The old debate about what role creativity ought to play in public education often stumbles upon the basic question of what creativity is, and of whether it can be measured—or even defined—in a meaningful way.  Though there may be much to be said for the axiom that creativity can’t be quantified, at least three states have been working to develop something akin to an objective measure of imagination.  The efforts have been modest and are still in embryo, but they seem to constitute an emerging development in the ongoing effort to review the priorities of American public education.

Leading the way is Massachusetts, which since 2010 has had legislation calling for the development of a so-called “creativity index.”  The aim of the Massachusetts legislation is to develop an index capable of rating every public school in the state according to how effective it is at “teaching, encouraging and fostering creativity in students.”  In explaining how creativity is to be measured, the Massachusetts scheme emphasizes “inputs” rather than “outputs,” pointing out that:

 The index shall be based in part on the creative opportunities in each school as measured by the availability of classes and before-school and after-school programs . . . that provide creative opportunities for students including . . . arts education, debate clubs, science fairs, theatre performances, concerts, filmmaking and independent research.

Note, first, that the Massachusetts scheme leans towards an especially inclusive notion of creativity; the idea seems to be that any academic program that encourages non-systematic thought processes can be counted on to “foster” creativity.  Indeed, the Massachusetts legislation resists the temptation to equate creativity with the arts (however one defines them, after all, it would be odd to contend that the skills that constitute creativity can’t be developed through training in, say, pure math or the natural sciences).  Note also that, in describing the mechanisms by which creativity is supposed to be generated, the Massachusetts legislation emphasizes the role of scalable academic programs rather than of individual teachers.  The focus is less on training educators to imbue their students with modes of thought deemed imaginative, and more on exposing children to particular kinds of events or experiences.      

Massachusetts’ interest in weighing creativity has not gone unnoticed.  Last month, the California Senate approved a bill that calls for the establishment of a “Creative and Innovative Education Index.”  The language of the California bill is almost identical to that of the Massachusetts legislation, except that California’s measure points out that the state’s index is to be voluntary.  

Then there’s Oklahoma, whose governor announced in November her plan to partner with the private sector in order to create an “innovation index.”  Like those proposed in Massachusetts and California, Oklahoma’s index would operate by assessing the number of creativity-fostering programs available to the state’s public school students.  Again, the focus is on inputs, not outputs.

By the look of it, state-level efforts to develop indices of creativity have only just begun to get off the ground.  But it isn’t too early to begin asking whether and under what conditions such efforts can be expected to produce meaningful benefits.  At any rate, even at this initial stage, at least two potential problems present themselves.

First, insofar as human creativity is a sui generis phenomenon, one not amenable to replication, there may be something more than a little ironic about relying on systematic, scalable programs to develop creativity in young people.  If creative thinking is the sort that seeks alternatives to existing or well-defined modes of reasoning, it seems that, by definition, the programmatic is the enemy of the creative.  Why not also invest in efforts to identify and train teachers who seem most likely to be able to generate creative thought patterns in the children they teach?

Second, it’s worth noting that there’s a kind of tautology in the indices being mulled by Massachusetts, California, and Oklahoma: the states define creativity as the thing that results when students are given access to “creative opportunities.”  Perhaps the way to move forward would be by attempting to establish a clear definition of what kinds of mental capacities are supposed to constitute imagination.

In this inaugural episode, Senior Online Editor Noah Kaplan talks with Executive Online Editor Matt Giffin about the recent Supreme Court decision about GPS tracking units, United States v. Jones, and about the response to the proposed copyright protection legislation SOPA and PIPA.  Future episodes will feature similar discussion, in addition to guest experts.  If there is a topic you would like hear to on the show, feel free to let us know.  Thanks for downloading, and enjoy the show!

Episode 0 – CR-CL Podcast – Jones and Sopa

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Google has responded with a defense of its new policies as simplifying the user experience by consolidating the policies of its many products and by using the accumulated data to provide more relevant advertising and search results to its users. It also suggests some basic workarounds for users concerned about their privacy.

There are clear tradeoffs involved in the new privacy policy, but what does it suggest for the growing problem of data privacy more generally? Despite the seeming novelty of privacy problems in the age of the Internet, we can learn a few lessons by turning to privacy problems at the beginning of the information age. In 1964 the Bureau of the Budget and the National Archives jointly took over the creation of the proposed National Data Center, which would centralize the storage and processing of information across government agencies. Yet the inefficiencies in data processing that motivated this project also provided basic privacy protections for individuals. If the premise behind centralizing data was that it would reduce redundancies in data collection and provide a wider range of information to agencies, the premise behind the opposition was that information should only be available on an as-needed basis. Congressional opposition to the National Data Center was led by Rep. Cornelius Gallagher of New Jersey. By the end of 1967 the civil libertarians had killed off the data center. This victory created immediate problems for the privacy movement: instead of having one body in charge of creating standards for handling information, there were now many such standards. The protection that came from decentralization could not necessarily match the protections that could be created through good policy. (For more on the National Data Center, see Arthur R. Miller, The Assault on Privacy (Ann Arbor: University of Michigan Press, 1971).)

