherwise, or conspiracy, in restraint of
trade or commerce among the several States . . . is declared to
be illegal.”126
Courts have invalidated several anticompetitive
business practices under Section 1 of the Sherman Act, but
only unreasonable restraints of trade are prohibited under the
Act.127 One practice found to violate Section 1 is “tying
arrangements.”128 A tying arrangement occurs when a seller
will “sell one product . . . only on the condition that the buyer
122
See, e.g., N. Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958); Arthur I.
Cantor, Tying, Exclusive Dealing, and Franchising Issues, in 47TH ANNUAL ANTITRUST
LAW INSTITUTE, at 399, 405 (P.L.I. Corporate Law and Practice, Course Handbook
Series, 2006).
123
1 PHILLIP AREEDA & DONALD F. TURNER, ANTITRUST LAW ¶ 103 (1st ed.
1978).
124
N. Pac. Ry., 356 U.S. at 4.
125
Id.
126
15 U.S.C. § 1 (2000).
127
Standard Oil Co. v. United States, 221 U.S. 1, 88 (1911).
128
Cantor, supra note 122, at 405-06. One commentator describes tying law as
“among the most controversial of antitrust principles.” Stephen v. Bomse, Tying 1992:
Waiting for Kodak to Develop, in 33RD ANNUAL ANTITRUST LAW INSTITUTE, at 869, 872,
P.L.I. Corporate Law and Practice, Course Handbook Series No. 776, 1992).
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also purchases a different (or tied) product, or at least agrees
that he will not purchase that product from any other
supplier.”129 The desired product is called the “tying” product,
and the secondary product is the “tied” product. Tying
arrangements are subject to inquiry under the Sherman Act
when the seller is either “an actual monopolist of the tying
product or an actual or prospective monopolist of the tied
product.”130 Tying arrangements restrain trade not only by
affecting competition between existing competitors, but also by
barring entry to new firms in the market.131 This effect is
achieved because the monopolist seller of the tying product
effectively extends their monopoly to the tied product.132
A second practice scrutinized under Section 1 of the
Sherman Act is a “group boycott,” or “concerted refusal to
deal.”133 A group boycott occurs when a group of competitors
collectively agree not to deal with a competitor or group of
competitors who are not a member of the group.134 As part of
the boycott, the nonmember might be denied access to a
“valuable business service” that it needs in order to be
competitively effective.135
Traditionally, both tying arrangements and group
boycotts were frequently invalidated, and courts often found
each of them illegal per se.136 The strict per se rule resulted
from the common early belief that both tying arrangements
and concerted refusals to deal had a “pernicious effect on
competition” and lacked any “redeeming virtue.”137 Since these
129
N. Pac. Ry., 356 U.S. at 5-6. The most recent Supreme Court tying cases
continue to use this definition of tying. See Eastman Kodak Co. v. Image Technical
Servs., 504 U.S. 451, 461 (1992).
130
PHILLIP E. AREEDA & HERBERT HOVENKAMP, FUNDAMENTALS OF
ANTITRUST LAW § 17.01e (3d ed. Supp. 2004).
131
Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 14 (1984).
132
Id.
133
See, e.g., Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 211-12
(1959).
134
Id. at 212.
135
Silver v. N.Y. Stock Exch., 373 U.S. 341, 347 (1963).
136
See, e.g., N. Pac. Ry. Co. v. United States, 356 U.S. 1, 5 (1958) (listing
group boycotts and tying arrangements as among the practices “deemed to be unlawful
in and of themselves”).
137
Id. In another case, the Court noted that “tying arrangements generally
serve no legitimate business purpose that cannot be achieved in some less restrictive
way.” Fortner Enters., Inc. v. U.S. Steel Corp. (Fortner I), 394 U.S. 495, 503 (1969); see
also U.S. Steel Corp. v. Fortner Enters., Inc. (Fortner II), 429 U.S. 610, 617 (1977)
(noting that permitting tying arrangements was like condoning “the existence of power
that a free market [will] not tolerate”). Tying arrangements would be invalidated so
long as the seller had enough market power in the tying product market to restrain
2008]
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arrangements were considered facially unreasonable, the Court
applied the per se rule to avoid an “incredibly complicated and
prolonged economic investigation . . . so often wholly fruitless
when undertaken.”138
Critics have since argued that the per se rule sweeps too
broadly and condemns practices that do not actually have
negative competitive consequences.139 Critics claimed that the
rule was based too much on assumptions rather than actual
market analysis.140 These commentators shifted their view of
tying arrangements and refusals to deal, and they now urge
that there can be significant pro-competitive effects of such
practices.141 As a result of changing attitudes, courts have
begun to import more economic analysis into determinations
of whether the per se rule should apply, focusing more on
the actual market conditions and less on assumptions.142
Application of the less stringent “rule of reason” analysis is
becoming the new standard for analysis of both tying
arrangements and group boycotts.143 The rule of reason
requires courts to invalidate “any restraint whose anticompetitive effects outweigh its contributions to competition.”144
There are two steps to the rule of reason analysis: courts must
(1) determine that the challenged firm possesses sufficient
trade in the market for the tied product. Fortner I, 394 U.S. at 499. Additionally, the
tying arrangement must have had an effect on more than an “insubstantial amount of
interstate commerce.” Id. Courts have traditionally inferred market power if the seller
controlled a large share of the market. Eastman Kodak Co. v. Image Technical Servs.,
Inc., 504 U.S. 451, 464 (1992). These courts also held the amount of interstate
commerce affected to be “not insubstantial” if it was more than “de minimis.” Fortner I,
394 U.S. at 501.
138
N. Pac. Ry., 356 U.S. at 5.
139
The Department of Justice stance on tying arrangements is now that they
“generally do not have a significant anticompetitive potential.” Bomse, supra note 128,
at 875 (quoting DEPARTMENT OF JUSTICE, VERTICAL RESTRAINTS GUIDELINES ¶ 5.1
(1985), but noting that the Guidelines were rescinded in 1993). Areeda states that most
litigated tie-ins do not actually affect a substantial share of the tied market, yet most
courts nevertheless condemn them. He argues that this is the area of tying law “most
in need of reform.” 9 PHILLIP E. AREEDA, ANTITRUST LAW ¶ 1730 (1991). In United
States v. Realty Multi-List, Inc., the Fifth Circuit refused to invalidate a group boycott
using the per se rule, acknowledging the many possible pro-competitive effects of the
arrangement. 629 F.2d 1351, 1367-68 (5th Cir. 1980).
140
See e.g. AREEDA, supra note 139.
141
Id.
142
See Ill. Tool Works, Inc. v. Indep. Ink, Inc., 547 U.S. 28, 35 (2006) (“Over
the years . . . this Court’s strong disapproval of tying arrangements has substantially
diminished. Rather than relying on assumptions, in its more recent opinions the Court
has required a showing of market power in the tying product.”).
143
See id.
144
Realty Multi-List, 629 F.2d at 1370.
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market power to justify analysis of its practice and (2) consider
whether there are pro-competitive justifications for the practice
that outweigh the possible anticompetitive effects.145
IV.
REQUIRING A REAL ESTATE AGENT TO JOIN A REALTORS
ASSOCIATION IN ORDER TO OBTAIN ACCESS TO THE MLS
IS AN ILLEGAL TYING ARRANGEMENT146
A.
The Applicable Standard for Tying Claims
Although the United States Supreme Court has not
entirely rejected the per se rule for tying arrangements,147 the
extent of economic analysis now required just to decide
whether the per se rule applies greatly limits its reach.148 An
145
See, e.g., Marin County Bd. of Realtors v. Palsson, 549 P.2d 833, 842-44
(Cal. 1976) (“[W]e hesitate before mechanically applying a per se rule. Adopting such a
rule would establish the activities of the board to be illegal without any regard to their
economic effects or possible justification.”).
146
It should be noted that it is important that the plaintiff challenging the
Realtors association practice have standing to bring the claim. In one unsuccessful case
in 2006, a plaintiff’s claim was dismissed on the grounds that she failed to show that
she suffered an antitrust injury. Buyer’s Corner Realty, Inc. v. N. Ky. Ass’n of Realtors,
410 F. Supp. 2d 574, 580 (E.D. Ky. 2006), aff’d, 198 F. App’x 485 (6th Cir. 2007). In this
case, the plaintiff broker, a member of both the NAR and the NAEBA, alleged that the
only reason she joined the NAR was to access the MLS. Id. at 577. Because the plaintiff
had in fact joined the NAEBA despite the NAR membership requirement, she failed to
show how she was injured by the practice. Id. at 580.
In contrast, in Thompson v. Metropolitan Multi-List, one of the plaintiffs
was an alternative real estate professional association alleging a loss in membership
due to the tying arrangement, and the other plaintiff was an agent who had applied to
for MLS access but was denied because he refused to join the Realtors association.
Thompson v. Metro. Multi-List, Inc. 934 F.2d 1566, 1570 (11th Cir. 1991). Both
plaintiffs were deemed to have standing. Id. at 1571, 1572. With regards to the
individual broker, the court concluded that “[a]s long as a plaintiff made a reasonable
attempt to enter the market . . . the plaintiff has standing to contest antitrust
violations which create barriers to that market.” Id. at 1572.
147
In Jefferson Parish, the court had the opportunity once again to reject the
per se rule, but the majority chose to sustain it, stating that “[i]t is far too late in the
history of our antitrust jurisprudence to question the proposition that certain tying
arrangements pose an unacceptable risk of stifling competition and therefore are
unreasonable ‘per se.’” Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 9 (1984).
148
Ironically, one of the very purposes of the original per se rule was to “avoid
a burdensome inquiry into actual market conditions in situations where the likelihood
of anticompetitive conduct is so great as to render unjustified the costs of determining
whether the particular case at bar involves anticompetitive behavior.” Id. at 16; see
also Cantor, supra note 122, at 410-11; Smith Machinery Co. v. Hesston Corp., 1987-1
Trade Cas. ¶ 67,563 n.5 (D.N.M. 1987), aff’d, 878 F.2d 1290 (10th Cir. 1989) (“The
means for deciding which tying agreements are ‘plainly anticompetitive’ enough to
justify per se treatment has become so complex and difficult that the objectives of the
per se rule are no longer being realized through its use.”); Ill. Tool Works Inc. v. Indep.
Ink, Inc., 547 U.S. 28, 35 (2006) (“Over the years . . . this Court’s strong disapproval of
tying arrangements has substantially diminished. Rather than relying on assumptions,
in its more recent opinions the Court has required a showing of market power in the
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793
essential characteristic of modern-day tying analysis is
“leverage.”149 To qualify as leverage, a seller must use its power
in the market for the tying product to essentially force the
consumer to purchase a tied product that they “either did not
want at all, or might have preferred to purchase elsewhere on
different terms.”150 The per se rule will only be applied when
the seller’s market power in the tying product market is
substantial enough such that forcing is probable.151 Courts
conduct a fact-intensive analysis of the circumstances in each
case.152 Some factors courts consider include whether the seller
possesses a predominant share of the market for the tying
product,153 whether the tying product is so unique that
competitors are unable to offer it,154 and the cross-elasticity of
demand for the tying product.155
Additionally, the per se rule requires that the
arrangement results in the substantial foreclosure of sales in
the market for the tied product.156 An amount will be considered
substantial when it is more than de minimis.157 The relevant
figure is the total amount of sales tied by the arrangement
being challenged, not just the amount attributable to the
plaintiff challenging the practice.158 At least one circuit court
has found that an amount of just over $10,000 was more than
tying product.”). Illinois Tool Works ended the practice of automatic presumption of
market power in cases involving a patented product. It did not however, reject the per
se rule completely, and is the most recent Supreme Court consideration of the issue. Id.
at 42, 43.
149
Jefferson Parish, 466 U.S. at 12.
150
Id. It should be noted that Illinois Tool Works is sometimes cited as
abrogating Jefferson Parish. However, the case only reversed Jefferson Parish on one
point of law, holding that the existence of a patent does not automatically implicate the
per se rule for tying.
151
Id. at 16.
152
See Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 46667 (1992) (“This Court has preferred to resolve antitrust claims on a case-by-case basis,
focusing on the ‘particular facts disclosed by the record.’”).
153
In Jefferson Parish, a thirty percent share of the market for the tying
product was not enough to be considered substantial in the tying context. Jefferson
Parish, 466 U.S. at 26. (“Seventy per cent of the patients residing in Jefferson Parish
enter hospitals other than East Jefferson. Thus East Jefferson’s ‘dominance’ over
persons residing in Jefferson Parish is far from overwhelming.”).
154
Id. at 17.
155
Eastman Kodak, 504 U.S. at 469 (defining cross-elasticity of demand as
“the extent to which consumers will change their consumption of one product in
response to a price change in another”).
156
157
Fortner I, 394 U.S. at 501.
158
Id. at 502.
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de minimis.159 This requirement is meant to ensure that there
is an actual possibility of anticompetitive effects of the tying
arrangement.160
Courts have consistently further limited the application
of the per se rule. For example, courts have held that if the
buyer would not have purchased the tied product from any
seller if he hadn’t bought it as a result of the tying
arrangement, the per se rule does not apply because no
competitors are being harmed by the arrangement.161
Additionally, some courts have held that if there is no actual or
potential competitor in the market for a tied product, it cannot
be shown that a substantial amount of commerce is foreclosed
because the arrangement is not foreclosing the sales of any
competitors.162
Therefore, the elements required to invalidate an
arrangement under the per se rule are163 (1) there are two
separate and distinct products, and sale of the two products is
tied;164 (2) the seller has sufficient market power in the market
for the tying product such that they can force the buyer to
purchase the tied product and restrain trade in the market for
the tied product;165 and (3) a substantial amount of interstate
commerce is foreclosed in the tied product market.166
Additionally, some courts require that the seller must have an
economic interest in the sale of the tied product or service,
although the Supreme Court has not adopted this
requirement.167
If an arrangement does not meet the requirements for
per se invalidity, it can still be found illegal under a rule of
159
E.g. Tic-X-Press, Inc. v. Omni Promotions Co., 815 F.2d 1407, 1419 (11th
Cir. 1987).
160
161
162
See id.
See, e.g., Coniglio v. Highwood Servs., Inc., 495 F.2d 1286, 1291-92 (2d Cir.
1974).
163
There is no recent Supreme Court case neatly listing the elements of a
tying claim, so these elements are pieced together from the most recent cases. Eastman
Kodak, 504 U.S. at 462, 464 (there must be two separate products, and there must be
“appreciable economic power in the tying market”); Jefferson Parish, 466 U.S. at 16 (a
substantial volume of commerce must be foreclosed).
164
Package pricing, in which two items are sold together at a discount but are
also available separately for a reasonable price, is not necessarily an illegal tying
arrangement. Jefferson Parish, 466 U.S. at 24-25.
165
166
167
See, e.g., Reifert v. S. Cent. Wis. MLS Corp., 450 F.3d. 312, 316 (7th Cir.
2006).
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reason analysis.168 For tying arrangements, the analysis focuses
on the effects the arrangement has in the market for the tied
product rather than the market for the tying product, as for
the per se rule analysis.169 This is a less rigorous standard
than the per se rule, and it is unlikely that a practice upheld
under the per se rule will violate the easier-to-satisfy rule of
reason test.170
B.
A Tying Analysis of the NAR’s Membership
Requirements
The NAR’s practice of conditioning access to the MLS on
membership in a Realtors-affiliated association satisfies even
the modern per se rule’s more stringent requirements for
invalidating a tying arrangement.171 First, the tying product
(access to the MLS) is a product distinct and separate from the
tied product (the Realtors association membership), and the
two products are in fact tied together.172 In determining
whether two products are separate and distinct, courts consider
not the functional differences between the two products, but
the nature of the demand for them.173 The two products must
constitute separate product markets distinguishable to the
consumer such that “[a]t least some consumers would purchase
168
Cantor, supra note 122, at 408.
Id.; see also Jefferson Parish, 466 U.S. at 29 (finding that the per se rule
did not invalidate the challenged practice and applying the rule of reason standard by
inquiring into “the actual effect of the exclusive contract on competition”).
170
Cantor, supra note 122, at 409.