Google, of course, is not the state. The power to target advertisements is not the state’s police power, and those of us interested in privacy in the digital age do ourselves no favors by failing to acknowledge this. At the same time, the reassurances from Google that multiple accounts are sufficient to compartmentalize the presentation of our digital selves do not ring true. Our lives are not so easily compartmentalized, and for better or worse, the internet has become an integral part of contemporary life. In thinking about where privacy policies should be, we should hold as our ideal a notion of privacy that accords with our actual practices, not merely with the convenience of internet companies.

We are not wrong to demand greater control over the use of information gathered in bulk as we wander the web. Without denying the importance of Google as a platform for advertising (and I certainly don’t begrudge them their need to bring in revenue), or their interest in tailoring search results to be useful to us, these uses do not come close to fully describing the ways in which we have incorporated this technology into our lives. In much the same way, the hopelessly limited description of identity invoked by Mark Zuckerberg (on which, see Zadie Smith’s probing essay) points to a fundamental tension between Facebook’s mission as a company and its uses by an endlessly diverse population of users. Control of user data is not only about data owned by one tech company or another, but about the definition of the self on the internet. These websites are partly products within a marketplace, but their significance to their users extends much farther than that definition suggests. The legal regime for data protection should be designed accordingly.

The new Google privacy policy therefore creates the possibility of establishing greater public control over the use of user data on the internet, as well as the possibility of losing even more ground on privacy matters. Centralization raises the stakes of the debate. These days it does not seem promising to turn to the state to protect civil liberties. But if the problem is that data privacy policies have been left to the companies that use the data, we may have few alternatives. Unfortunately, Congress has given us little reason to hope that it will craft wise legislation to protect privacy. Until then, we can look forward to continuing the cycle of outrage over relaxed privacy policies, followed by assurances of good intentions on the part of internet companies, followed by our acceptance of the status quo.

[Update2 - 1PM February 8] The Fifth Circuit has ruled 2-1 to lift the stay of Turner’s execution, and Mississippi officials say that they plan to carry out the execution as originally scheduled this evening at 6PM.  Turner’s petition to the Supreme Court is still pending.

[Update - 7PM February 6] U.S. District Judge Carlton Reeves in Jackson, Mississippi has blocked Turner’s execution until at least February 20th.  The order is a response to the argument from the Louisiana Capital Assistance Center that Mississippi corrections officials have denied Mr. Turner access to mental health professionals to evaluate his mental illness.  The evaluations could be critical to the success of Mr. Turner’s petition to the Supreme Court, described in the original post below.

[Original - 4:30PM February 5] Barring action by the United States Supreme Court or the governor, Edwin Hart Turner will be executed by the state of Mississippi at 6 p.m. on Wednesday, February 8, 2012. Turner, represented by attorneys from the Louisiana Capital Assistance Center, has filed a petition for a writ of certiorari to the Supreme Court arguing that the pending execution would violate the Eighth Amendment’s prohibition on cruel and unusual punishments because at the time of his offense Mr. Turner “suffered from a serious mental illness that substantially impaired his ability (a) to appreciate the nature, consequences, or wrongfulness of his conduct, (b) to exercise rational judgment in relation to conduct; or (c) to conform his conduct to the requirements of the law.” Pet. at i. This formulation of the effect of mental illness on criminal culpability is taken directly from a resolution adopted by the American Bar Association recommending that defendants who suffer from the described effects of mental illness should not be eligible for capital punishment. Though the Supreme Court has not yet placed a categorical bar on the execution of the mentally ill, Mr. Turner can certainly draw hope from recent decisions by the Court placing such categorical bars on the execution of the mentally retarded and minors. The current members of the Court may be receptive to the argument made in Mr. Turner’s brief, and should they grant the petition, Mr. Turner’s case may lead to a decision demanding a more humane system for the imposition of capital punishment.

Mr. Turner’s great-grandmother was diagnosed as schizophrenic and committed to the state mental hospital three times. Pet. at n. 14. Her daughter was also committed to the hospital three times for schizophrenia, the third time for four years. Id. Edwin Turner, Mr. Turner’s father and namesake, committed suicide by firing a gun into a shed full of dynamite. Id. When he was eighteen years old, Mr. Turner attempted suicide by firing a rifle into his mouth, which left him with permanent and severe facial disfigurement. Pet. at 7. Since that time, Mr. Turner has worn a towel wrapped around his face to hide his disfigurement, which was true both when he committed the murders and when he appeared in court. Pet. at 8. After being hospitalized for slitting his wrists, Mr. Turner was readmitted to the hospital by court order and treated for a major depressive disorder and personality disorder. Pet. at 8-9. The first cert petition on behalf of Mr. Turner focused on the question of whether his trial lawyers missed evidence that Mr. Turner’s mental illness was not “well controlled” after his release from the hospital, as stated by the defense expert. 2011 Pet. at 4-5. Those close to Mr. Turner recall him staying up all night writing because “his mind was going too fast.” Though normally self-conscious, at one point shortly before the crimes he stripped off his clothes and danced in bar. Only a few days before the crimes he broke down sobbing uncontrollably, at various times saying both “I am not a bad person,” and “I am a bad person,” and then woke up the next morning with no memory of his actions. 2011 Pet. at 6.