171
Although three separate courts recently failed to find that the practice is
an antitrust violation, all three cases had very similar facts. A slight variation in
circumstances could lead to a different outcome, as Realtors have acknowledged. See,
e.g., Brett M. Woodburn, The MLS Membership Rule—Antitrust or Not? Wisconsin and
Kentucky Say No!, PA. ASS’N OF REALTORS, Feb. 2006, http://www.parealtor.org/
content/TheMLSMembershipRule.asp. The Supreme Court has noted that “formalistic
distinctions . . . are generally disfavored in antitrust law” and that the Court “has
preferred to decide antitrust claims on a case-by-case basis, focusing on the ‘particular
facts disclosed by the record.’” Eastman Kodak Co. v. Image Technical Servs., Inc., 504
U.S. 451, 466-67 (1992) (quoting Maple Flooring Mfrs. Ass’n. v United States, 268 U.S.
563, 579 (1925)).
172
“[P]roducts are not tied unless the supplier refuses to accommodate those
who prefer one without the other.” AREEDA & HOVENKAMP, supra note 130, § 17.01i.
Here, the NAR has refused to accommodate real estate agents who would prefer to
access the MLS without joining the Realtors Association.
173
Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 19 (1984) (finding
that there is a sufficient demand for anesthesiological services separate from hospital
services such that they constitute two separate markets).
169
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[one without the other].”174 Factors considered include whether
the two products could be sold separately if the seller did not
insist on selling them as a package, whether the two products
are billed for separately, and whether other sellers in fact do
sell the two products separately.175
Several courts have previously determined that access
to the MLS and a Realtors association membership are two
separate and distinct products.176 For example, in Thompson v.
Metropolitan Multi-List, Inc., the Eleventh Circuit noted that
the bill for Realtors association membership dues is separate
from the bill to purchase MLS access, that brokers are
permitted to join the Realtors association without being
required to access the MLS, and that there are indeed other
real estate professional associations in existence that do not
offer MLS access.177
Realtors associations have argued that there are not two
separate markets for MLS access and real estate agent
association memberships.178 They argue that MLS services are
useless without an association membership, so the two must be
considered one product.179 Indeed, some courts have expressed
doubt regarding the existence of two products.180 In Wells Real
Estate, for example, the court stated that real estate boards are
not really “‘sellers’ in the usual sense of the term.”181 The court
174
Eastman Kodak, 504 U.S. at 463 (“At least some consumers would
purchase service without parts, because some service does not require parts, and some
consumers, those who self-service for example, would purchase parts without service.”).
175
See Jefferson Parish, 466 U.S. at 22-23 (finding that anesthesiological
services are a separate and distinct product from hospital services because they could
be provided separately, are billed separately, and are in fact sold separately by other
hospitals).
176
See Reifert v. S. Cent. Wis. MLS Corp., 450 F.3d 312, 317 (7th Cir. 2006)
(finding, without discussion, that there was “no question” that the plaintiff
demonstrated the existence of two separate products); Thompson v. Metro. Multi-List,
Inc., 934 F.2d 1566, 1575 (11th Cir. 1991); see also People v. Nat’l Ass’n of Realtors, 120
Cal. App. 3d 459, 471, 479 (Ct. App. 1981) (finding that MLS access and Association
memberships were separate and distinct products and remanding for a determination
on the existence of an illegal tying arrangement, but also invalidating the practice of
conditioning MLS access on agreement to an exclusive-right-to-sell listing).
177
Thompson, 934 F.2d at 1576 (both parties agreed that a broker was not
permitted to use the multilisting service without joining the Realtors association).
178
See, e.g., id. at 1575.
179
Id.
180
See Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803,
815 (1st Cir. 1988) (“We are unaware of any federal case that has characterized a
multiple listing service as a tying arrangement.”). But c.f. Thompson, 934 F.2d at 157576 (finding that MLS access and real estate association memberships were in fact two
separate products).
181
Wells Real Estate, 850 F.2d at 815.
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reasoned that MLS access was just an advantage gained by
becoming an association member, not a separate product.182
However, given the importance of the MLS to agents competing
in the market for residential real estate,183 MLS access can
hardly be dismissed as just one of the many benefits gained by
becoming an association member.
Additionally, since the NAR and its local affiliates still
largely perpetuate the traditional model of real estate
brokerage more brokers are likely to prefer to join associations
that reflect their own professional ethics as newer models for
real estate brokerage develop.184 Non-traditional brokers who
need access to the MLS in order to compete effectively, but who
disagree with the ethics and practices of the NAR, might very
well wish to purchase access to the MLS without purchasing a
Realtors association membership.185 Since “at least some”
consumers are likely to purchase one of the products without
purchasing the other, the two should be considered separate
and distinct products for the purpose of tying law.
Second, the NAR and its local affiliates possess
substantial power in the market for MLS access, and it is
probable that this power is strong enough to force buyers to
purchase Association memberships. Market power exists when
a seller can raise prices without incurring a loss in sales and
enjoys some protection against entry by competitors into the
market.186 Other factors used to determine whether the seller
has substantial market power include (1) whether the tying
product is so unique that competitors are unable to offer it187 or
(2) whether the seller possesses a predominant share of the
market for the tying product.188 The market power Realtors
182
Id.
See notes 11-15 and accompanying text.
184
185
This assertion is evidenced directly by the fact that such real estate
brokers have sued the NAR because they wish to obtain access to the MLS without
joining an association they disagree with ethically. See, e.g., Buyer’s Corner Realty, Inc.
v. N. Ky. Ass’n of Realtors, 410 F. Supp. 2d 574 (E.D. Ky. 2006), aff’d, 198 F. App’x 485
(6th Cir. 2007). In this case, the plaintiff was an exclusive buyers agent and member of
the National Association of Exclusive Buyer Agents. She believed the NAR policy
allowing dual agency is unethical, and she only joined the NAR to gain access to the
MLS. The case was dismissed because the court determined that the plaintiff lacked
standing, since no proper allegation of antitrust injury was made. Id. at 580.
186
AREEDA & HOVENKAMP, supra note 130, § 5.01.
187
Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 17 (1984).
188
Eastman Kodak, 504 U.S. at 464; see also Jefferson Parish, 466 U.S. at 2627 (finding that the hospital did not have a sufficient share of the market such that
forcing was probable). In this case, seventy percent of people living in the hospital’s
183
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associations enjoy for sales of MLS access is clearly substantial
enough to warrant application of the per se rule for tying.189
The MLS is a product so unique that competitors are
unable to offer it. The MLS is a tool widely recognized as a
necessity to any real estate agent wishing to compete
effectively.190 The system has developed over many years, and
would be extremely difficult to recreate at this point. In
Thompson v. Metropolitan Multi-List, Inc., the plaintiff noted
that a new system would need to build a strong collection of
listings before becoming effective, and this would be extremely
difficult in the fast-paced residential real estate market.191
Additionally, the MLS has built an “insurmountable amount of
good will.”192 The court noted that if these allegations were true,
the MLS did have sufficient market power to justify application
of the per se rule.193 Similarly, in Reifert, the court noted that
the local MLS was unique and that it contained “near-perfect
market information.”194 The court found that, because this
information was not available anywhere else and it was
impossible for a real estate agent to perform their job without
the service,195 the MLS had “sufficient market power to restrain
competition.”196
Realtors associations possess a dominant share of the
MLS market. One study found that Realtors affiliates have
control over eighty-four percent of the MLSs in the United
States.197 Additionally, the market for MLS access has very low
district in fact chose to enter other hospitals. Additionally the court determined that
because every patient who received the anisthesiological services actually needed them,
there was no evidence that anyone was being forced to accept the service. Id. at 28.
Therefore, the court determined that the per se rule did not apply. Id. at 28-29.
189
Note that the “relevant market” changes under this analysis depending on
which particular MLS is challenged. For the purposes of this discussion on the practice
generally, the relevant market consists broadly of all MLSs in the nation.
190
191
Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566, 1577 (11th Cir. 1991).
This was one argument made by the plaintiffs in Thompson regarding the market
power of the MLS system. Plaintiffs also presented evidence that an individual actually
did try to compete by starting his own listing service, but failed. Id. The Eleventh
Circuit found that the plaintiffs raised a question of material fact as to whether the
multilisting service had sufficient market power and remanded the case to the district
court. The case settled before further proceedings, and an open MLS was the
negotiated result. Id.
192
Id.
193
Id.
194
Reifert v. S. Cent. Wis. MLS Corp., 450 F.3d. 312, 317 (7th Cir. 2006).
195
Id.
196
Id.
197
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cross-elasticity of demand. If the NAR were to raise the price of
access, it is unlikely sales would decrease because brokers must
have access to the MLS in order to effectively do their job.198
Since the MLS is a highly unique product that is difficult to
replicate, the Realtors possess a dominant share of the market
for MLS services, and there is low cross-price elasticity for
demand in the MLS market, the Realtors associations have
sufficiently substantial market power to satisfy the per se rule
against tying arrangements.
Third, the amount of commerce tied in the market for
association memberships is certainly more than “de minimis”
and is therefore substantial. Assuming a nationwide challenge,
the relevant figure is the total amount of sales for NAR and
state and local affiliated memberships.199 The court in
Thompson determined that annual membership dues of
$30,000 to $70,000 lost to the challenged association were
“clearly substantial.”200 The NAR’s annual membership fees
alone are close to $100 million.201 Additional fees are also paid
to local and sometimes state Realtors associations in order to
access the MLS. There is no question that the total amount is
substantial.
Therefore, millions of dollars are tied up in membership
fees for the NAR, and many of these brokers might be joining
the NAR only to obtain access to the MLS. When agents are
forced to join state, local, and nationwide Realtors
198
Thompson, 934 F.2d at 1577; see also Eastman Kodak Co. v. Image
Technical Servs., Inc., 504 U.S. 451, 470 (1992). Kodak argued that it did not have
sufficient market power because raising prices for the tied products (parts and services)
would result in a disastrous drop in sales for the tying product (photocopier and
micrographic equipment). Id. However, the Court found that the evidence did not
support this theory, noting that “[s]ervice prices have risen for Kodak customers, but
there is no evidence or assertion that Kodak equipment sales have dropped.” Id. at 472.
The Supreme Court upheld the appellate court’s reversal of summary judgment in
favor of Kodak on the tying claim. Id. at 486.
199
In Thompson, the court, although still finding that a not insubstantial
amount of commerce was affected, took a different approach. One of the challenging
plaintiffs was another real estate agent association that claimed it lost close to 400
members due to the tying arrangement. The court multiplied this number of members
by the approximate annual dues those 400 members paid to Realtors Associations, in
determining that $30,000 to $70,000 was a not insubstantial amount of commerce.
Thompson, 934 F.2d at 1578. However, according to the rule from Fortner I, evidence of
the actual dollar amount of sales is not necessary; an estimate of the amount of dollars
tied up by the tying arrangement will suffice. Fortner I, 394 U.S. at 501.
200
Thompson, 934 F.2d at 1578.
201
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associations,202 they might spend $300 to $500 a year on
membership dues.203 It seems likely that these brokers will be
less willing or able to spend even more money to join an
alternative real estate professional organization of their
choice.204 This reality will make it very difficult for the new,
nontraditional associations to compete for members and
effectively constricts expansion of these new models.
Several courts, however, have gone beyond this analysis
and looked at the market for the tied product to find that there
is in fact no market for association memberships, and therefore
no trade in the tied product market can be restrained.205 For
example, in Wells Real Estate v. Greater Lowell Board of
Realtors, the court dismissed the plaintiff’s claim, stating that
it had failed to show any anticompetitive effects in the tied
market because there were no competitors for association
memberships.206 The court, however, was careful to note that
under the per se rule, plaintiffs do not have to show the actual
scope of the anticompetitive effects.207 They must simply “make
some minimal showing of real or potential foreclosed commerce
caused by the tie . . . .”208
In Reifert v. South Central Wisconsin MLS Corp., the
court cited Wells in holding that there were no competitors for
association memberships.209 The plaintiff in Reifert offered a list
of twelve other associations competing for members in the
region, including the NAEBA, but the court dismissed these
competitors as “unlikely substitutes” for the Realtors
association.210 These other associations were found to serve
different purposes because they either catered to specific ethnic
or racial groups, exclusive buyers agents, or only independent
202
Some critics have argued that this practice—requiring membership in all
three levels of Realtor Associations, is an illegal tying arrangement in itself. See, e.g.,
BARRY, supra note 18, at 53.
203
See supra note 20.
204
See supra note 21.
205
These courts have arguably applied more of a rule of reason analysis.
However, since the Supreme Court has been consistently eroding the per se rule, this
Note assumes that the method used by these courts will be upheld and employs the
same analysis.
206
Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 815
(1st Cir. 1988).
207
Id. at 815 n.11.
208
Id.
209
Reifert v. S. Cent. Wis. MLS Corp., 450 F.3d 312, 319 (7th Cir. 2006).
210
Id.
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801
brokers.211 The court also noted that since these other
associations did not have cross-price elasticity of demand with
national and local Realtors associations, they could not be
competitors.212
In determining whether there are competitors for
association memberships, courts should not define the relevant
market as narrowly as the Reifert court. The Reifert court’s
assertion that there is no cross-price elasticity of demand
between Realtors association memberships and those in other
real estate professional organizations may be true. However,
this lack of cross-price elasticity could very well be an effect of
the tying arrangement. As a result of the strength of the tying
arrangement, no real estate agent would purchase another
association membership even if the NAR raised its membership
prices because they must have access to the MLS.
The Reifert court’s reliance on the Wells decision is
misplaced. In Wells, the plaintiff did not present evidence of
any other competitors.213 The court stated that it is not that “a
plaintiff necessarily must prove the actual scope of
anticompetitive effects in the market—the per se rule
eliminates such a requirement.”214 But the plaintiff must make
[a] minimal showing of real or potential foreclosed commerce
caused by the tie.”215 In Reifert, the plaintiff clearly made this
minimal showing by listing twelve potential competitors. The
Reifert court’s requirement of showing the actual economic
effects in the tied product market beyond this minimal showing
is appropriate under a rule of reason analysis, but should not
211
Id.
Id. at 319-20. The court distinguished Thompson because in that case the
plaintiff was another association alleging a loss of members to the Realtors association
as a result of the tie. Interestingly, the association in Thompson that was considered a
competitor of the Realtors catered to African American real estate agents. See
Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566, 1570 (11th Cir. 1991). The Reifert
court however, claimed that associations catering to a specific racial group cannot be
competitors with Realtors associations. Reifert, 450 F.3d at 319.
213
Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 815
(1st Cir. 1988).
214
Id. at 815 n.11.
215
Id.; see also Coniglio v. Highwood Servs., Inc., 495 F.2d 1286, 1293 (2d Cir.
1974). Coniglio was similarly dismissed because the court found that the Plaintiff
failed to show that there were any competitors in the market for the tied product. Id. at
1291. The plaintiff tried to define the relevant market extremely broadly in order to
find competitors for a market selling tickets to a professional football league’s games.
Id. at 1292. The plaintiff argued that any other activity or event a person could attend
on that night was a competitor of the football league, foreclosed by the tie. Id. This
definition of the relevant market is clearly unreasonably broad, as the court held. Id.
212
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be applied in this situation, where the probability of forcing is
probable.
While it may have been true in the early years of the
NAR that there were no competing associations, in the
radically changing residential real estate industry of today, it
is undeniable that there are now competing real estate agent
membership associations.216 Furthermore, commentators have
noted that these new, smaller associations struggle to grow in
the presence of the NAR because only the NAR allows brokers
access to the MLS.217 In fact, “the smaller association may
suffer significant membership losses to the point of
dissolution.”218
Therefore, the NAR practice requiring membership in a
Realtor-affiliated association in order to obtain MLS access
should be invalidated under the per se rule for tying
arrangements under Section 1 of the Sherman Act.
V.
EXCLUDING NON-NAR MEMBERS FROM ACCESSING
THE MLS IS AN ILLEGAL GROUP BOYCOTT UNDER
THE SHERMAN ACT
A.
The Applicable Standard for Group Boycott Claims
For group boycott claims, the per se rule applies only
when the challenged exclusion is “plainly anticompetitive” and
“lacking . . . any redeeming virtue.”219 A practice meets this test
when it “can further none of the Act’s goals—when it operates
to deny to consumers the opportunity to choose among
alternative offers without offering the possibility of any joint,
efficiency-producing economic activities.”220 Under the rule of
reason analysis for a group boycott, the challenged competitor
must first be shown to possess sufficient market power such
that a Sherman Act analysis of the exclusion policy is
warranted.221 The burden then shifts to the defendant to show
that it had a legitimate business purpose for its refusal to
216
Robert D. Butters, Real Estate Brokers and Antitrust Laws, REAL ESTATE
BROKERS AND ANTITRUST LAWS (2006), at § 8.04 2.b.iv.
218
Id.