Six weeks after his release from the court ordered hospitalization, on the night of December 12, 1995, Mr. Turner and his friend, Paul Murrell Stewart, decided to rob a local truck stop. Mr. Turner shot Eddie Brooks, an employee at the truck stop, in the chest and then in the head. The two men moved on to a gas station, where Stewart went inside to rob the store, and Mr. Turner remained outside and shot Everett Curry, pleading for his life, in the head. In addition to his “signature towel,” Mr. Turner committed the murders while wearing a jacket that said “Turner.” The robberies netted a total of about $400, money of which Mr. Turner was not in need. Stewart testified against Mr. Turner and received a life sentence, while Mr. Turner was convicted of two counts of capital murder and sentenced to death on each count. Stewart has written a letter to Mr. Turner about the night of the murders stating “I thought you went completely insane, and didn’t think you knew what you were doing!” 2011 Pet. at 7.

Mr. Turner’s argument to the Supreme Court is that “the death penalty is reserved for a narrow category of crimes and offenders,” and his execution would be a violation of the Eighth Amendment because his mental illness makes it inappropriate to classify him “among the worst offenders.” Roper v. Simmons, 543 U.S. 551, 569 (2005); see also Pet. at 17. In Roper, the Court placed a categorical prohibition on the execution of juvenile defendants. The Court in Roper quoted from Atkins v. Virginia, decided only three years earlier, to declare that “[c]apital punishment must be limited to those offenders. . .whose extreme culpability makes them ‘the most deserving of execution.’”Roper, 543 U.S. at 568 (quoting Atkins, 536 U.S. 304, 319 (2002)); see also Pet. at 17. The Court in Atkins had imposed a similar categorical prohibition on the execution of the mentally retarded. 536 U.S. at 321. Both Atkins and Roper pointed to the reduced personal culpability of the two classes of defendants, a trait, Mr. Turner’s attorneys argue, that is shared by the mentally ill as a result of “substantial impairment of cognitive processing or impulse control.” Pet. at 18. The petition additionally argues that given both this reduced culpability and reduced ability to act rationally based on available information, the execution of the mentally ill, like the execution of the mentally retarded or juveniles, fails to achieve either an appropriate retributive or deterrent effect. Pet. at 19; see also Atkins, 536 U.S. at 319; Roper, 543 U.S. at 571.

Given the close similarities between the reasoning the Court applied in Atkins and Roper, and the applicability of that reasoning to the mentally ill, Mr. Turner’s case could present an opportunity for the Court to expand on the types of mitigating characteristics that qualify defendants for a categorical exclusion from capital punishment. Atkins was a 6-3 decision, written by now retired Justice Stevens. Stevens’s opinion was joined in its entirety by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer. Justices Rehnquist, Scalia, and Thomas were in the minority, all three joining dissenting opinions by Rehnquist and Scalia. Roper was a 5-4 decision, with O’Connor joining the minority, though writing only for herself in dissent. Critically though, Justice Kennedy wrote the majority opinion in Roper overturning the Court’s contrary ruling in Stanford v. Kentucky, 492 U.S. 361 (1989). Justice Kennedy again wrote for the same majority in Panetti v. Quarterman, 551 U.S. 930 (2007) (Justices Roberts and Alito had replaced Justices Rehnquist and O’Connor in the minority). In Panetti, Kennedy begins by quoting Ford v. Wainwright, 477 U.S. 399, 409-10 (1986): “[T]he Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” 551 U.S. at 934 (alteration in original). Kennedy goes on to engage in what the dissent calls “bend[ing] over backward” to allow Panetti to proceed on a second habeas petition. Id. at 963 (Thomas, J., dissenting). Justice Kennedy concludes that Panetti was denied adequate procedures to determine his competency to be executed, id. at 952, and that the Fifth’s Circuit’s definition of incompetency was too restrictive to afford the proper Eighth Amendment protection, id. at 960.

The two Kennedy opinions point to the conclusion that the swing Justice is concerned about narrowing the conditions under which the death penalty can be imposed, and does not feel as constrained as the more conservative Justices by an overriding concern for constitutional federalism or the strict requirements laid down in the Anti-terrorism and Effective Death Penalty Act limiting the federal courts’ ability to review state capital sentences. If this is a valid conclusion from Kennedy’s prior opinions, Mr. Turner should have hope that the Court will be interested in hearing his case, and may in fact rule in his favor. Though the composition of the Court has changed since Atkins, Roper, and Panetti, there is likely still a five-Justice majority willing to be critical of the application of the death penalty in the face of mitigating circumstances. Since Panetti, majority Justices Stevens and Souter have been replaced by Obama appointees Sotomayor and Kagan. In 2011, the Court decided Cullen v. Pinholster, holding that AEDPA requires a federal court reviewing a habeas petition from a capital sentence to review only the record available to the state courts in making a determination of error. 131 S. Ct. 1388, 1398. Justices Kennedy and Kagan both joined this part of the majority opinion. Justice Sotomayor dissented.