219
Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 8 (1979)
(quoting Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679, 692 (1978); N. Pac.
Ry. v. United States, 356 U.S. 1, 5 (1958)).
220
United States v. Realty Multi-List, Inc., 629 F.2d 1351, 1364 (5th Cir.
1980).
221
Id.
217
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803
deal.222 The rule therefore involves a determination of the “net
effect” of the arrangement; if the net effect of the exclusion is
pro-competitive, the exclusion will be allowed.223
B.
Application of the Group Boycott Theory
Challenges to NAR-affiliated associations under the
group boycott theory have historically been somewhat more
successful than those based on a tying theory.224 Courts are
hesitant to apply the per se standard to a group boycott
analysis of restrictions on MLS access.225 Application of the per
se rule in the group boycott context has different implications
than using the per se rule in the tying context.226 If a per se rule
invalidated the membership requirement as a group boycott,
the holding could be read to mean that any membership
association providing a benefit to its members is required to
provide that benefit to nonmembers.227 However, one can argue
that because the per se rule only invalidates plainly
anticompetitive practices, and most association membership
benefits are not plainly anticompetitive, this worry is
unfounded.
Nevertheless, because courts generally use a rule of
reason analysis when examining criteria excluding brokers
from access to the MLS, this Note does the same. Under this
standard, the NAR practice should be invalidated as a group
boycott under the Sherman Act. First, the NAR-controlled
MLSs have enough market power to justify scrutinizing any
limitations put on broker access to them.228 Second, the possible
anticompetitive harm caused by excluding a broker from MLS
access is high, and there is no pro-competitive justification for
requiring NAR membership that outweighs this potential
harm.229
222
Id. at 1374-75.
Id. at 1370.
224
See, e.g., Realty Multi-List, 629 F.2d at 1351; Marin County Bd. of Realtors
v. Palsson, 549 P.2d 833 (Cal. 1976) (invalidating the Realtors board rule denying
access to the MLS by nonmembers under the rule of reason standard).
225
See Realty Multi-List, 629 F.2d at 1367.
226
In Thompson v. Metropolitan Multi-List, Inc., for example, the court
followed a per se analysis for the tying claim, but followed Realty Multi-List and
applied a rule of reason analysis for the group boycott claim. 934 F.2d 1566, 1579-80
(11th Cir. 1991).
227
See, e.g., Palsson, 549 P.2d at 839.
228
See infra Part V.B.1.
229
See infra Part V.B.2.
223
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1. The MLS Has Sufficient Market Power to Justify
Scrutinizing Membership Requirements Limiting
Access to It
Market power exists if the MLS “is of ‘sufficient
economic importance that exclusion results in the denial of the
opportunity to compete effectively on equal terms.’”230 The
factors courts consider include the number and dollar amount
of sales made through the MLS, the number of brokers in the
market who use the MLS, and whether member brokers
themselves acknowledge that MLS access is a competitive
advantage.231 The relevant market is the residential housing
market in the geographic area where the MLS operates.232
Courts generally agree that the MLS has sufficient market
power to justify scrutiny of access restrictions.233
NAR-operated MLSs list the majority of residential
properties bought and sold across the United States.234 The
relevant figure for determining market power will change
depending on the geographic area covered by the particular
MLS being challenged. One court found sufficient market
power where the MLS accounted for “35% of the total dollar
sales of all real property . . . and a presumably much higher
percentage of the sales dollars for residential property [in the
relevant geographic market].”235 Another court found that
because the MLS listings accounted for over $50 million in
sales, it was clear that nonmembers were “foreclosed from a not
insignificant segment of the market.”236 Recent complaints
alleged that the amount of sales made through the challenged
230
Realty Multi-List, 629 F.2d at 1373 (quoting Austin, supra note 11, at
1346) (emphasis in original).
231
Id. at 1374; Thompson, 934 F.2d at 1580.
232
See, e.g., Palsson, 549 P.2d at 842.
233
In Palsson, looking at statistics citing the dollar amount of sales
attributable to the MLS, and considering the number of brokers using the system, the
court concluded that the “problems of a nonmember of the board in competing against
this colossus are manifest.” Id. at 842. In Thompson, the court stated that the
dominating role of the MLS alleged by the plaintiffs was sufficient such that summary
judgment was inappropriate on the market power prong of a group boycott analysis.
Thompson, 934 F.2d at 1580-81.
234
235
Palsson, 549 P.2d at 842.
236
Realty Multi-List, 629 F.2d at 1374.
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805
MLSs in the relevant geographic area accounted for
“[a]pproximately $2.2 billion”237 and “[n]early $1 billion.”238
These amounts are clearly large enough to constitute
sufficient market power. In finding sufficient market power,
one court found it relevant that “a vast majority of the active
residential real estate brokers” in the relevant geographic area
use the MLS.239 Another court similarly noted that “[t]hreefourths of the brokers actively selling residential real property”
use the system.240 Recent complaints have alleged that the
number of active residential real estate agents in the relevant
geographic area that use the MLS to buy and sell real estate is
“[a]pproximately 100%”241 or “[o]ver 90%.”242 As discussed above,
access to the MLS is generally recognized as a practical
necessity for a broker.243
These recent decisions, however, stated that because
there is no competitive market for real estate agent association
memberships, there is insufficient market power to warrant
review of the membership requirements.244 These courts did not
analyze the proper market in making this determination. The
relevant market should not be the market for association
memberships, as in a rule of reason tying analysis.245 The
relevant market should be the market for residential real
estate in the proper geographic area, as described above.246
Moreover, even using the market definition offered in
these opinions, there is sufficient market power to warrant
judicial review. Contrary to the courts’ findings, there is a
competitive market for association memberships.247 Alternative
237
First Amended Complaint at 1, Reifert v. S. Cent. Wis. MLS Corp., No.
04-C-0969-S, 2005 U.S. Dist. LEXIS 23431 (W.D. Wis. Aug. 25, 2005) [hereinafter
Reifert Complaint].
238
First Amended Complaint at 1, Prencipe v. Spokane Bd. of Realtors, No.
CV-04-0319-LRS, 2006 U.S. Dist. LEXIS 29828 (E.D. Wash. May 12, 2006) [hereinafter
Prencipe Complaint].
239
Realty Multi-List, 629 F.2d. at 1374.
240
Marin County Bd. of Realtors v. Palsson, 549 P.2d 833, 842 (Cal. 1976).
241
Reifert Complaint, supra note 237, at 1.
242
Prencipe Complaint, supra note 238, at 1.
243
244
See Reifert, 450 F.3d at 321.
245
One of these courts even stated, “To prove a group boycott, a plaintiff must
establish that the membership requirement has had an adverse impact upon
competition in the market for the tied product.” Id. This statement does not cite to any
authority. This court seemed to confuse a rule of reason analysis for a tying claim with
the analysis for a group boycott claim. See id.
246
247
See discussion supra Part II.D.
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associations that cater to non-traditional methods of real estate
brokerage are becoming more common.248
2. There Is No Legitimate Competitive Reason to
Justify Prohibiting Non-Realtors from Accessing
the MLS
The rule of reason analysis for group boycotts requires
the balancing of any pro-competitive justifications for the
exclusion of nonmembers with the potential anticompetitive
effects of the practice.249 The burden of proof would be on
the Realtors association to show that the pro-competitive
effects of the membership requirement outweigh the potential
anticompetitive consequences.250 Courts have recognized that
“exclusion from the multiple listing service has pronounced
anticompetitive effects; unless those effects are counterbalanced by some direct benefit to competition, the regulation
must fail.”251
Limiting MLS access to Realtors has harmful
anticompetitive effects on two levels. First, the requirement
affects competition between brokers because excluding a broker
from accessing the MLS would be competitively detrimental to
that broker. Second, the membership requirement might
ultimately affect consumers. The NAR encourages the
perseverance of the traditional model for real estate
brokerage.252 Discouraging the growth of alternative models for
brokerage limits consumer choice and helps to maintain steady
commission rates.253
There are no pro-competitive justifications sufficient to
outweigh these extensive anticompetitive effects. Courts have
differed on this prong of the analysis. Only in California have
courts decided that there is no legitimate competitive purpose
for requiring a Realtors association membership to access the
MLS. This jurisdiction holds that even “where membership in
the board is open to all real estate licensees on reasonable and
248
249
See discussion supra Part II.D.
United States v. Realty Multi-List, Inc., 629 F.2d 1351, 1375-76 (5th Cir.
1980).
250
Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566, 1581 (11th Cir. 1991).
Realty Multi-List, 629 F.2d. at 1376.
252
See supra Part IV.
253
See supra Part IV; see also Marin County Bd. of Realtors v. Palsson, 549
P.2d 833, 843 (Cal. 1976) (describing how a “buyer or seller of a home also suffers by
the board’s practices”).
251
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807
nondiscriminatory terms,” nonmembers must be granted access
to the MLS.254 Other courts, while not invalidating the
membership requirement altogether, have invalidated specific
membership criteria as unreasonable for lacking a justifiable
pro-competitive purpose.255 The cases from 2006, including
Reifert, did not even reach this step of the analysis. Instead,
these courts rested their decisions on the arguably incorrect
conclusion that there can be no group boycott in this situation
because there is “no competitive market” for Realtors
association memberships.256
Realtors associations commonly offer the justification
that they need to maintain a level of professional conduct in
MLS operation. The associations argue that this purpose is
fulfilled by requiring all NAR members to adhere to its ethical
code of conduct. Several arguments refute this theory. First,
the MLS as a stand-alone entity could just create its own
standards of professionalism that brokers would need to agree
to before using the MLS. These rules could achieve the same
effect as the NAR Code.257 Second, state licensing commissions
set professional standards that must be met in order to even
obtain a license to practice real estate.258 Accordingly,
254
People v. Nat’l Ass’n of Realtors, 155 Cal. App. 3d 578, 588 (Ct. App. 1984)
(clarifying the scope of the holding in Palsson). Other courts, however, disagree with
this analysis. Some courts refuse to find a group boycott, arguing that the membership
requirements are not arbitrary or difficult to meet. These courts reason that since any
broker wishing to join the service may do so, they are not actually being excluded. See,
e.g., Pomanowski v. Monmouth County Bd. of Realtors, 446 A.2d 83, 92 (N.J. 1982)
(“Where there are no exclusionary conditions attached to Realtor board membership,
and there is no contention that the cost is prohibitively high, it is difficult to see any
affront to competition.”).
255
In Realty Multi-List, the court decided that in order for the MLS to
function effectively, some membership criteria were necessary to ensure that those
participating would adhere to a level of professional standards. 629 F.2d at 1381.
However, the court ultimately decided that requiring a “favorable credit report and
business reputation” was not narrowly tailored enough to any pro-competitive concern.
Id. (citation omitted). Further, the standard was too subjective. Id. Additionally it was
unreasonable to require the applicant to have an office “open during customary hours
of business,” since the requirement was not necessary for a functioning MLS. Id. at
1383 (internal quotation marks and citations omitted). The court also invalidated the
requirement that the applicant purchase one share of stock in the corporation at a fee
set by the board—currently $1000. Id. at 1389. The court stated that although such an
association can charge a fee, it must be based on its legitimate operational needs. Id.
256
257
Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566, 1581-82 (11th Cir.
1991) (“Such rules would not constitute a group boycott and would achieve the same
ends that Metro claims the Realtor membership requirements achieve.”).
258
In Realty Multi-List, the court required the MLS to “make a showing either
that the legitimate needs of the service require protection in excess of that provided by
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membership in a Realtors association is not necessary to
ensure professionalism in MLS operation.
A second justification Realtors offer is that the
arbitration to settle commission disputes mandated by the
Realtors ethical code is pro-competition. The association claims
that without an arbitration clause, Realtors would be less
likely to use the MLS, as they would not feel secure that there
is a method for resolving commission disputes. However, the
arbitration process the NAR uses has actually been criticized
as anticompetitive and discriminatory toward non-traditional
brokers.259 In addition, the same argument as above applies
here—the MLS itself could mandate arbitration to settle
disputes. There is no reason why separate membership in the
NAR is necessary to achieve this result.
Brokers should not have to pay a fee to Realtors
associations in excess of the amount used to maintain the MLS.
Courts have stated that fees should be limited to what is
needed for “maintenance and development” of the MLS.260 In
order to access the MLS, brokers generally must pay dues not
just to the NAR, but also to the local and state chapter of the
NAR. The fee paid to join the NAR and local associations
clearly goes to more than just maintaining the MLS. In fact, a
look at NAR’s 2005 annual report reveals that the lion’s share
of membership dues were used for “PR and Communications”
(27%), followed by “Public Policy” (15%).261 Interestingly much
of this “PR” might actually be spent to try and improve the
public’s negative image of Realtors as unethical and
dishonest.262 Only 6% of the dues are allocated to “Technology,”
and the report does not specify whether this even refers to the
MLS.
Because the anticompetitive potential in requiring
membership in the NAR to access the MLS outweighs any
the state or that the state does not adequately enforce its own regulations.” 629 F.2d at
1380.
259
See supra Part II.C.1.
260
Realty Multi-List, 629 F.2d at 1386-87 (“In order to avoid running afoul of
the antitrust laws, [the association] may not assume the power to set fees at a level
greater than its legitimate needs.”).
261
NATIONAL ASSOCIATION OF REALTORS, 2005 ANNUAL REPORT 28 (2006),
available at http://www.realtor.org/realtororg.nsf/pages/2005_annual_report. “Public
policy” likely refers to NAR efforts to perpetuate the traditional model for residential
real estate brokerage.
262
See Blanche Evans, Why Real Estate Agents Fell Off Gallup’s HonestyIntegrity List, REALTY TIMES, Jan. 9, 2002, http://realtytimes.com/rtapages/
20020106_gallup.htm.
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809
potential pro-competitive justifications for the requirement, the
practice should be invalidated as a group boycott.
VI.
CONCLUSION
The once-uniform residential real estate industry is
changing and real estate professionals should embrace and
encourage new business models that serve consumer interests.
The practice of requiring membership in a Realtor association
in order to access the competitively necessary MLS should end.
The arrangement constitutes both an illegal tying arrangement
and a group boycott under the Sherman Act. Absent a judicial
finding of an antitrust violation, there must be action by state
real estate commissions263 or legislatures to end the practice.
However, since real estate commissions are frequently
dominated by traditionalist Realtors with a strong interest in
maintaining the status quo in the residential real estate
industry,264 it may be necessary for state or federal legislatures
to become involved.265 This change will encourage the
development of a truly competitive industry for residential real
estate in the future.
Beth Nagalski†
263
Largely in order to ensure consumer protection, all fifty states have
created state agencies responsible for licensing real estate agents, and there is a
similar national counterpart. White, supra note 1, at 19. Recent actions of many of
these agencies, however, have actually been arguably anticompetitive, and anticonsumerist. For example, minimum service laws, which require all brokers to provide
at least a certain level of service in order to obtain their license are aimed at thwarting
the growth of the discount broker industry. See, e.g., Hahn et al., supra note 1, at 88
(“Legislatures . . . have recently introduced or enacted bills to prohibit real estate
agents from offering more limited service, which they can perform at a lower fee.”).
Both the Department of Justice and Federal Trade Commission have publicly
expressed their opposition to such laws. Id.
264
See Brobeck Testimony, supra note 5; see Part II.C.
265
Note, however, that the NAR is an extremely powerful lobbying force in
Washington, so passing legislation that will directly affect the NAR’s financial status is
not likely to be easy. See supra notes 85-87 and accompanying text.
†
J.D. Candidate, 2008, Brooklyn Law School; B.S., Environmental Policy
and Behavior, University of Michigan, 2003. I would like to thank Professor Michael
Cahill for his invaluable guidance in the preparation of this note. I would also like to
thank the Brooklyn Law Review staff for their helpful work and suggestions, and my
mother and father for their love and support.
Melting in the Hands of the Court
M&M’S, ART, AND A PRISONER’S
RIGHT TO FREEDOM OF EXPRESSION
INTRODUCTION
In 1980, Donny Johnson pled guilty to second degree
murder for the death of John Viveiros and was sentenced to
fifteen years to life imprisonment.1 Nearly a decade later,
Johnson was sentenced to two more terms of nine years to life
for stabbing one prison guard and assaulting another.2 He is
currently an inmate at Pelican Bay State Prison (“PBSP”) in
California.3 Johnson is held in the prison’s Security Housing
Unit (“SHU”), its highest-level security cell, where he is in
solitary confinement for what will likely be the rest of his life.4
For all his solitude, Johnson has been in the public eye
of late. While in the SHU, Johnson painted postcards by using
his own hair, foil, and plastic to make paintbrushes and
leeching M&M’s for paint.5 Johnson sent his postcards to a
1
Adam Liptak, Behind Bars, He Turns M&M’s into an Art Form, N.Y.