The majority also held that on the record before the state courts, the defendant failed to show that the state courts had misapplied Strickland v Washington in holding that trial counsel’s failure to adequately pursue evidence of mental illness did not qualify as ineffective assistance of counsel. Id. at 1403. Though Justice Kennedy also joined this part of the majority opinion, Justice Kagan did not. Justices Kagan and Ginsburg joined the part of Justice Sotomayor’s dissent concluding, inter alia, that “[h]ad counsel conducted an adequate investigation, the judge and jury would have heard credible evidence showing that Pinholster’s criminal acts and aggressive tendencies were attributable to a disadvantaged background, or to emotional and mental problems. They would have learned that Pinholster had the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” Id. at 1432 (Sotomayor, J., dissenting) (internal quotations and citations omitted). Justice Sotomayor’s impassioned dissent, and Justice Kagan’s joining of that dissent, indicate that the two junior Justices are at least likely to replace their predecessors in a five-Justice majority critical of the application of capital punishment to the mentally ill.

Four Justices have to vote to grant a petition for certiorari, and of course five have to vote to decide a case in a certain way. If Justice Kennedy continues his trend of voting to exclude less culpable defendants from receiving capital sentences, and if Justices Kagan and Sotomayor share their predecessors tendencies, then there is likely a five-Justice majority to establish a categorical prohibition on the execution of the mentally ill. First though, four Justices have to vote to hear the case. Justice Kagan has said in the past that she has has no “moral qualms” about the death penalty, and Justice Kennedy joined the majority in its entirety in Pinholster. If there are two of the potential five Justices that are not ready to hear a case asking for further restrictions on the application of capital punishment, the case may never make it before the Court in time to save Mr. Turner. The cert petition itself may even frighten some Justices about the scope of the issues potentially on the table if they chose to hear the case because the petition argues first that there is an evolving standard of decency against the execution of the mentally ill, and then that there is in addition an evolving standard against the death penalty itself. Pet. at 14. Ultimately though, Mr. Turner’s argument is directly within the line of reasoning applied in Atkins and Roper, and those of us who desire a more humane and justified criminal justice system can hope along with Mr. Turner that his petition will be granted in time to save his life.

By Sarah R. Riedl *

Why does Spotify limit free music streaming to ten hours per month and limits repeat playing of single songs to only five times per month, while Grooveshark users stream to their hearts’ content?  Unfortunately for Grooveshark, the unlimited streaming may cost the company a pretty penny.

On Wednesday, January 4, 2012, EMI Music Publishing became the fourth major music label to file suit against Escape Media Inc., parent company for Grooveshark, for copyright infringement.  EMI’s suit came only one month after Universal Group, Sony Corp, and Warner Music Group filed a federal suit accusing Grooveshark of piracy in violation of copyright law.  Just three years prior to this most recent lawsuit, Grooveshark’s parent company Escape Media Group negotiated a licensing agreement with EMI, providing for payment of royalties.  EMI’s complaint alleges that Grooveshark has failed to pay any royalties since that agreement solidified.

Grooveshark operates a website that allows users to upload music files to Grooveshark’s servers, which can then be streamed by any of the site’s 35 million users.  Grooveshark claims its service does not constitute copyright infringement under the Digital Millennium Copyright Act.  The provisions of the Act provide limited exceptions to activity that would otherwise constitute copyright infringement.

Under the terms of the Act, infringement liability is limited for websites that store content at the direction of users provided three conditions are met: (1) the website does not have actual knowledge of the infringing activity; (2) the website must not earn a direct financial benefit over infringing activity it has the capacity to control; and (3) after receiving notice of infringing activity the website must quickly remove the material.

Grooveshark operates under the same exception to the Act as other user-based websites including YouTube.com.  The main thrust of the exception provides protection from copyright infringement suits provided the company complies quickly with any take-down notices received from copyright holders.

Grooveshark’s litigation future does not look rosy, especially in light of admissions from Grooveshark’s own staff.  Comments made by Grooveshark’s own personnel indicate the company had actual knowledge of the infringing activity, thereby failing the first prong necessary for limited liability.  For example, according to the complaint filed by another label late last year, the senior director admitted “that Escape ‘bet the company on the fact that it is easier to beg forgiveness than ask permission.’”  A Grooveshark employee blogged about how employees are encouraged to upload as much material as possible to the servers, and receive bonuses for going above and beyond company-set uploading quotas.

Additionally, the senior director further added that the strong growth of the company was bolstered “without paying a dime to any of the labels.”  The director seemingly throws a wrench into the second prong just as he did the first.  The second prong to escape infringement liability requires the company not gain a direct financial benefit as a result of the infringing activity.  However, the director illustrates that Grooveshark was created on the premise of getting something, or in this case a whole lot, for nothing.

Due to the comments made by Grooveshark’s own and the failure to pay any royalties to EMI despite contractually obligated to do so for the past three years, the most provident course of action for Grooveshark would be to settle.  Perhaps allocating some of the “meteoric growth” profits made “without paying a dime”  to an enticing settlement offer would be helpful.  Whether Grooveshark will choose litigation or a settlement negotiation is unclear, but the future of Grooveshark user’s unlimited indulgence in copyrighted material will certainly change.

—

*  Sarah R. Riedl is a second year law student at Wake Forest University School of Law.  She has a Bachelor of Arts in English from the University of Illinois.  Upon graduation in May 2013, Miss Riedl intends to practice business litigation and intellectual property law

HarvardCRCL.org is proud to announce the imminent launch of the Harvard Civil Rights-Civil Liberties Podcast.  The podcast will allow us to increase the quantity of issues covered on the site, improve the diversity of content offered to our readers, and provide a forum for a broader range of voices in the progressive, legal community.  We hope to bring together students, professors, legal practitioners, and anyone else with insight into important legal developments.  Though the podcast will, at first, be a work in progress, we know that the best way to find out what our audience is interested in hearing is to start developing the content and receiving your feedback.

The CR-CL Podcast will launch in early February 2012.  You will be able to subscribe to the podcast in your favorite podcatcher app or via iTunes.  We welcome questions, comments, or suggestions on the podcast at CRCLonline@gmail.com.

Facebook seeks to raise $5 Billion in its initial public stock offering, making it the largest Internet IPO on record.  It is believed that its stock offering will value the company $75 and $100 billion.  Mark Zuckerberg, however, will maintain his control over Facebook with voting power of almost 60 percent of total shares.  Meanwhile, Facebook is coming under a siege of patent lawsuits.  In 2011, Facebook was named as a defendant in 22 patent infringement suits.

Google announced its new privacy policy, which is set to become effective on March 1.  The new policy will allow it to track users’ activities across YouTube, Gmail, its search engine, and nearly all of its other sites.  Users will not be able to opt out, which may trigger more scrutiny from federal regulators.

On January 23, the Supreme Court held that attaching a GPS device to track a vehicle constitutes a search under the Fourth Amendment and requires a warrant.  The ruling is considered a victory for privacy rights in the age of advanced technology, but some argue it was too narrowly reasoned on the basis of the physical intrusion of attaching the device.

Congress indefinitely shelved the controversial antipiracy bills SOPA and PIPA after over 7,000 websites, including Wikipedia and Google protested the bills, handing a crushing blow to the traditional media industry.

Following the shutdown of file-sharing site Megaupload last month and arrest of 7 company employees, Federal prosecutors announced that Megaupload user data would be deleted as early as Thursday (Feb. 2).  However, a nonprofit group stepped in at the last minute, announcing on Wednesday that it would work with data-storage providers to create a website that will allow legitimate Megaupload users retrieve their data.

Stillbirth is a confounding event, a reproductive
moment that at once combines birth and death. This Essay discusses the
complications of this simultaneity as a social experience and as a matter of
law. While traditionally, stillbirth didn’t count for much on either score,
this is no longer the case. Familiarity with fetal life through obstetric
ultrasound has transformed stillborn children into participating members of
their families long before birth, and this in turn has led to a novel demand on
law.

Dissatisfied with the issuance of a stillborn death
certificate, bereaved parents of stillborn babies have successfully lobbied
state legislatures nationwide to issue stillborn birth certificates under newly
enacted “Missing Angel Acts.” These Acts raise a perplexing set of questions. While
acknowledging the desire of grieving parents to have some form of recognition
for their children, it is important to think carefully about just what is being
certified in the name of the larger community. How has issuing birth
certificates to babies who never lived come to seem a reasonable rather than an
eccentric legislative gesture? And importantly, do stillborn birth certificates
have implications for other areas of law involving prenatal death, particularly
the regulation of abortion?

This Essay discusses the history, meaning, and
politics of stillborn birth certificates. Recognizing that Missing Angel Acts
may seem a compassionate and seemingly harmless use of law, I want to consider
a more complicated story. Law’s relationship to mourning practices in the difficult
circumstances of stillbirth raises important issues concerning the effective
authority of law, the use of legal fictions in modern identity documentation,
and the desirability of lines between private and public responses to death.

The American West is notorious for its water wars,
and California’s complex water allocation and governance challenges serve as a
bellwether for contemporary water governance across western states. Policy
makers and environmental advocates typically represent California’s water woes
as a regulatory problem-a failure to balance the needs of growing urban
populations with ecological preservation and agricultural irrigation. These
debates, however, often elide the issue of water deprivation, and they do not
adequately address the concerns of an important constituency: low-income, rural
communities.

This Comment argues that a focus on regulation
misses a fundamental feature of water inequality: the structure and design of local
water districts. Utilizing a case study of California’s Central Valley to
illustrate how these structural barriers operate, I argue that California’s
complex system of local water districts fractures governance, limits electoral
participation, and undermines the State’s stated environmental, equity, and
utilitarian water goals. I offer suggestions for alternative local water
district organization in order to address the constraints of California’s
current water governance regime.