TIMES, July 21, 2006 [hereinafter Liptak, Behind Bars], available at http://
www.nytimes.com/2006/07/21/us/21artist.html?_r-l&oref. Johnson and two friends
were involved in the murder, which took place at a San Jose party. Id. An argument
over the sale of PCP-laced cigarettes led to the fatal stabbing. Id. Johnson was only
twenty years old at the time of his second-degree murder plea. Id.
2
Id. At trial, Johnson claimed he acted in self-defense and that he believed a
gang member attacked him. Id.
3
Id. The maximum-security prison sits on 275 acres of Northern California
territory. According to its website, PBSP holds the state’s “most serious criminal
offenders in a secure, safe, and disciplined institutional setting.” The prison currently
houses 3461 inmates, with a staff of 1548. California Department of Corrections and
Rehabilitation: Pelican Bay State Prison (“PBSP”), http://www.cdcr.ca.gov/Visitors/
Facilities/PBSP.html (last visited Sept. 8, 2007).
4
Liptak, Behind Bars, supra note 1. Roughly half of PBSP’s inmates are
held in the SHU. California Department of Corrections and Rehabilitation, supra note
3. The SHU’s inmates present “serious management concerns,” and include “prison
gang members and violent maximum security inmates.” Id.
5
Liptak, Behind Bars, supra note 1; Kim Curtis, Prison Artist Faces
Disciplinary Hearing, ASSOCIATED PRESS, Aug. 4, 2002, available at
http://www.pelicanbayprisonproject.org/features/htm (last visited Sept. 24, 2007).
Johnson’s biography appears on Wikipedia, an online encyclopedia; the biography
focuses primarily on his art, its exhibit and donation to charity. See Donny Johnson,
http://en.wikipedia.org/wiki/Donny_Johnson (last visited Sept. 8, 2007). He is described
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“pen-pal,” psychoanalyst Stephen Kurtz.6 Impressed by the art,
Kurtz displayed the postcards in a Mexican gallery in the
summer of 2006.7 The exhibition drew at least 500 people, and
approximately twenty postcards sold for $500 each.8
The success of Johnson’s gallery, however, did not
impress everyone. In response to a New York Times article on
Johnson’s art and the gallery, prison officials disciplined
Johnson for engaging in “unauthorized business dealings” by
banning him from mailing his postcards.9 Such a regulation, if
challenged before the Supreme Court, is likely to withstand
judicial scrutiny. The Court has consistently upheld prison
regulations as constitutional.10 The First Amendment in
particular is not absolute and is subject to certain restrictions
when the speaker is an inmate.11 From limitations on family
visits to magazines, the Court gives great deference to prison
administrators.12
In doing so, however, the Court may help a state
achieve an otherwise unattainable legislative goal. For
example, virtually all states and the federal government have
enacted laws that limit a criminal’s right to profit from
expressions of his crime.13 Anti-profit legislation, commonly
as “an American painter . . . known for his unconventional technique, which involves
using a paint brush made out of his own hair and paint pigment from M&M’s dissolved
in water.” Id. A description of his crimes is limited to two sentences. Id.
6
Curtis, supra note 5. Kurtz runs the Pelican Bay Prison Project, a nonprofit organization—“completely independent of and hav[ing] no connection” to
California’s Department of Corrections—that is “dedicated to the men incarcerated at
[PBSP].” Pelican Bay Prison Project, http://www.pelicanbayprisonproject.org (last
visited Sept. 29, 2007); see also Kim Curtis, Prison Artist in Hot Water: Officials Say He
Broke Rules with M&M Creations Sold for Charity, CHI. TRIB., Aug. 6, 2006, at 2.
7
Curtis, supra note 5.
8
Id.
9
Adam Liptak, Prison Disciplines Publicized Inmate who Makes Art Using
M&Ms, N.Y. TIMES, Aug. 4, 2006, at A1 [hereinafter Liptak, Prison Disciplines
Publicized Inmate]. Under California’s Code of Regulations, inmates cannot “actively
engage in a business or profession” unless it is authorized by the head of the
institution. CAL. CODE REGS. tit. 15, § 3024(a) (1995). The provision defines “business”
as “any revenue generating or profit making activity.” Id. Prison officials can reject an
inmate’s mail if it “relates to the direction of an inmate’s business or profession.” Id.
§ 3024(b).
10
11
See infra Part I.
12
See infra Part III.
13
New York enacted its first Son-of-Sam Law in 1977. Michelle G. Lewis
Liebeskind, Back to Basics for Victims: Striking Son of Sam Laws in Favor of an
Amended Restitutionary Scheme, 1994 ANN. SURV. AM. L. 29 (1994). Nearly every state
and the federal government adopted some form of anti-profit legislation. 18 U.S.C.
§ 3681 (2006); ALA. CODE § 41-9-80 (LexisNexis 2000); ALASKA STAT. § 12.61.020
(2006); ARIZ. REV. STAT. ANN. § 13-4202 (2001); ARK. CODE ANN. § 16-90-308 (2006);
2008]
MELTING IN THE HANDS OF THE COURT
813
referred to as Son-of-Sam laws, have met constitutional
challenges during the past fifteen years with little success for
states.14 The standard for withstanding constitutional muster is
high—the law must be “narrowly tailored,” says the Court, to a
compelling government interest.15
Nevertheless, by virtue of judicial deference, a prison
regulation may accomplish the same goal that an imperfect,
constitutionally defective state law cannot. Thus, judicial
deference can render the state’s imperfect criminal anti-profit
law irrelevant. This Note argues that recent Supreme Court
decisions that defer to state prison administrators unfairly
curtail prisoners’ First Amendment right to freedom of
expression16 while successfully supplanting the goal of an
imperfect state law.
Part I of this Note describes the First Amendment and
its scope. Part II briefly addresses the history of the Court’s
position in reviewing prisoners’ rights cases. Part III discusses
COLO. REV. STAT. § 24-4.1-201 (2007); CONN. GEN. STAT. ANN. § 54-218 (2001); DEL.
CODE ANN. tit. 11 § 9103 (2001); FLA. STAT. ANN. § 944.512 (2001); GA. CODE ANN. § 1714-31 (2004); HAW. REV. STAT. § 351-81 (1993); IDAHO CODE ANN. § 19-5301 (2004);
IND. CODE ANN. § 5-2-6.3-3 (LexisNexis 2005); IOWA CODE ANN. § 910.15 (West 2003);
KAN. STAT. ANN. § 74-7319 (1992); KY. REV. STAT. ANN. § 346.165 (LexisNexis 2005);
ME. REV. STAT. ANN. tit. 14 § 752-E (2003); MD. CODE ANN., CRIM. PROC. § 11-622
(LexisNexis 2002); MICH. COMP. LAWS ANN. § 780.768 (West 1998); MINN. STAT. ANN.
§ 611A.68 (West 2003); MISS. CODE ANN. § 99-38-5 (2002); MO. ANN. STAT. § 595.045
(West 2003); MONT. CODE ANN. § 53-9-104d (2007); NEB. REV. STAT. ANN. § 81-1836
(1999); N.Y. EXEC. LAW § 632-a (McKinney 2001); N.D. CENT. CODE § 32-07.1-01
(LexisNexis 2004); OHIO REV. CODE ANN. § 2969.01 (LexisNexis 2006); OKLA. STAT.
ANN. tit. 22 § 17 (West 2002); OR. REV. STAT. § 147.275 (2005); 42 PA. CONS. STAT.
ANN.. § 8312 (West); R.I. GEN. LAWS §§ 12-25.1-18 (2002); S.C. CODE ANN. § 17-25-530
(2003); S.D. CODIFIED LAWS § 23A-28A-1 (2004); TENN. CODE ANN. § 29-13-403 (2000);
UTAH CODE ANN. § 77-18-8.3 (2003); VA. CODE ANN. § 19.2-368.20 (2004); WASH. REV.
CODE ANN. § 7.68.200 (West 2007); W. VA. CODE ANN. § 14-2B-2 (LexisNexis 2004);
WIS. STAT. ANN. § 949.165 (West 2005); WYO. STAT. ANN. §§ 1-40-301 to -303 (2007);
CAL. CIV. CODE § 2225 (West 2007) (held unconstitutional in Keenan v. Superior Court
of L.A. County, 40 P.3d 718, 721 (Cal. 2002); see discussion infra Part IV.C); MASS.
GEN. LAWS. ANN. Ch. 258A §§ 1, 9 (West 1992) (repealed 1993); NEV. REV. STAT.
§ 217.007 (LexisNexis 2005) (held unconstitutional in Seres v. Lerner, 102 P.3d 91
(Nev. 2004)); N.J. STAT. ANN. §§ 52:4B-26 to -33 (West 2001) (repealed in 2003); N.M.
STAT. ANN. § 31-22-22 (LexisNexis 2006) (repealed 2006).
14
Melissa J. Malecki, Son of Sam: Has North Carolina Remedied the Past
Problems of Criminal Anti-Profit Legislation?, 89 MARQ. L. REV. 673, 677 (2006) (“[N]o
Son of Sam law challenged for constitutionality in relation to the First Amendment has
been able to withstand the attack . . . .”).
15
Simon & Schuster v. N.Y. State Crime Victims Bd., 502 U.S. 105, 120-23
(1991).
16
“Expression” is not in the First Amendment, but it is nonetheless an
accepted term. MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 1
n.1 (1984). It includes all forms of expression, including those specifically mentioned in
the First Amendment (free speech, press, etc.) and those that have come within its
reach, including association, art, and music. Id.
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the Supreme Court’s deference to prison administration in its
regulation of prisoners. Part IV focuses on how prison
administration deference may accomplish the goal of an
otherwise unconstitutional law by highlighting California’s
Son-of-Sam law. Finally, Part V focuses on Johnson’s case
specifically and suggests extending the scope of judicial review
in prisoners’ First Amendment rights cases.
I.
THE SCOPE OF THE FIRST AMENDMENT
The First Amendment states that “Congress shall make
no law . . . abridging the freedom of speech.”17 Taken literally,
the First Amendment protects the spoken word exclusively.18
Supreme Court cases, however, have not limited First
Amendment protection to spoken or written words.19 Instead,
the Court construes speech to include non-verbal forms of
expression, or symbolic speech, which comes within the ambit
of the First Amendment.20
17
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.” U.S. CONST. amend. I.
18
The First Amendment also protects the press, religion, assembly and the
right to petition the Government. Id. Textually, however, the only form of individual
expression it protects is speech. Id. Arguably the most protected speech is political
speech, where only “a clear and present danger” justifies suppression. See Schenck v.
United States, 249 U.S. 47, 52 (1919).
19
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515
U.S. 557, 569 (U.S. 1995) (“[T]he Constitution looks beyond written or spoken words as
mediums of expression.”). Supreme Court cases “have never suggested that expression
about philosophical, social, artistic, economic, literary, or ethical matter—to take a
nonexhaustive list of labels—is not entitled to full First Amendment protection.” Abood
v. Detroit Bd. of Educ., 431 U.S. 209, 231 (1977). Various Supreme Court cases
highlight the broad range of expression protected by the First Amendment. See Joseph
Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952) (holding that expression by means of
motion pictures is protected by the First Amendment’s free speech and free press
clauses); Hurley, 515 U.S. at 568-69 (finding that parades, in which the collective goal
of marchers is to make a statement, is a form of expression protected by the First
Amendment). Although recognized, certain kinds of expression merit less protection
than others. Obscenity, for example, may be seen to merit a lower level of protection
because its “patently offensive way” of portraying sex lacks any “serious literary,
artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24 (1973).
20
See, e.g., Texas v. Johnson, 491 U.S. 397, 414 (1989) (finding that a Texas
law which banned flag desecration violated the “bedrock principle” that the
“government may not prohibit the expression of an idea simply because society finds
the idea itself offensive or disagreeable”); Schad v. Borough of Mount Ephraim, 452
U.S. 61, 65-66 (1981) (nude dancing not excluded from First Amendment protection);
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (wearing an
armband); Brown v. Louisiana, 383 U.S. 131, 142-43 (1966) (silent library sit-in).
2008]
815
Scholars have tried to define the speech that is
protected by the First Amendment.21 For many, however, the
real question of what comes within the First Amendment’s
scope lies in the values the amendment is meant to protect.
Various theories attempt to pinpoint the extent of the First
Amendment protection by focusing on specific values.22 One
example is the liberty model.23 Under this model, the First
Amendment protects an individual’s right to expression from
government restrictions.24 An individual’s verbal and nonverbal expressions are within the First Amendment’s
protection because its purpose is to further individual selfrealization and self-determination.25 Thus, the purpose of the
First Amendment is to permit individual growth for both the
speaker and the recipient by encouraging diverse viewpoints.26
Moreover, any limitation on individual expression hampers
society’s development as a whole.27
21
For example, Professor Emerson’s theory distinguishes between expression
and action. THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 17 (1970).
Although expression and action often go hand-in-hand, the extent to which conduct is
expressive determines its protection. Id. at 17-18. Expression is conduct that must be
unbridled and encouraged. Id. at 17. Action, however, is controllable but not if it
imposes on expression. Id. Thus, the government can regulate actions to protect certain
societal interests, but it cannot suppress expression in the process. Id.
22
Under the marketplace model, the rationale for free expression is the
search for truth. REDISH, supra note 16, at 45-46 (discussing John Stuart Mill’s theory
that the competition of ideas leads to truth); see also DANIEL A. FARBER, THE FIRST
AMENDMENT 4-5 (1998). Information is viewed as a public good, and expression fosters
the exchange of that good. Id. at 5. Critics of the marketplace model cite media control
and the inability of economically disadvantaged groups from accessing information as
impediments to the model’s goals. C. Edwin Baker, Scope of the First Amendment
Freedom of Speech, 25 UCLA L. REV. 964, 965-66 (1978), reprinted in THE FIRST
AMENDMENT: A READER 82 (John H. Garvey & Frederick Schauer eds., 1992). Under
the market-failure model, states should intervene to ensure that free speech fosters
ideas and achieves beneficial societal goals. Id. at 966.
23
24
Id. at 966. Freedom of expression and personal fulfillment are the
cornerstone of the “self-realization” theories of the First Amendment. FARBER, supra
note 22, at 4.
25
26
FARBER, supra note 22, at 4 (“If people lack access to a wide range of ideas,
they are prevented from imagining the full range of possibilities in their lives.”). Unlike
the marketplace model, however, the focus is not on the exchange of ideas to weed out
falsehood. Baker, supra note 22, at 967 (“[T]ruth is discovered through its competition
with falsehood for acceptance.”). Rather, the free speech clause protects the “value of
speech conduct to the individual.” Id. at 966. For a discussion on the marketplace,
market failure and liberty models of the free speech clause, see generally Baker, supra
note 22.
27
FARBER, supra note 22, at 4 (arguing that restricting expression limits “the
ability of writers and artists to express their perspectives, impoverishing the national
culture”).
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Notwithstanding the difficulties in defining the First
Amendment’s protected speech boundaries,28 or the particular
set of values it is said to protect, the government can restrict
the “time, place, or manner of speech.”29 Any restriction,
however, is subject to judicial review under a standard ranging
from strict scrutiny to mere rational review.30 A regulation
survives strict scrutiny if its restriction on a fundamental right
is narrowly tailored to serve a compelling governmental
interest.31 An intermediate standard of review requires that the
regulation be substantially related to an important
governmental interest.32 A rational level of review requires only
that the regulation bear a reasonable relation to a legitimate
government interest.33 In the free speech context, a contentbased restriction must withstand strict scrutiny analysis.34
Such content-based regulations include those that restrict an
inmate’s right to profit from crime-related expressions.35 A
content-neutral restriction must survive an intermediate level
of review.36
Prison regulations, however, that impose upon an
inmate’s free speech rights are subject to the lowest level of
review.37 The government has a special relationship with an
inmate speaker.38 This relationship gives the government a
unique regulatory power over the inmate that it does not have
with the private individual.39 The crucial issue for the Court is
the extent to which a particular situation “fall[s] outside the
‘normal’ First Amendment rules,” and its willingness to defer to
28
Articulating a workable definition is at the core of the problem. Overly
simplistic definitions fail for their lack of “analytical or predictive value,” whereas
consistent definitions strip the freedom of rights the Amendment is intended to protect.
Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34
VAND. L. REV. 265, 275 (1981).
29
FARBER, supra note 22, at 15.
30
Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Analysis, 85 CAL..
L. REV. 297, 303 (1997). The Court’s three-tiered approach in reviewing free speech
restrictions stems from its review of equal protection challenges, where the Court has
traditionally used this approach. Id.
31
Id. at 303-04.
32
Id. at 303.
33
Id.
34
Id. at 304-05.
35
See discussion on Simon & Schuster infra Part IV.B.
36
Bhagwat, supra note 30, at 305.
37
See discussion on Turner v. Safley infra Part III.B.
38
FARBER, supra note 22, at 15.
39
Id. at 15, 187 (“Given its custodial authority in [prisons, the government]
has an unusually broad interest in controlling speech . . . .”).
2008]
817
government officials.40 In the case of inmates, the strong
judicial deference to prison officials resulted in the lowest-level
standard of judicial review.41
II.
THE COURT’S “IRON CURTAIN”
The Court’s deference to prison administrators’
decisions stems from the purpose of incarceration.
Imprisonment as a form of punishment became prevalent in
the early nineteenth century.42 It replaced the more violent
forms of punishment that prevailed during colonization,
including whipping and execution by hanging.43 Rehabilitation
became the goal of imprisonment.44 Because it was believed
idleness resulted in crime, rehabilitation consisted of an inmate
working during the day, either alone or with other inmates,
and sleeping alone at night.45 Inmates were not allowed to
speak to each other and could only read the Bible.46 This view
persisted until the twentieth century, when reformers argued
that the current state of prisons further hardened a criminal.47
Despite the push for reform, questions as to whether an inmate
retained any constitutional rights resulted in little change.48
Thus, until the mid-twentieth century, courts adhered to the
“hands-off” doctrine.49
The hands-off doctrine embodied the Court’s
unwillingness to review prison administrators’ decisions.
Under the doctrine, federal courts avoided addressing whether
prisoners retained any constitutional rights.50 The primary
function of the courts was to ensure the freedom of illegally
confined individuals, not to “superintend the treatment and
40
Id. at 15.
See discussion on Turner infra Part III.B.
42
1 MICHAEL B. MUSHLIN, RIGHTS OF PRISONERS 6 (3d ed. 2002).
43
Id.
44
Id. at 6-7.
45
Id. at 7.
46
Id.
47
Id. at 8. Today, however, solitary confinement, or segregation, remains a
staple in prison management. The SHU is a modern-day embodiment of this traditional
form of punishment, which has received criticism for its emotional and mental impact
on prisoners. See generally Elizabeth Vasiliades, Solitary Confinement and
International Human Rights: Why the U.S. Prison System Fails Global Standards, 21
AM. U. INT’L L. REV. 71 (2005).
48
MUSHLIN, supra note 42, at 10.
49
Id. at 9.
50
Id. at 10.
41
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discipline of prisoners.”51 Although the Court acknowledged
some claims of racial discrimination and unsafe prison
conditions as egregious, the hands-off doctrine prevented the
Court from addressing these claims.52 Because the Court
believes prison administrators are better suited to make prison
regulations, it avoided any judicial interference in prison
administrative decisions.53 Prison administrators have to deal
with inmates on a daily basis.54 Thus, there is a fear that
judicial review may threaten prison officials’ authority.55
Despite the doctrine’s pervasiveness, the mid-twentieth
century brought a change to the judiciary’s point of view. The
Court became increasingly concerned with protecting the rights
of “discrete and insular minorities,” which loosened its
adherence to the doctrine.56 It acknowledged the rights of
accused individuals and inmates, irrespective of the prison
walls.57 Stating that there is “no iron curtain” between the
Constitution and prisons, Justice White vocally ended the longheld belief that judicial intervention had no place in prison
administration.58 Thus, inmates have constitutional rights
which federal courts have a duty to protect whenever a prison
regulation “offends a fundamental constitutional guarantee.”59
51
Stroud v. Swope, 187 F.2d 850, 851-52 (9th Cir. 1951).
See Ex parte Pickens, 101 F. Supp. 285, 287, 290 (D. Alaska 1951).
53
Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
54
The Turner Court explicitly mentions this concern in articulating its
standard of review in prisoner rights cases. Turner v. Safley, 482 U.S. 78, 89 (1987)
(“Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny
analysis would hamper their ability to anticipate security problems and to adopt
innovative solutions to the intractable problems of prison administration.”).
55
MUSHLIN, supra note 42, at 11-12.
56
The Court’s review of police and prosecutorial treatment of accused
individuals surged in the 1960s. Lorijean Golichowski Oei, The New Standard of
Review for Prisoners’ Rights: A “Turner” for the Worse?: Turner v. Safley, 33 VILL. L.
REV. 393, 399-401 (1988). For example, the Court deemed a confession inadmissible
after the accused requested, but was denied, the assistance of counsel in Escobedo v.
Illinois, 378 U.S. 478, 478 (1964), and found inadmissible the results of a search
violating the Fourth Amendment in Mapp v. Ohio, 367 U.S. 643, 655 (1961).
57
See Oei, supra note 56, at 399-403.
58
Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974). (“[A] prisoner is not
wholly stripped of constitutional protections when he is imprisoned for crime. There is
no iron curtain drawn between the Constitution and the prisons of this country.”).
59
Procunier v. Martinez, 416 U.S. 396, 405-06 (1974), overruled by
Thornburgh v. Abbott, 490 U.S. 401 (1989).
52
2008]
819
III.
THE SUPREME COURT’S STANDARD: TURNER V. SAFLEY
A.
The Road to Turner
The Court’s attempt to lift the iron curtain, however,
may be best described as a mere parting. Because prison
administrators determine both the goals of a prison and the
means by which to obtain them,60 the Supreme Court accords
“substantial deference to [their] professional judgment.”61
Moreover, a prisoner bears the burden of disproving a
regulation’s validity.62 Restrictions on First Amendment rights
are permitted, so long as they are reasonably related to a
legitimate penological interest.63 In particular, the Court gives
substantial deference to prison administrators if there is the
potential for a security problem.64 Thus, an inmate faces an
uphill battle in challenging the constitutionality of a prison
regulation.65 Nevertheless, its own acknowledgment of the
accused’s rights and the growing recognition of inmates’ rights
prompted the Court to guide the lower courts by articulating a
test for constitutional challenges to prison regulations.66
60
Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
Id.
62
Id.
63
Turner v. Safley, 482 U.S. 78, 89 (1987). Lower courts had established
their own standards. In Carothers v. Follette, an inmate sought to prevent prison
officials from censoring correspondence to his parents, judges and attorney. 314 F.
Supp. 1014, 1017 (S.D.N.Y. 1970). In holding that prison officials violated the inmate’s
right of expression, the court stated that “[c]ertain restrictions on expression to
[outsiders]” were acceptable, including restrictions that prevent a legitimate business.
Id. at 1024 (citing Stroud v. Swope, 187 F.2d 850, 850 (9th Cir. 1951) (denying a
prisoner’s petition to bar prison administrators from interfering in his business
dealings)). According to the court, a restriction on freedom of expression must be
“related both reasonably and necessarily to the advancement of some justifiable
purpose of imprisonment.” Id. (citations omitted). A restriction is acceptable if prison
officials show it is reasonably and necessarily related to either prisoner rehabilitation
or to maintain prison security. Id.
64
WILLIAM C. COLLINS, SUPERMAX PRISONS AND THE CONSTITUTION:
LIABILITY CONCERNS IN THE EXTENDED CONTROL UNIT 72 (2004), available at
http://www.nicic.org/pubs/2004/019835.pdf. A court will defer to prison officials even if
the absence of a regulation presents only the possibility of a security problem. Id. (“[I]f
an official says that lack of a particular restriction ‘might’ create a security problem, a
court will generally defer to that judgment and uphold the challenged restriction under
the Turner test.”). For a discussion on Turner v. Safley and its four-factor test, see infra
Part III.B.
65
An inmate faces not only substantial judicial deference, but must disprove
a regulation’s validity. Bazzetta, 539 U.S. at 132.
66
Various tests existed at both the state and federal levels to determine
when a prison regulation infringed on prisoners’ rights. Many circuits used a strict
scrutiny standard of review, requiring the state to bring forth a substantial
government interest furthered by the rule and only a minimal imposition on First
61
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1. The Outsider’s Rights
Initially, the Supreme Court avoided delineating a
prisoner’s First Amendment rights.67 The Court first held that
the First Amendment limited a prison regulation’s scope in
Procunier v. Martinez.68 Nevertheless, it failed to define a
prisoner’s free speech rights.69 Instead, the Court focused on
the rights of free citizens as opposed to those of prisoners.70 In
Martinez, California prison regulations permitted the mailroom
staff to inspect prisoners’ correspondence.71 Particularly, the
staff became watchful of any correspondence that complained
about the prison, expressed “inflammatory” views, or was
“otherwise inappropriate.”72 Whether a correspondence was
inflammatory or inappropriate was for the staff to determine.73
Although the Martinez Court found the regulation
unconstitutional, its decision focused on the rights of the
recipient.74 It set a two-part standard of review for regulations
that violated the First Amendment rights of outsiders: the
regulation cannot be over-inclusive and it must serve a specific
state interest.75 Because the sender and recipient had an
Amendment rights. See Oei, supra note 56, at 414 n.97. The more relaxed rational
standard of review prevailed in other circuits. See, e.g., Sostre v. McGinnis, 334 F.2d
906, 911 (2d Cir. 1964) (holding that deference to prison administrators prevails when
they are addressing a real danger in the prison). To highlight the confusion among the
lower courts, the same circuit often applied different tests in reviewing the regulation.
The Seventh Circuit, for example, applied the lowest level of review in Morales v.
Schmidt, where it called on the state to proffer a rational relationship between the rule
and the goal. 489 F.2d 1335, 1342-43 (7th Cir. 1973); see also Oei, supra note 56, at 415
n.98. Fourteen years later, however, it used a strict scrutiny standard in Rios v. Lane,
calling for the state to present an important government interest that imposed
incidentally on a prisoner’s First Amendment right. 812 F.2d 1032, 1036-37 (7th Cir.
1987); see also Oei, supra note 56, at 414 n.97.
67
Oei, supra note 56, at 404-05. The Martinez Court acknowledged the lower
court’s confusion as to the standard of review, but nevertheless failed to provide
guidance. Procunier v. Martinez, 416 U.S. 396, 406-08 (1974), overruled by Thornburgh
v. Abbott, 490 U.S. 401 (1989); see also Oei, supra note 56, at 404 nn.48, 50.
68
416 U.S. at 406.
69
See MUSHLIN, supra note 42, at 593-94.
70
Martinez, 416 U.S. at 408 (discussing how mail censorship implicates the
First Amendment rights of the non-inmates who correspond with the inmates).
71
Id. at 399-400 (footnote omitted).
72
Id.
73
Id. at 400. The rule stated that a prisoner’s personal correspondence was “a
privilege, not a right.” Id. at 399 n.1 (citing Director’s Rule 2401). Under the rule,
violation of the mail rules might “cause suspension of the mail privileges.” Id.
74
Id. at 408-09.
75
Id. at 413. The regulation had to further an important “governmental
interest unrelated to the suppression of expression,” and the limits to free speech “must
be no greater than is necessary” to protect that governmental interest. Id.
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interest in the correspondence, the censorship violated the
rights of both.76 Regardless of the prisoner’s First Amendment
rights, the regulation burdened the First Amendment interests
of those outside the prison.77 By focusing on the outsider’s point
of view, the Martinez Court averted delineating prisoners’ First
Amendment rights.78
2. Alternative Means of Communication
The Court shifted its focus from the outsider to an
alternative means of communication only two months later. In
Pell v. Procunier, a California regulation barred the media from
interviewing certain inmates in person.79 Unlike Martinez, the
Court did not focus on the outsider’s First Amendment rights.
Instead, it centered on the prison’s goal in enacting the rule
and the deference given to prison administrators.80 Prison
administrators
argued
that
alternative
means
of
communication were available to prisoners.81 The prisoners in
this case could communicate with outsiders, including media
representatives, by writing to them.82 The Court concluded that
a regulation fell within the ambit of prison administrators’
discretion if a “reasonable and effective means of
76
Id. at 409. The Martinez Court noted the “array of disparate” standards for
reviewing prison regulations that restricted freedom of speech. Id. at 406-07; see also
supra note 66 and accompanying text. This uncertainty not only made it difficult for
prison officials to determine the appropriateness of their actions, but needlessly
“perpetuate[d] the involvement of the federal courts in affairs of prison
administration.” Martinez, 416 U.S. at 407. The Court possibly decided Martinez on the
narrower issue of the outsider’s First Amendment right to avoid a flurry of free speech
violation claims by prisoners. See MUSHLIN, supra note 42, at 12.
77
Martinez, 416 U.S. at 409.
78
Oei, supra note 56, at 406. The Court would later narrow Martinez in light
of Turner: In Thornburgh v. Abbott, prisoners challenged Federal Bureau of Prisons
(“FBP”) rules which gave wardens the authority to reject publications they considered
detrimental to the prison’s security. 490 U.S. 401, 403 (1989). The Court of Appeals
applied Martinez instead of Turner because the regulation restricted the free speech
rights of publishers. Abbott v. Messe, 824 F.2d 1166, 1168-70 (D.C. Cir. 1987); see
Turner, 482 U.S. at 89 (setting a rational relation standard of review for regulations
that restrict a prisoner’s free speech right); see also infra Part III.B. The Supreme
Court reversed, holding that a strict scrutiny standard of review did not give “sufficient
sensitivity” to prison officials’ discretion. Thornburgh, 490 U.S. at 409-10. Moreover,
unlike Martinez, the regulation in Thornbourgh dealt with incoming, as opposed to
outgoing, correspondence. Id. at 412.
79
Pell v. Procunier, 417 U.S. 817, 820-21 (1974).
80
Id. at 827.
81
Id. at 823-24.
82
Id. at 824.
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communication remain[ed] open” to prisoners83 and there was
no discrimination as to the content involved.84
3. Security Concerns and the Exaggerated Response
Another justification for judicial deference centered on
security concerns and whether the regulation amounted to an
exaggerated prison administrative response.85 The Court has
been particularly deferential where the prisoner is a recipient.
In Wolff v. McDonnell, a prisoner challenged a prison
regulation that permitted the inspection of mail sent by his
attorney.86 Prison administrators, however, expressed concern
over contraband secretly making its way to prisoners.87
Although First Amendment rights may protect an outsider
against “censoring of inmate mail,” it did not necessarily
protect the inmate.88 The Court cannot confine prison
regulations to “constitutional straightjacket[s],”89 but must
consider a prison’s rehabilitative goals and prison security.90 As
it did in the past, the Court’s analysis required deference to the
regulation.91 The regulation did not abridge the prisoner’s
rights because prison officials were merely opening, not
reading, the correspondence.92 Additionally, prison officials
were doing so in front of the prisoner.93 Moreover, prison
83
Id. at 824-25.
Id. at 826.
85
Jones v. N.C. Prisoners’ Lab. Union, Inc., 433 U.S. 119, 127-28 (1977);
Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974).
86
McDonnell, 418 U.S. at 575.
87
Id. at 577.
88
Id. at 575-76. Under Martinez, the outsider’s First Amendment rights are
protected from censorship, unless there is a legitimate government interest. Procunier
v. Martinez, 416 U.S. 396, 412-13 (1974), overruled by Thornburgh v. Abbott, 490 U.S.
401 (1989). The McDonnell Court, however, refused to specifically recognize the
prisoner’s right. McDonnell, 418 U.S. at 575-76. Instead, it focused on the regulation,
thus avoiding a delineation of prisoners’ First Amendment rights in this context. Id.
(“We need not decide, however, which, if any, of the asserted rights are operative here,
for the question is whether, assuming some constitutional right is implicated, it is
infringed by the procedure now found acceptable by the State.”).
89
McDonnell, 418 U.S. at 563.
90
Id. at 561-63.
91
Id. at 568. Under the challenged prison regulation, prison officials could
inspect “all incoming and outgoing mail” including mail from prisoners’ attorneys. Id.
at 574. The Court, however, found that prison officials had “done all, and perhaps even
more, than the Constitution requires” by opening marked attorney mail in front of the
inmate. Id. at 576-77 (“[F]reedom from censorship is not equivalent to freedom from
inspection or perusal.”).
92
Id. at 577.
93
Id. at 576-77.