Forty-five years since the U.S. Supreme Court first
recognized the right to a criminal jury trial as “fundamental to the American scheme
of justice,” jury trial rates (the prevalence of jury trials relative to bench
trials) in American criminal adjudication actually vary dramatically by state.
A sizable body of scholarship has generally explored the decrease in criminal
trials, but this “Vanishing Trial” literature has largely ignored the notable
state-by-state disparities in jury trial rates. After reviewing the historic
role the Framers expected the jury trial to play in criminal adjudication, this
Comment analyzes the existing data on jury trial rates and identifies
surprising disparities from one jurisdiction to the next. The Comment then
explores various state practices that may be sources of these variations, often
pushing the jury trial to the margins of criminal adjudication and
disadvantaging those accused of wrongdoing. The Comment concludes by
contrasting the Supreme Court’s recent jurisprudence celebrating the centrality
of the jury trial with the lived experiences of criminal defendants, and argues
for a more substantive understanding of the Sixth Amendment’s trial by jury guarantee.

The debate is characterized by a focus on whether
the system produces an optimal quantity of enforcement. This Article assesses
the centralization debate through a different lens, emphasizing differences in
the quality of enforcement, particularly the values that influence and are
expressed by enforcement. To frame the discussion, it draws a distinction
between two categories of enforcement: rule-enforcement and principle-enforcement.
Rule-enforcement is less costly and controversial than principle-enforcement
because specific rules tend to reflect the technical requirements of an
administrative regime while general principles can reflect a wider range of
values.

Enforcers differ in their approach in taking on the
cost and controversy of principle-enforcement. Industry enforcers are likely to
interpret principles narrowly based on industry values. Regulatory enforcers
such as the SEC may find it difficult to adequately enforce principles because
of the pressure of implementing consistent regulatory policy. Public-values
enforcers such as federal prosecutors and state attorneys general are willing
to enforce principles in light of social values but may overreach because of political
ambition. Entrepreneurial enforcers such as class action attorneys are most
willing to invest in principle-enforcement but also have a tendency to bring
questionable cases for profit.

The choice between a centralized and decentralized
enforcement system is fundamentally a choice between a one-dimensional and multidimensional
conception of the values relevant to securities enforcement. Proposals to
centralize securities enforcement are motivated by a desire to eliminate the
conflicts that can arise between enforcement approaches that reflect different
values. The cost of such centralization is that the advantages diverse
enforcers bring to the table will be eliminated. This Article concludes that a
decentralized system is best justified by recognizing the particular strengths
of different enforcers rather than focusing on whether an optimal amount of
enforcement is produced.

Too often, popular political power-whether it is in
the form of direct democracy or other more innovative forays in participatory
or deliberative democracy-presents itself principally as a counterweight to the
political power parties wield. Yet setting up “popular democracy” and “party
democracy” in opposition to one another in the American political landscape is
not only unnecessary but also pathological: this oppositional posture risks the
ossification of party democracy and keeps popular democrats insulated from the substantial
improvements the power of parties could bring to the polity. This Article,
accordingly, seeks to enrich both party democracy and popular democracy by
showing how each might draw strengths from the other, and how each needs the
other to function more effectively. A new literature in political theory
explores the central role of partisanship in democratic functioning, and we
will deploy that theory in service of some practical applications in institutional
design here. We have been involved-on the ground level-in two recent policy
conversations that really would have been improved with a complementary vision
of the parties and the people. We could have better exercises of party democracy
and popular democracy, if only we started to see how they might be brought into
pragmatic symbiosis.

This Article examines the astonishing array of
doctrines used to determine what constitutes marriage fraud. It begins by
locating the traditional nineteenth-century annulment-by-fraud doctrine within the
realm of contract fraud, observing that in the family law context fraudulent
marriages were voidable solely at the option of the injured party. The Article
then explains how, in the twentieth century, a massive expansion of public
benefits tied to marriage prompted new marriage fraud doctrines to develop in
various areas of the law, shifting the concept of the injured party from the
defrauded spouse to the public at large. It proposes a framework for
understanding these new doctrines by demonstrating that courts apply different
tests for finding fraud depending on the value of the benefit sought compared to
the cost to the individual of using marriage to obtain it. Furthermore, the
Article argues that marriage is an ineffective means for distributing public
benefits that serve specific objectives; in other words, marriage is being
asked to do too much work. As a possible response to this problem, the Article
concludes that lawmakers could disaggregate the components of marriage to which
they attach public benefits. This would improve the efficacy of public benefits
distribution without entirely dismantling the institution of marriage or jeopardizing
the stability that it may provide to society.

• Content Type Journal Article
• Pages 1-30
• DOI 10.1007/s10657-012-9298-3
• Authors
  • Giuseppe Bellantuono, School of Economics, University of Trento, Via Inama 5, 38122 Trento, Italy

• Journal European Journal of Law and Economics
• Online ISSN 1572-9990
• Print ISSN 0929-1261

This Article examines the First Amendment complexities associated with the dissemination of potentially harmful information in the global theater. These complexities include global dissemination of offensive expression, incitement to unlawful activities abroad, enemy-aiding expression that crosses territorial borders, and global free press concerns. The author argues that traditional First Amendment doctrines and principles ought generally to apply in the global theater. Reliance on marketplace and self-governance principles, application of speech-protective incitement standards, and continued support for an expansive and robust conception of press freedoms will preserve transborder First Amendment liberties in the digital era and allow the global theater to develop and mature. The author urges government officials not to react to potentially dangerous global theater expression by adopting new restrictions on transborder expressive and associational activities; creating new criminal offenses that inhibit transborder information flow; establishing broad penalties relating to transborder commingling and association; resorting to extrajudicial and potentially extralegal penalties for dangerous speakers; or imposing new limits on press freedoms.

In addition to these specific First Amendment issues, the Article also discusses several broader concerns relating to the development of the global theater. The author contends that in the global theater era, it will be critically important to the protection of speech and press liberties that officials and courts act with due regard for the First Amendment’s transborder dimension. Moreover, in the global theater, First Amendment justifications should be interpreted to encompass global information flow, cross-border collaboration, and the global spread of democratic principles. More attention must also be paid to the unique legal, professional, ethical, and identity challenges the press will face in the global theater. Finally, the author urges that more careful legal and scholarly attention be given to new restrictions on global information flow, including actions of private intermediaries and nonconventional forms of government censorship.

• Content Type Journal Article
• Category Book Review
• Pages 1-1
• DOI 10.1007/s10657-011-9290-3
• Authors
  • Juergen G. Backhaus, Krupp Chair in Public Finance and Fiscal Sociology, University of Erfurt, Nordhauser Strasse 63, 99089 Erfurt, Germany

• Journal European Journal of Law and Economics
• Online ISSN 1572-9990
• Print ISSN 0929-1261

Sharfstein’s book follows three families whose members at some point crossed the color line separating black from white—or tried and failed to. These case studies tell us what it is to be American—how race is central to our identity, how we use race to take down opponents or to exclude—and how the line separating black and white is sometimes porous. However, is not the story of race and American legal history about the ways that race is defined by law and by norms? Race mattered because people policed the line separating blacks and whites. That many states classified people with a small percentage of African ancestry as white suggests that it was possible to move across the color line. Still, the cases where the color line was policed, rather than crossed, are significant.

In 1992, the North American Schmiedeleut Hutterian Church, a religion endorsing an agrarian, communal life based on the Bible’s New Testament, split into two competing factions. Out of 173 Hutterian colonies located mostly in the United States, 95 colonies disclaimed the leadership of their once-reining Senior Elder, Reverend Kleinsasser, because of allegations that Kleinsasser misused church funds. See Here. As a replacement, disgruntled colonies endorsed a new candidate, Reverend Wipf, as the new Senior Elder of the Hutterian Church.

Although the leadership transition went smoothly in the preponderance of Hutterian colonies throughout the United States, in some colonies, to say the least, it did not. The Hutterville Colony of South Dakota, for example, continues to fight over its corporate governance structure ever since the initial schism in 1992. While some members refuse to repudiate Kleinsasser’s leadership, others believe Wipf is now entitled to the leadership chair in the Hutterville Colony, which is organized as a non-profit corporation under South Dakota law. Because building consensus within the colony after so many years proved futile, however, litigation seemed like the only recourse and ensued in 2010. If the community couldn’t resolve the leadership dilemma, the contending factions at least hoped the secular judiciary would do it for them, once and for all.

Before Hosanna-Tabor had any say, a South Dakota Circuit Court did just that. Instead of asserting that the First Amendment precluded the court from scrutinizing such ecclesiastical matters for fear of entangling itself in religious doctrine and belief, Judge Wold held the only solution was for the Hutterville Colony to dissolve so that its assets could be distributed equally to all the members of the community.

Upon review, however, the South Dakota Supreme Court in Wipf v. Hutterville Hutterian Bretheren, Inc took a step back from Judge Wold’s decision in light Hosanna-Tabor‘s recent teaching: certain ecclesiastical matters such internal leadership decisions should not be adjudicated by secular courts. Because the Hutterville Colony’s corporate governance structure made following the Hutteritan religion a prerequisite of corporate membership and incorporated sectarian doctrine throughout much of its corporate documents, the South Dakota Supreme Court aptly recognized it had no place in adjudicating this religious controversy. In order to resolve the dispute it would not only have to analyze the Hutterian religious doctrine, a totally foreign subject matter, but it would also have to render a legal judgment based on these sectarian teachings. Consequently, the South Dakota Supreme Court held it lacked jurisdiction to order the dissolution of the colony, placing the controversy back in the hands of the Hutterville Colony to determine whether Kleinsasser or Wipf rightly assumed the rod of power.

In one of the first cases to cite Hosanna-Tabor, Wipf vindicates the limited role of secular courts in resolving matters of ecclesiastical import. Therefore, while Hosanna-Tabor surprisingly failed to define who qualifies as a minister for purposes of the ministerial exception, the decision’s clear declaration of the limited role of courts in resolving internal religious controversies will likely make serious waves in state and federal courts alike in the years to come. Contrary to its hopes, then, the Hutterville Colony found no secular enlightenment in the South Dakota Supreme Court in the wake of Hosanna-Tabor. Instead, the religious community must rely on its own internal dispute resolution mechanisms to resolve its decade-long controversy as to who shall reign supreme at Hutterville.