84
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officials had a valid security concern that contraband would be
smuggled
to
prisoners,
even
in
prisoner-attorney
94
correspondence.
Security concerns also contributed to the Court’s
deference in Bell v. Wolfish.95 Prisoners brought a First
Amendment challenge to a regulation that only allowed
inmates to receive hard-cover books if they were sent directly
from a publisher, book store, or book club.96 As it did in
McDonnell, prison administrators pointed to the concern over
concealed contraband, this time hidden in books.97 The Court
again applied a rational relationship standard of review and
found no First Amendment violation.98 The regulation only
imposed a limitation on an inmates’ receipt of reading
materials, a limitation which was rationally related to the
government’s goals.99
Prison administrators also raised security concerns
when prisoners challenged an anti-union regulation. The Court
again emphasized its deference in Jones v. North Carolina
Prisoners’ Labor Union, Inc.100 Prisoners challenged the
regulation as violating their First and Fourteenth Amendment
rights.101 Prison administrators expressed concern over the
tension likely to emerge between the unionized prisoners and
prison staff.102 Prison administrators claimed that this tension,
coupled with the tension likely to arise between unionized and
non-unionized prisoners, would result in prison riots and
94
Id. at 577. The district court allowed prison officials to open incoming
attorney-inmate correspondence if there was a likelihood of contraband presence. Id. at
574. Prison officials had to open mail marked “privileged” in front of the inmate. Id.
The Court of Appeals further restricted prison officials’ ability to open “privileged” mail
by implying that any doubt as to whether the mail came from an attorney could be
resolved via “a simple telephone call.” Id. at 574-75. The Supreme Court, however,
considered checking every single piece of attorney correspondence an administrative
impossibility. Id. at 576.
95
441 U.S. 520 (1979).
96
United States ex rel. Wolfish v. United States, 428 F. Supp. 333, 340
(S.D.N.Y. 1977), overruled by Bell, 441 U.S. 520 (1979).
97
Bell, 441 U.S. at 549. They also claimed an interest in avoiding the
administrative cost of conducting more thorough book inspections. Id.
98
Id. at 550-51.
99
Oei, supra note 56, at 412 (footnote omitted). Not only was the regulation
content-neutral, but prisoners could still receive other reading material from any
source, including soft-cover books and magazines. Bell, 441 U.S. at 551-52. This
alternative means supported prison officials’ argument that the regulation was not
overly broad. See id. at 550-51.
100
433 U.S. 119 (1977).
101
Id. at 122.
102
Id. at 127.
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chaos.103 The Court considered these security concerns
legitimate government interests rationally related to the union
ban.104 Unless rules constitute an exaggerated response, courts
should give deference to prison administrators’ expertise.105
B.
The Supreme Court Solidifies Its Deferential Stance
Thirteen years after tip-toeing around prisoners’ First
Amendment rights in Martinez,106 the Court solidified its
deferential stance in prison regulation challenges. In Turner v.
Safley, the Court laid out the four factors courts should use to
determine the constitutionality of a prison regulation.107 In
Turner, prisoners challenged two Missouri prison rules as
violating their First and Fourteenth Amendment rights.108 The
first prevented inmate-to-inmate correspondence.109 The second
regulation prevented inmates from marrying without the
superintendent’s approval.110 After setting out and applying its
new standard, the Court upheld the first but struck down the
second as unconstitutional.111
Although “prison walls [may] not form a barrier
separating inmates” from Constitutional protections,112 the
Court did not apply the Martinez test because Martinez did not
“resolve the question that it framed.”113 In cases involving only
103
Jones, 433 U.S. at 127.
Id. at 129.
105
Id. at 128.
106
107
Turner v. Safley, 482 U.S. 78, 89-91 (1987).
108
Id. at 85.
109
Id. An inmate could only correspond with an inmate in another prison if
that inmate was an immediate family member. Id. The rule also allowed an inmate to
correspond with another “concerning legal matters.” Id. Otherwise, an inmate could
only correspond with another if a team of experts determined it was in his best
interest. Id. at 82 (“[T]he determination whether to permit inmates to correspond was
based on [the treatment] team members’ familiarity with the progress reports . . . .”).
110
Id. Only a “compelling” justification warranted the superintendent’s
approval of an inmate’s marriage. Id. Though the regulation did not define
“compelling,” prison officials testified that it generally meant pregnancy or the birth of
a child. Id.
111
Id. at 99-100.
112
Id. at 84.
113
Turner, 482 U.S. at 85; see Procunier v. Martinez, 416 U.S. 396, 413 (1974),
overruled by Thornburgh v. Abbott, 490 U.S. 401 (1989). The regulation must “further
an important or substantial governmental interest unrelated to the suppression of
expression.” Id. Prison officials must show that the regulation furthers the
government’s interest in prison “security, order, and rehabilitation.” Id. The restriction
cannot be “unnecessarily broad.” Id. at 414. Rather, it must be “no greater than is
necessary or essential to the protection” of the cited interest. Id. at 413.
104
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prisoners’ rights, the “inflexible strict scrutiny analysis” in
Martinez would impede prison administrators’ ability to take
proactive steps that prevent security problems.114 Moreover,
adopting the standard in cases concerning only prisoners’
rights would make courts “the primary arbiters of what [is] the
best solution” to an issue specifically within prison
administrators’ domain.115 Without the experience in planning
or financial resources necessary to operate a prison, courts
should defer to prison administrators.116 This is further
buttressed when acknowledging prison administration’s role as
an arm of the legislative and executive branches.117
1. The Turner Factors
Given prison administrators’ expertise, the Court
adopted a reasonable relationship standard of review.118 Four
factors determine the reasonableness of a prison regulation
that restricts inmates’ First Amendment rights.119 A court must
consider (1) if the regulation has a “valid, rational connection”
to a legitimate government interest;120 (2) if the prisoner can
exercise the particular right via other available means; (3) the
impact on guards, inmates, and other resources that an
accommodation of the right would have; and (4) whether prison
administrators can accomplish their goals via “ready
alternatives” that do not impose on the prisoner’s rights.121 The
“ready alternative” must not only accommodate an inmate’s
114
Turner, 482 U.S. at 89.
Id.
116
Id. at 84-85.
117
Id. Separation of powers, according to the Court, warranted a “policy of
judicial restraint.” Id. at 85. Moreover, there are inherent federalism concerns when
federal courts dictate state prisoners’ rights. Id. at 84-85 (Prison management
“requires expertise, planning, and the commitment of resources, all of which are
peculiarly within the province of the legislative and executive branches of
government.”); see also MUSHLIN, supra note 42, at 595-96.
118
Turner, 482 U.S. at 89 (“If Pell, Jones, and Bell have not already resolved
the question posed in Martinez, we resolve it now: when a prison regulation impinges
on inmates’ constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.”).
119
Id. at 89-91.
120
Id. at 89 (citing Block v. Rutherford, 468 U.S. 576, 586 (1984)).
121
Id. at 90-91. Prison administrators, however, need not “set up and then
shoot down” all possible alternative methods of accommodating a prisoner’s right.
Nevertheless, if the prisoner can show that an existing alternative accommodates his
right without hampering the valid penological interest, a court may consider the
existence of such an alternative as evidence that the regulation is an “exaggerated
response” to the prison’s concerns. Id.
115
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right, but must also be obvious and bear only a de minimis
impact on the penological goal.122
The Court applied each of the factors to the two rules
and found that the prohibition on inmate-to-inmate mail was
constitutional.123 According to prison officials, by restricting
prisoners’ communication with each other, the regulation
limited the potential for the formation of escape plans and gang
communication.124 Given the presence of prison gangs, the
prohibition on inmate-to-inmate correspondence was “logically
connected” to prison administrators’ concern that the
correspondence would result in “a potential spur [of] criminal
behavior.”125 Moreover, the second factor was satisfied because
the regulation only limited the “class of other people” with
whom the prisoner could communicate.126 According to the
Court, this is a valid security concern because the class
includes other Missouri prison inmates.127 Thus, the regulation
was not a full-fledged deprivation of prisoners’ means of
expression.128
122
Id. at 90-91.
Id. at 91. According to the Court, the record indicated a reasonable
relationship between the regulation and the legitimate security concern of preventing
prison violence. Id. The Court also acknowledged that the more demanding Martinez
test may apply to the marriage rule, since the rights of a civilian—an outsider—may be
affected. Id. at 96-97. However, because the rule “swe[pt] much more broadly” than
necessary, it was not “reasonably related” to the prison’s security and rehabilitation
goals. Id. at 98. Prison administrators argued that the rule prevented the security
threat posed by “love triangles.” Id. They ignored, however, that love triangles could
exist regardless of a prisoner’s marital status. Id. (“[S]urely in prisons housing both
male and female prisoners, inmate rivalries are as likely to develop without a formal
marriage ceremony as with one.”). Moreover, the prison had an obvious, low-cost
alternative in the FBP regulations, which allow prisoners to marry so long as the
warden does not deem the marriage a security threat. Id.; see also 3 MICHAEL B.
MUSHLIN, RIGHTS OF PRISONERS 30-37 (3d ed. 2002) (discussing marriage rights in
prison).
124
Turner, 482 U.S. at 91. Prison administrators believed that if inmates
corresponded with those of other institutions, they might orchestrate escape plans and
assaults. Id. Moreover, the regulation, coupled with placing gang members in different
institutions, limited prison gang activity. Id.
125
Id. at 91-92. The Court noted that even federal law conditions federal
parole on “nonassociation with known criminals.” Id. at 92; see 28 C.F.R.
§ 2.204(a)(5)(v) (1987) (“The releasee shall not associate with a person who has a
criminal record without permission from the supervision officer.”). A ban on “this sort
of contact” within the prison is therefore logical. Turner, 482 U.S. at 91.
126
127
Id.
128
Id. Not only did the restriction apply to the class of individuals with whom
inmates could communicate, but it was also the state’s policy of separating gang
members in order to control gang activity. Id.
123
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Likewise, the third factor weighed in favor of
deference.129 Its focus is on the accommodation’s impact on the
prison, its resources, guards, and other inmates.130 An
accommodation of the prisoners’ asserted right here threatened
“the core functions of prison administration, maintaining safety
and internal security” by making it easier for prisoners to
organize informally.131 The result of striking the regulation
would likely create a detrimental “ripple effect” that
jeopardized the liberty and safety of prisoners and guards at
multiple prisons.132 In light of this tradeoff, the Court refused to
disregard the prison administrators’ decision, particularly
given the expertise required to make such decisions.133
As to the fourth factor, the Court found no clear
alternative that could serve prison administrators’ interests
without restricting prisoners’ free speech right.134 Inmates
contended that prison administrators had the option of
monitoring inmate-to-inmate mail.135 This alternative, however,
required more than “a de minimis cost on the [prison
administrator’s] pursuit of legitimate corrections goals.”136
Requiring staff to inspect each correspondence, coupled with
the possibility of inmate-to-inmate communication via “jargon
or codes,” was an inadequate alternative to simply banning
inmate-to-inmate correspondence altogether.137 The Court
found the regulation content-neutral, “reasonably related to
129
Id.
Id. at 90-91.
131
Id. at 92. Prison administrators expressed similar organizational concerns
over prison unions in Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119
(1977); see supra Part III.A.3. Here, the Court finds the concern to be even greater than
in Prisoners’ Labor Union, since accommodating the right would impact the security
concerns of more than one prison. Turner, 482 U.S. at 92.
132
133
Id. at 92-94 (“Where exercise of a right requires this kind of tradeoff, we
think that the choice made by corrections officials—which is, after all, a judgment
‘peculiarly within [their] province and professional expertise’—should not be lightly set
aside by the courts.” (emphasis added) (citation omitted) (citing Pell v. Procunier, 417
U.S. 817, 827 (1974)).
134
Id. at 93. The Court turned to the FBP for guidance. Id. The FBP, however,
similarly restricted inmate-to-inmate correspondence to “protect institutional order
and security.” Id.; see 28 C.F.R. § 540.17 (1986).
135
Turner, 482 U.S. at 93. The proffered alternative echoed that which the
Court rejected in McDonnell. Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974) (“If
prison officials had to check in each case whether a communication was from an
attorney before opening it for inspection, a near impossible task of administration
would be imposed.”).
136
137
Id. (noting that gang members in federal prison often use codes to
communicate in their correspondence).
130
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[the] valid [penological] goals” of security and safety and not
“an exaggerated response” to those objectives.138 Thus, the
regulation did not unconstitutionally restrict inmates’ free
expression right.
2. An Analysis of the Turner Factors
The Turner Court clearly enunciated its deference to
prison administrators’ regulations. The Court, however, gave
little guidance on how to apply the Turner test.139 The first
factor calls for a rational connection between the prison rule
and the legitimate government interest it is said to further.140
The lack of a connection or a weak link weighs in favor of
striking the regulation.141 While there are some exceptions,142 it
is arguably an easy factor for prison officials to meet.143 The
government’s interests in rehabilitating prisoners, prison
security, and even budgetary concerns present an array of
reasons for satisfying this factor.144
The application of the second factor is vague. When
considering a regulation’s validity, a court must consider the
“judicial deference owed to [prison] officials” if inmates can
138
Id.
140
Turner, 482 U.S. at 89 (citing Block v. Rutherford, 468 U.S. 576, 586
(1984)); see MUSHLIN, supra note 42, at 36. Unlike Martinez, prison officials did not
have to show that the regulation served a substantial government interest. Instead,
Turner lowered the burden for prison officials. They only needed to show a reasonable
relationship between the regulation and the asserted penological interest. MUSHLIN,
supra note 42, at 598-99.
141
Turner, 482 U.S. at 89-90 (“[A] regulation cannot be sustained where the
logical connection between the regulation and the asserted goal is so remote as to
render the policy arbitrary or irrational.”).
142
Aiello v. Litscher, 104 F. Supp. 2d 1068, 1072 (W.D. Wis. 2000). A state
regulation barred prisoners’ access to sexually explicit material. Prison administrators
pointed to security maintenance, rehabilitation and sexual harassment prevention as
“legitimate correctional goals” tied to the regulation. Id. at 1073, 1079. The rule,
however, was so broad that one could reasonably find the absence of a “rational
connection between the [goal] and the ban” without the need for scientific testimony or
common sense. Id. at 1080; see MUSHLIN, supra note 42, at 31.
143
See discussion on Beard v. Banks infra Part III.C.
144
See MUSHLIN, supra note 42, at 28-29; Powell v. Estelle, 959 F.2d 22, 25
(5th Cir. 1992) (finding that prison regulation barring long hair and facial hair was
rationally related to the legitimate government interest of preventing inmates from
hiding contraband and weapons in their hair and beards as well as prisoner
identification); Allen v. Cuomo, 100 F.3d 253, 261 (2d Cir. 1996) (upholding a fivedollar disciplinary surcharge imposed on prisoners who violated certain prison rules
because the government had a legitimate interest in deterring misconduct and raising
revenue).
139
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exercise their asserted right via other available avenues.145
There is uncertainty, however, as to the type of rights courts
should consider. A court need not seek an alternative to the
specific right, but may seek an alternative to the general
right.146 In Turner, the Court did not focus on whether
prisoners had alternative means of communicating with other
prisoners but rather on whether they “were deprived of ‘all
means of expression.’”147 Thus, a court may defer to prison
administrators even where no alternative to the specific right
exists.
The third factor focuses on the impact of accommodating
the prisoners’ rights.148 Courts should consider the effect on
guards, prison resources, and other inmates.149 If the
accommodation results in a “significant ‘ripple effect,’” courts
must give deference to the “informed discretion of corrections
officials.”150 Despite an analysis similar to the first factor—both
factors call for a “reasonableness analysis”—the third deals
with the rule’s reasonableness vis-à-vis the plaintiff’s proposed
alternative for operating the prison.151
Finally, the fourth factor considers whether the prison
regulation is actually an “exaggerated response” to prison
administrators’ concern.152 The plaintiff bears the burden of
suggesting an alternative.153 An inmate must show that an
obvious, easy alternative exists and that, therefore, the
regulation is an overreaction to prison administrators’
concern.154 A proposed alternative, however, faces rejection if it
145
Turner, 482 U.S. at 90 (quoting Pell v. Procunier,, 417 U.S. 817, 827
(1974)); see Jones v. N.C. Prisoners’ Lab. Union Inc., 433 U.S. 119, 131 (1977).
146
See O’Lone v. Estate of Shabazz, 482 U.S. 342, 351-52 (1987).
147
Id. at 352 (emphasis added) (quoting Turner, 482 U.S. at 92). Days after
deciding Turner, the Court addressed the constitutionality of prison policies that
prevented Muslim inmates from attending Jumu’ah, a weekly religious service. Id. at
345. Recalling Turner, the Court’s evaluation of the second factor focused on whether
inmates lacked all means of expression. Id. at 352. Although there was no alternative
to attending Jumu’ah specifically, Muslim inmates could still participate in other forms
of religious expression. Id.
148
Turner, 482 U.S at 90.
149
Id.
150
Id.
151
152
Turner, 482 U.S at 90; see e.g., Block v. Rutherford, 468 U.S. 576, 587
(1984) (rejecting the lower courts’ finding that disallowing contact visits for pre-trial
detainees was an excessive response to the security concerns involved).
153
Turner, 482 U.S. at 90-91 (“This is not a ‘least restrictive alternative’ test:
prison officials do not have to set up and then shoot down every conceivable alternative
method of accommodating the [inmate’s] constitutional complaint.”).
154
Id.; see also MUSHLIN, supra note 42, at 38.
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is likely to create a “ripple effect.”155 In other words, if “changes
to one area of prison administration” have negative
repercussions in another, the alternative is unlikely to
withstand judicial scrutiny.156
C.
Narrowing Turner to a Single Factor: Beard v. Banks
Although the Court discussed a multifactor test in
Turner, its subsequent application effectively condenses
Turner’s four factors into a single-factor test.157 While the Court
is unlikely to revert fully to the days of the hands-off
doctrine,158 deference to prison administration remains the lens
through which the Court analyzes a prison regulation. Such
deference offers a state legislature the opportunity to attain
goals via prison regulations that would otherwise remain out of
its reach because of unconstitutional skeins. The Court’s
language in subsequent cases indicates that unless the
connection between the challenged prison regulation and the
interest is invalid, the Court need not address the other Turner
factors.159 This is not a challenge for prison administrators to
meet. The state does not have the burden of proving a prison
regulation’s validity; rather, it is for the “prisoner to disprove
it.”160 As discussed in the following section, the Court’s
155
MUSHLIN, supra note 42 at 35-36.
157
The Court continued to apply Turner in reviewing prisoner challenges to
various First Amendment restrictions, including free association and exercise rights. In
Overton v. Bazzetta, inmates and their friends and family members brought a class
action against the Michigan Department of Corrections. 539 U.S. 126, 130 (2003). They
argued that prison regulations violated a prisoner’s First Amendment right to freedom
of association because they limited visitation from children and suspended visitation
privileges for substance-abuse violations. Id. at 131; see also Trevor N. McFadden,
When to Turn to Turner? The Supreme Court’s Schizophrenic Prison Jurisprudence, 22
J.L. & POL. 135, 144 (2006). In applying Turner, the Court refused to define the scope
of the right of association and held that each visitation restriction bore a rational
relationship to a legitimate penological interest. Bazzetta, 539 U.S. at 131-35 (“We need
not attempt to explore or define the asserted right of association at any length . . .
because the challenged regulations bear a rational relation to legitimate penological
interests. This suffices to sustain the regulation in question.”). The Court went on to
apply the remaining Turner factors, even though its language indicated it need not do
so. Id. at 135-36. The Court also applied Turner in upholding a prison regulation that
prevented Muslim inmates from attending a religious service. O’Lone v. Estate of
Shabazz, 482 U.S. 342, 350-53 (1987); see supra note 146 and accompanying text.
158
But see generally Owen J. Rarric, Kirsch v. Wisconsin Department of
Corrections: Will the Supreme Court Say “Hands Off” Again?, 35 AKRON L. REV. 305
(2002) (arguing that Turner’s deferential standard amounts to a modern-day hands-off
doctrine).
159
Beard v. Banks, 126 S. Ct. 2572, 2579-80 (2006).
160
Bazzetta, 539 U.S. at 132 (emphasis added).
156
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deference to prison administrators under Turner creates an
opportunity for a state to further a legislative goal by imposing
on a prisoner’s free speech right.161
Despite the Court’s analysis of each factor in Turner,
the Court’s language indicates that unless the connection
between the challenged regulation and the interest is invalid,
the Court will not address the other factors.162 Three years
later, the Court declared that analyzing and balancing each
Turner factor was unnecessary if the regulation was reasonably
connected to a legitimate penological interest.163 In Beard v.
Banks, the Department of Corrections implemented a policy
that banned inmates in the prison’s long-term segregation unit
(“LTSU”) from accessing newspapers, magazines and
photographs.164 The LTSU has two levels of segregation, but
only inmates in Level Two were denied access to newspapers,
magazines, and photographs.165 Level Two inmates, however,
still had access to “legal and personal correspondence, religious
and legal materials, two library books, and writing paper.”166 If
after 90 days an inmate’s behavior improved, he could move to
Level One, where he could receive one newspaper and five
magazines.167
The Banks Court addressed each Turner factor quickly
and, in the end, almost superfluously. Although the
Department offered several justifications for its regulation, the
Court zeroed in on one Turner factor. A single government
justification satisfied the Court: the need to motivate difficult
prisoners to behave better.168 The goal of eliciting better
behavior from difficult prisoners by providing an incentive
161
See discussion on Son-of-Sam law infra Part IV.
In Bazzetta, the Court analyzed the other Turner factors only after
concluding that the regulations satisfied the first factor. Bazzetta, 539 U.S. at 135.
Nevertheless, the analysis was unnecessary. According to the Court, the regulations
bore a rational relationship to legitimate interests, which was enough to sustain them.
Id. at 131-32. Hence, if the first factor is satisfied, there is no need to evaluate the
remaining Turner factors. Consequently, a regulation is unlikely to withstand Turner if
it fails to meet the first factor.
163
Banks, 126 S. Ct. at 2580 (stating that the second, third, and fourth Turner
factors’ connection to the prison’s goals “add little, one way or another, to the first
factor’s basic logical rationale.”).
164
Id. at 2576.
165
Id.
166
Id.
167
Id.
168
Id. at 2578.
162
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satisfied all the Turner requirements.169 Limiting the material
a LTSU inmate can possess was validly, rationally connected to
the penological goal of inducing inmates to behave better and
discouraging Level One inmates from “backsliding.”170
Therefore, the first factor weighed in favor of the
“reasonableness” of the prison regulation.171
In applying the remaining Turner factors, the Court
found that the regulation only limited a prisoner’s access to
alternatives.172 A prisoner is only able to access some magazines
and newspapers if his behavior merits movement to Level
One.173 Even if there is no ready alternative for Level Two
inmates, the absence only provides “evidence that the
regulations [a]re unreasonable”174—it is not dispositive.175
Moreover, accommodating the prisoner’s constitutional right
would “produce worse behavior,” thus negatively affecting
prison administration.176 Further, no readily available
alternative could accommodate the inmate’s constitutional
right without bearing more than a de minimis cost to prison
administrators.177
Despite the Court’s application of the Turner
requirements, it clearly stated that its deference to the
Department’s regulation lies not in the balancing of the
factors.178 The second, third and fourth factors “add little . . . to
the first factor’s basic logical rationale.”179 Rather, the “real
task in this case”180 laid in determining whether the
Department showed not just a logical, but “a reasonable
relation” between the regulation and the penological goal.181
169
Banks, 126 S. Ct. at 2578-79. Prison administrators offered three
justifications for the regulation: to motivate inmates to behave better; to minimize
inmate property; and to minimize the amount of material inmates can potentially use
as a weapon. Id. at 2579. According to the Court, “the first rationale itself satisfies
Turner’s requirements.” Id.
170
Id.
171
Id.
172
Id. at 2579-80.
173
Id. at 2579.
174
Id. at 2580 (citations omitted).
175
Id. (citations omitted).
176
Id.
177
Id.
178
Id.
179
Id.
180
Id. (emphasis added).
181
Id. (emphasis in original).
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Thus, in certain cases, satisfying the first Turner factor
warrants judicial deference to prison administrators.
IV.
A CASE IN POINT: CALIFORNIA’S SON-OF-SAM LAW
By deciding Banks on essentially one Turner factor, the
Court gives prison administrators and their regulations ample
opportunity to succeed in the courts. Such deferential
treatment allows states to accomplish otherwise unreachable
punitive goals. To illustrate, state laws that bar convicted
criminals from profiting from their crimes have faced
constitutional challenges.182 It is not unreasonable for a state to
prevent criminals from profiting from their crimes: not only
does this show respect for the victim, but it also sends the
message that crime truly doesn’t pay. These so-called Son-ofSam laws, however, have faced intense judicial scrutiny.183
Although the Court’s standard of review is higher when
reviewing Son-of-Sam laws, a prison regulation can accomplish
at least one goal of these laws without facing the same level of
judicial scrutiny. If a state goal is to bar criminals from
profiting from their crimes, a prison regulation that bars “any
business dealing” without the warden’s permission can reach
virtually every profit a criminal can make.184 Thus, a regulation
has the potential of unfairly imposing on a criminal’s right to
free expression, while also accomplishing the goal of another
state law. If challenged, such a regulation is likely to withstand
judicial scrutiny, even though a state’s Son-of-Sam law would
not.185
A.
Preventing the Profiting from Crime: Background of the
Son-of-Sam Laws
A state has a compelling interest in preventing
criminals from profiting from their crimes.186 Son-of-Sam laws,
182
See infra Part IV.A-C.
See infra Part IV.A-C.
184
Victim compensation was one of the New York legislature’s goals in
enacting the first Son-of-Sam law. Simon & Schuster v. N.Y. State Crime Victims Bd.,
502 U.S. 105, 108-09 (1991). Another goal was to prevent criminals from profiting from
their crimes. Id. Judicial deference to prison administrator’s business-dealings
regulation may not necessarily foster victims’ compensation (Johnson’s profits, for
example, are not redirected to his victims), but it nonetheless has the potential to
prevent a criminal from making any profit.
185
See infra Part IV.B-C.
186
Simon & Schuster, 502 U.S. at 118.
183
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named after the notorious New York serial killer, were enacted
to prevent a criminal from profiting from his or her crime.187
Nearly every state has or had a Son-of-Sam law on the books.188
Outraged by the possibility of a murderer profiting from his
crimes,189 the New York legislature passed the first Son-of-Sam
law.190 The law enabled the state to seize any profit a criminal
made from the sale of stories related to his or her crimes and to
place the profits in a fund for the crime victims.191 New York’s
Son-of-Sam law faced constitutional challenges in Simon &
Schuster v. New York State Crime Victims Board.192
B.
Simon & Schuster: Standard for Legitimate Curtailment
of Profits
Simon & Schuster highlighted the constitutional defects
of New York’s Son-of-Sam law.193 A mobster-turned-government
witness, Henry Hill, sold the story of his life in the mob to the
publisher Simon & Schuster.194 New York’s Crime Victim’s
Board determined that the book fell within New York’s Son-of-
187
The roots of Son-of-Sam laws lay in the media attention that followed the
crimes of David Berkowitz. Sam Roberts, Criminals, Authors, and Criminal Authors,
N.Y. TIMES, Mar. 22, 1987, § 7, at 1. Between 1976 and 1977, Berkowitz killed six and
injured seven people in New York City while sending letters to authorities and the
media under the pseudonym “Son of Sam.” Id.; see also Anemona Hartocollis, Court
Hears “Son of Sam” in Dispute over Personal Mementos, N.Y. TIMES, Jan. 31, 2006, at
B4.
188
189
Roberts, supra note 187, at 1.
190
N.Y. EXEC. LAW § 632-a(1) (McKinney 1982 & Supp. 1991) (amended by
N.Y. EXEC. LAW § 632-1(b) (McKinney Supp. 1993)). The law specifically stated that:
Every person, firm, corporation, partnership, association or other legal entity
contracting with any person or the representative . . . of any person, accused
or convicted of a crime in this state, with respect to the reenactment of such
crime . . . or from the expression of such accused or convicted person’s
thoughts, feelings, opinions or emotions regarding such crime, shall submit a
copy of such contract to the board and pay over to the board any moneys
which would otherwise, by terms of such contract, be owing to the person so
accused or convicted or his representative.
N.Y. EXEC. LAW § 632-a(1) (McKinney 1982).
191
N.Y. EXEC. LAW § 632-a (McKinney 1982 & Supp. 1991) (amended by N.Y.
EXEC. LAW § 632-1(b) (McKinney Supp. 1993)). (Because the original law applied to
convicted criminals, it had no effect on Berkowitz, who was adjudged incompetent to
stand trial. Nevertheless, he voluntarily gave the royalties he received from the book
Son of Sam to his victims. Simon & Schuster, 502 U.S. at 111.)
192
Simon & Schuster, 502 U.S. at 105.
193
Id.
194
Id. at 112.
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Sam law.195 The Victim’s Board ordered Hill to hand over the
profits made under the contract and ordered Simon & Schuster
to turn over any future moneys payable to Hill.196
The Supreme Court unanimously held that the statute
violated the First Amendment.197 Content-based restrictions,
which focus on the subject of the prisoner’s speech, are
presumptively unconstitutional.198 A financially burdensome
law based on the speaker’s speech content, as opposed to
speech generally, is “presumptively inconsistent with the First
Amendment.”199 Unless the statute was narrowly tailored to a
compelling governmental interest, it violated the First
Amendment.200 Although the state had a compelling interest in
victim compensation, particularly “from the fruits of [a] crime,”
New York’s Son-of-Sam Law was not narrowly tailored to meet
that goal.201 The statute specifically targeted the content of
speech—the author’s crime—imposing a financial burden it did
not impose on other types of speech.202 The Court found the
statute overly inclusive in two ways: (1) the subject of the work
is irrelevant, so long as there is a mention, even in passing, of
the author’s crimes; and (2) convictions were irrelevant.203
195
Id. at 114.
Id. at 114-15.
197
Id. at 123.
198
Id. at 115. Generally, the extent of the First Amendment’s protection turns
on whether a restriction is content-based or content-neutral. See FARBER, supra note
22, at 21; John B. Kopf III, Note, City of Erie v. Pap’s A.M.: Contorting Secondary
Effects and Diluting Intermediate Scrutiny to Ban Nude Dancing, 30 CAP. U. L. REV.
823, 826 (2002). A regulation is content-neutral if it “serves purposes unrelated to the
content of expression.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). A
content-based regulation considers the substance of expression, such as its topic. Kopf,
at 827. A content-neutral regulation, however, focuses on the “non-communicative
impact of expression.” Id. at 828. The Court reviews content-based speech legislation at
a higher standard, including content-based restrictions on inmates. Simon & Schuster,
502 U.S. at 115-18. For a review of the content-based and content-neutral distinction,
see generally Kopf, supra at 825-31.
199
Simon & Schuster, 502 U.S. at 115 (citing Leathers v. Medlock, 499 U.S.
439, 447 (1991)).
200
Id. at 118.
201
Id. at 120-21.
202
If an inmate profited from publishing a book on his crime, the regulation
reallocated those profits to the Victims’ Board. FARBER, supra note 22, at 24. It did not,
however, prevent the inmate from publishing books. Id. Thus, the regulation was
content-based because a “criminal could profit from writing a book on any subject
except for his crimes.” Id. at 24-25.
203
Simon & Schuster, 502 U.S. at 121. There was no distinction between an
accusation and a conviction—an author’s mere admission that he committed a crime
sufficed. Id. The Court mentioned, but did not address, the statute’s potential underinclusiveness. Id. at 122 n.1. A statute is under-inclusive when its reach becomes too
narrow to fully serve the state’s interest. Kathleen M. Timmons, Natural Born Writers:
196
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C.
California’s Son-of-Sam Law: An Unconstitutional
Anti-Profit Statute
Despite the constitutional challenges to New York’s law,
California’s Son-of-Sam law exhibited constitutional flaws
similar to New York’s.204 In Keenan v. Superior Court,205 Frank
Sinatra, Jr. sought compensation under California’s then Sonof-Sam law (Section 2225(b)(1) of the California Civil Code)206
after his kidnappers agreed to produce a story about the
kidnapping plot with the New Times Los Angeles.207 After
selling the story to Columbia Pictures, Sinatra demanded that
the studio withhold payment to the kidnappers and the New
Times Los Angeles.208
The court applied the Simon & Schuster analysis after
finding that Section 2225(b)(1) “impose[d] content-based
financial penalties on protected speech”209 similar to the defect
in the New York law.210 Like the New York law, Section
2225(b)(1) confiscated income “from all expressive materials,
The Law’s Continued Annoyance with Criminal Authors, 29 GA. L. REV. 1121, 1133
(1994). Son-of-Sam laws, it is argued, are under-inclusive because they only reach
profits made “from the publication of the criminal’s thoughts” and not his assets
overall; thus, they fail to serve the state’s goal of victim compensation. Kevin S. Reed,
Criminal Anti-Profit Statutes and the First Amendment: Simon & Schuster, Inc. v. New
York Crime Victims Board, 112 S. Ct. 501 (1991), 15 HARV. J.L. & PUB. POL’Y 1060,
1067 (1992). For an argument on the under- and over-inclusiveness of Son-of-Sam laws,
see Timmons, supra, at 1141.
204
Keenan v. Super. Ct. of L.A. County, 40 P.3d 718, 726 n.11 (Cal. 2002)
(“The New York law, like [California Son-of-Sam Law] Section 2225(b)(1), established
priorities of claims against the account, including the criminal’s valid claim for
expenses of legal representation. Unlike Section 2225(b)(1), the New York law allowed
general creditors of the criminal to reach the impounded funds, but provided that if no
claims against the account were pending at the end of the five-year period, remaining
funds in the account would be repaid to the criminal.” (citations omitted)).
205
Id. at 718.
206
CAL. CIV. CODE § 2225(b)(1) (West 2001) (“All proceeds from the
preparation for the purpose of sale, the sale of the rights to, or the sale of materials
that include or are based on the story of a felony for which a convicted felon was
convicted, shall be subject to an involuntary trust for the benefit of the beneficiaries set
forth in this section.”).
207
Keenan, 40 P.3d at 722-23. Barry Keenan, Joseph Amsler and John Irwin
conspired to and kidnapped Sinatra in 1963. Id. at 722. Sinatra was released after his
father, Frank Sinatra, paid a ransom. Id. Sinatra’s business and reputation took a hit
when his kidnappers told the media that he himself took part in the kidnapping plot,
although they later admitted this was false. Id. In 1998, the kidnappers agreed to
produce a story with the New Times Los Angeles. Id. at 722-23. They intended to sell
the story to print, broadcast, and film media. Columbia Pictures bought the rights to
the story entitled “Snatching Sinatra.” Id.
208
Id. at 723.
209
Id. at 725-26.
210
Id.
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whatever their general themes or subjects, that include
significant discussions of their creators’ past crimes.”211 In
finding California’s latest version of its Son-of-Sam law
unconstitutional, the Court held that the statute “penalize[d]
the content of speech to an extent far beyond that necessary to
transfer the fruits of crime from criminals to their
uncompensated victims.”212 The court specifically addressed an
inmate’s expressive activity, finding that the latest version of
the statute was over-inclusive.213 The Court’s deference to
prison administration regulations makes the constitutionality
of a Son-of-Sam law irrelevant. Regardless of the expression’s
relation to the crime, the Court’s deferential approach to prison
administrators’ regulations simultaneously accomplishes the
state’s goal of limiting an inmate’s profit-making.
V.
RETHINKING TURNER
A.
An Application of Turner
Assuming that Johnson did in fact engage in an
unauthorized business transaction,214 and that prison
administrators only barred him from mailing his postcards,215
211
Id. at 726.
Id. at 721.
213
Id. at 732. Although the court concluded that Section 2225(b)(1) was
unconstitutional, it did not address Section 2225(b)(2), the “notoriety value” provision
of the statute; the court specifically stated that it only addressed the “storytelling about
the crime,” and no other severable portions of the statute. Id. at 729 n.14.
212
California’s Son-of-Sam law has a feature New York’s did not; besides
confiscating a convicted felon’s income from telling his crime story, the
California statute, by amendments adopted after Simon & Schuster, also
confiscates profits earned by a convicted felon, or a profiteer, from the sale of
memorabilia, property, things, or rights for a value enhanced by their felonyrelated notoriety value. (section 2225(b)(2).) Thus, it cannot be said that
California’s law, read as a whole, burdens income from speech as distinct
from all other crime-related income. The Attorney General urges that this
distinction between the California and New York statutes means the
California law is not a content-based regulation of speech. We disagree.
California’s effort to reach the fruits of crime beyond those derived from
storytelling about the crime might bear on whether our statute is
unconstitutionally underinclusive, an issue we need not and do not decide.
Id. at 729, n.14.
214
All of the proceeds from the sale of Johnson’s art went to charity. Liptak,
Prison Disciplines Publicized Inmate, supra note 9; Curtis, supra note 6.
215
While prison administrators barred Johnson from mailing his postcards, it
is unclear if they disciplined Johnson in other ways, such as by barring him from
painting altogether. Liptak, Prison Disciplines Publicized Inmate, supra note 9 (“A
prison artist [Johnson] . . . has been disciplined for what a prison official yesterday
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the Turner factors are likely to pin the outcome of his case
before a court in favor of prison administrators. Following
Banks, a full balancing of the Turner factors is unnecessary.216
If prison administrators can deliver to the court a valid,
rational relationship between the regulation and a legitimate
penological interest, there is no need for a court to consider the
remaining Turner factors. Moreover, satisfactorily meeting the
first Turner factor may result in an additional victory for the
state—that of preventing another criminal from “profiting,” in
any way, because of his status as a criminal.
Turner’s first factor acts as a gatekeeper for a court’s
further analysis. The prison regulation must bear a valid,
rational relationship to a legitimate penological interest.217
Prison administrators have cited security and budgetary
concerns as legitimate interests for enacting a prison
regulation.218 These concerns provide viable arguments for
prison administrators in Johnson’s case. They may also cite
their interest in ensuring that inmates abide by prison
regulations. Making an exception in Johnson’s case would
encourage other inmates to engage in “unauthorized business
dealings” or to break other prison rules. Should these
arguments satisfy a court, there is no need for further inquiry:
the analysis stops here.219 Under Banks, so long as prison
administrators present a single justification logically related to
their rule, a court will defer to prison administrators.220
Moreover, analyzing the regulation under the remaining
Turner factors would likely yield the same result. An
application of the second factor demonstrates that Johnson is
in fact able to exercise his right to communicate artistically via
other means. Prison administrators can argue that, though
Johnson’s specific right to paint may be restricted, he can still
exercise his general right to free expression to the extent that
any prisoner can.221 The Pelican Bay Prison Project’s website
called ‘unauthorized business dealings’ in the sale of his paintings. The prison has also
barred [Johnson] from sending his paintings through the mail.” (emphasis added)).
216
See supra Part III.C for a discussion on Banks.
217
Turner v. Safley, 482 U.S. 78, 89 (1987); see supra Part III.B for a
discussion on this factor.
218
See supra Part III.A.2-3 for a discussion of the various concerns prison
administrators presented to the Court.
219
See supra Part III.C for a discussion on Banks.
220
Beard v. Banks, 126 S. Ct. 2572, 2580 (2006).
221
For an example of the specific/general right distinction, see supra note 146
and accompanying text.
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839
includes a section called “Donny’s Page,” in which Johnson’s
essays on various topics can be found.222 Johnson has also
written a book in which he describes his life in prison.223
Further, Johnson could have raised money for charity via the
Prison Art Project,224 a not-for-profit that supports the artistic
endeavors of California prisoners225 and returns part of the
donations to the inmate-artist.226
Additionally, a court may find that accommodating
Johnson’s right will negatively impact guards and inmates. If
Johnson goes unpunished, other inmates may consider it a sign
that prison administrators are either giving Johnson
preferential treatment or that prison administrators are
unlikely to discipline inmates if they violate a prison
regulation. Either outcome would lead to more prison
regulation violations, subordination of prison guard authority,
and a hindrance of prison guards’ ability to maintain prison
security. Thus, the accommodation’s potential effects are
sufficient for a court to side with prison administrators.
The problem lies in the potential likelihood of this result
under Turner. The regulation can potentially bar Johnson from
profiting from any exercise of expression, even if his artwork
exhibits no relation to his crimes. Despite the constitutional
invalidity of California’s Son-of-Sam laws and the challenges
that these laws have faced,227 Turner allows the state to prevent
an inmate from making a profit from any form of expression.
The result is contrary to one of the very purposes of
incarceration and, more importantly, to the First Amendment’s
right to free expression.
222
Pelican Bay Prison Project: Donny’s Page, http://www.pelicanbayprison
project.org/donny.htm (last visited Nov. 8, 2006). The webpage states Johnson will
write an essay monthly and includes links to his past essays. Id.
223
Johnson’s book, DONNY: LIFE OF A LIFER, can be ordered through his
website. Donny Johnson’s Website, http://members.tripod.com/donnyj_pelican/id22.htm
(last visited Sept. 10, 2007).
224
Prison Art Project—Prisoner Made Arts and Crafts for Sale,
http://www.prisonart.org/index.htm (last visited Sept. 10, 2007).
225
Prison Art Project: Prison Art—Donations, http://www.prisonart.org/
donate.html (last visited Sept. 10, 2007).
226
Ten percent of sales proceeds are allocated to maintaining the site. E-mail
from Ed Mead, Prison Art Project Director, to Melissa Rivero (Jan. 1, 2007, 18:23 EST)
(on file with author). They are then distributed to inmates, who can use the proceeds
for any reason, including supporting their families and purchasing art supplies. Id.
227
See Malecki, supra note 14, at 681-87.
840
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The Interests Turner Ignores
If the goals of the prison system are to both punish and
rehabilitate, Johnson’s right to exercise his First Amendment
right to expression serves both goals.228 First, Johnson’s
inability to mail his paintings impedes rehabilitation.229
Johnson has stated that proceeds from the sale of his artwork
will go to an educational fund for the children of other
inmates.230 Rehabilitation undoubtedly includes an inmate’s
beneficial contribution to society. Arguably, Johnson’s ability to
rehabilitate is already limited: he is confined in the SHU and is
unlikely to ever leave it. There is very little he can do to either
rehabilitate or contribute to society. Proceeds from his work
can help children of other inmates, who are already
disadvantaged by the absence of at least one parent.231
Johnson’s donations, therefore, may actually contribute to
crime prevention.
In terms of punishment, challenges as to the
constitutionality of confinement in the SHU illustrate the
severity of this form of punishment.232 Johnson’s crimes merit
some form of punishment and certainly many years of it. Aside
from the death penalty, however, confinement in the SHU is as
severe a punishment as can be imposed on a human being.233
His years in the SHU, and the many yet to come, serve a
prison’s punitive function. His status, however, as a criminal
should not deprive him of the very few rights he has left,
particularly if they benefit others.
Furthermore, by classifying sales of an inmate’s artistic
expression as business dealings, the state can accomplish at
least one goal that an imperfect law does not. Given the
relative ease with which prison officials can meet Turner, such
a regulation can withstand constitutional muster. The criminal
notoriety associated to Johnson’s art may result in a premium
228
See supra Part II for a discussion of rehabilitation.
Vasiliades, supra note 47, at 78-79. Vasiliades discusses the findings of
psychological studies conducted on inmates in Pelican Bay’s SHUs. According to the
studies, SHU inmates like Johnson suffer from extreme psychological trauma,
including irrational anger and suicidal thoughts. Id.
230
Liptak, Behind Bars, supra note 1.
231
See ELLIOT CURRIE, CRIME AND PUNISHMENT IN AMERICA 82-91 (1998)
(discussing various preventive measures for thwarting crime, particularly those
targeted to children of high-risk families, which include single-parent households).
232
See generally Vasiliades, supra note 47.
233
Id.
229
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841
for his artwork. As it is, many states, including California,
attempt to limit a criminal’s ability to profit from his crime via
Son-of-Sam laws.234 In Johnson’s case, the business dealing
regulation can prevent him from profiting from any form of
expression. While some may argue that Johnson merely needed
to ask the warden for permission before mailing his postcards
for exhibition, a warden can conceivably deny Johnson’s
request for any reason.235 Balancing these interests, however, is
not a task that should be undertaken via Turner alone.
1. Focusing on the Outsider: Revisiting Martinez
A court can consider revisiting Martinez to prevent
unwarranted judicial deference to prison administrators. Like
Martinez,
the
prison
regulation
involved
inmate
correspondence.236 Prison administrators disciplined Johnson
by barring him from mailing his postcards.237 As the Court
stated in Martinez, it is irrelevant that the outsider is the
“author or intended recipient” of a correspondence.238 The First
and Fourteenth Amendments protect both parties from
“unjustified governmental interference with the intended
communication.”239 Moreover, communication does not occur
when one “writ[es] words on paper,”240 but rather when it is
read.241
While the communication in Martinez—a letter—is
distinct from the artwork Johnson sent Kurtz, an argument
can nevertheless be made as to communication. A letter
effectively communicates when it is read, but a piece of art is
arguably communicated when it is viewed. By denying Kurtz
the opportunity to view a communication via artistic work, a
prison regulation may infringe, at the very least, on his
interest “in securing that result.”242 Moreover, if the value of
self-determination is one held by every individual, the
234
See supra note 13 (listing the federal and states’ anti-profit legislation).
Many prison administrations cited security as a reason for a particular
regulation. See supra Part III.A.2-3 (discussing the possible security concerns that may
justify a regulation).
236
Procunier v. Martinez, 416 U.S. 396, 398-99 (1974), overruled by
Thornburgh v. Abbott, 490 U.S. 401 (1989); see also supra Part III.A.1.
237
Liptak, Prison Disciplines Publicized Inmate, supra note 9.
238
Martinez, 416 U.S. at 408-09.
239
Id. at 409.
240
Id. at 408.
241
Id.
242
Id.
235
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regulation deprives outsiders of the right to receive Johnson’s
expression. Thus, society as a whole is deprived of what could
potentially be the work of a gifted artist.243
Prison administrators can argue that their choice for
disciplining Johnson is the most rational way to punish him for
violating the business-dealings regulation. By preventing
Johnson from mailing his paintings, prison administrators are
simply barring the means through which he engaged in the
unauthorized business transaction. The argument, however,
fails because it imposes unfairly on the rights of an outsider,
who is not subject to the same restrictions as an inmate.244
2. The Retaliation Factor: Abu-Jamal v. Price
Another view the Court can adopt in Johnson’s case is
that followed by the Third Circuit in Abu-Jamal v. Price.245 In
1982, a jury convicted Mumia Abu-Jamal for the murder of
Officer Danny Faulkner.246 Abu-Jamal worked as a journalist
before his murder conviction.247 National Public Radio (“NPR”)
interviewed him in 1994, and paid Abu-Jamal for the
interview.248 NPR intended to air segments of the interview as
prison-life commentaries.249 A police organization protested
Abu-Jamal’s ability to benefit from his crime.250 In response,
prison officials inspected Abu-Jamal’s mail and initiated an
investigation into whether he violated the prison’s business
rule.251 Abu-Jamal brought suit, claiming the regulation
violated his free speech rights.252
243
Through his studio manager, abstract artist Kenneth Noland
complimented Johnson not only for having talent, but for doing “wondrous things with
what he’s got.” Liptak, Behind Bars, supra note 1.
244
See supra Part III.A.1 (discussing the custodial relationship between the
state and the inmate).
245
Abu-Jamal v. Price, 154 F.3d 128 (3d Cir. 1998).
246
Steve Lopez, Wrong Guy, Good Cause, TIME, July 31, 2000, at 24. Officer
Faulkner made a traffic stop on William Cook, Abu-Jamal’s brother, when Abu-Jamal
encountered the two. He and Officer Faulkner traded gunfire. By the time police
arrived, Abu-Jamal had been shot in the chest. Officer Faulkner succumbed to his
injuries. Id. Abu-Jamal was convicted of murder and sentenced to death. Abu-Jamal,
154 F.3d at 130.
247
Abu-Jamal, 154 F.3d at 131.
248
Id.
249
Id.
250
Id.
251
Id.
252
Id. at 130.
2008]
843
In applying Turner, the Third Circuit found that prison
officials imposed the regulation in retaliation for the content of
his commentaries.253 Abu-Jamal demonstrated that the
business rule, as applied to him, was not reasonably related to
a legitimate government interest. Contrary to Turner, prison
officials imposed the rule based on the content of his writing.254
There was no indication that Abu-Jamal’s writing or
broadcasted commentaries “strained prison resources,”
negatively impacted other prisoners, or increased danger to
Abu-Jamal or others.255 Moreover, prison officials had an easy,
readily available alternative in merely applying the rule in a
content-neutral manner.256
Johnson bears strong similarities to Abu-Jamal.
Johnson’s activity is an exercise of expression under the First
Amendment.257 Prison officials puni

ARTICLES Crisis on the Immigration Bench

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