A similar debate is brewing in North Carolina, which instituted forced sterilization programs from the 1930s to the 1970s as part of a eugenics program aimed to reduce poverty and shrink government welfare programs.  Over thirty states had forced sterilization programs, driven by a belief that they would “improve the gene pool.”  Those who were sterilized often did not know the purpose of the surgeries until after the fact. Victims were chosen using IQ tests and social worker recommendations based on factors such as “promiscuity” and “feeble-mindedness,” and reports on mental and physical health.   The state’s Eugenics Board made the final decision on the operation.  Families were often threatened with losing their government benefits if they did not sign the sterilization consent forms.  The program disproportionately affected poor black families – 40% of those sterilized were non-white minorities, and 85% were women and young girls.

Last Friday, the NC Justice for Sterilization Victims Foundation, an organization that North Carolina Governor Bev Purdue created in 2010, issued its Final Report to the governor.  It included a recommendation to provide outreach to victims, mental health support, public education, and $50,000 in compensation to the 1,500 living victims of forced sterilization.  To many, this figure is humiliating and inadequately considers the value of the victim’s life, the loss of potential children, lifelong humiliation and regret, and the cost of medical care as a result of the procedures.  But the report states: “compensation is not meant to value life loss or the choices taken away from nearly 7,600 men and women but to serve as a strong and collective acknowledgement of an abusive government program that should never be duplicated by this state or any other government ever again.”

The Supreme Court upheld the legality of forced sterilization in the famous case of Buck v. Bell, 274 U.S. 200 (1927).  The Supreme Court held that a Virginia sterilization statute did not violate the Fourteenth Amendment and did not deny Buck (who had her fallopian tubes removed) due process and equal protection.  Justice Oliver Wendell Holmes wrote: “Carrie Buck is a feeble-minded white woman … [and] if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society; and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, etc.”  Due process had not been violated because the Eugenics Board provided sufficient procedures in making its decision by offering a hearing, proper notice of the hearing, and the evaluation of appropriate evidence to make a final sterilization recommendation.  Regarding the attack on the substantive law, Justice Holmes wrote that the Court could not say that there were no grounds to justify this law:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes …. Three generations of imbeciles are enough.

In 1942, the Supreme Court’s ruling in Skinner v. Oklahoma, 316 U.S. 535 held that an Oklahoma sterilization statute violated the equal protection clause of the Fourteenth Amendment, but on grounds that still left open the possible legality of other sterilization statutes.  Oklahoma’s statute ordered sterilizations for “habitual criminals” convicted of “felonies involving moral turpitude.”  However, since larceny counted as a felony of “moral turpitude” while embezzlement did not, the Court held that “when the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.”   The line between larceny and embezzlement resulted in different sterilization consequences, and the Court found this line to be arbitrary.

North Carolina is in a unique position as the first state to offer compensation to victims of sterilization programs.  Professor Lombardo, a law professor at Georgia State University, argues that states should pay for these wrongs even when they were legally inflicted, likening these payments to ones paid to prisoners exonerated by DNA evidence.  North Carolina’s legislators should act with urgency to pass a resolution agreeing on financial compensation to victims.  Professor Waterstone, a law professor at Loyola (Los Angeles) notes three reasons why the state’s actions are critical: 1) the state has a moral obligation to recognize its history of wrongdoing, make amends, and create public awareness; 2) North Carolina can bring to light the modern-day ramifications of genetic discrimination, as this is especially pertinent in the healthcare industry today (such as denying insurance coverage to those with predispositions to certain diseases); and 3) Buck v. Bell has been narrowed but not explicitly overturned, and North Carolina’s actions should lead to a re-evaluation of the law.  Courts still uphold classifications based on disability using rational basis review, concluding that these laws are “rationally related” to a “legitimate government interest.”  Very recently, a Massachusetts court suggested that a pregnant woman known as Mary Moe, who suffers from schizophrenia and bipolar disorder, should be sterilized.  (The Massachusetts appellate court did reverse the lower court’s holding.)

Additionally, forced sterilization laws are not exclusive to the United States – transgendered people in Sweden who wish to legally change their gender on official papers must first get divorced and sterilized, as required by a 1972 law.  Sweden’s history of forced sterilization mirrors North Carolina’s – over 60,000 people classified as “mixed race individuals,’ single mothers with many children, deviants, Gypsies, and other vagabonds” were forcibly sterilized between the 1930s and 1970s.  Perhaps North Carolina’s actions can serve as a wake-up call to our courts and the international community that these incongruities still exist today.  The issue the state deals with today is not just about correcting a historical wrong, but equally about confronting modern-day legal challenges.

For all the drama surrounding the Commerce Clause challenge to the individual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”),[1] the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the Supreme Court will abide by its previously announced doctrines and uphold the individual mandate. So I mean to engage U.S. Department of Health and Human Services v. Florida as the easy case it is and to explore an underappreciated feature of how it came to be so easy. 

My focus is the role of United States v. Lopez, in which the Supreme Court famously struck down the Gun-Free School Zones Act of 1990 as beyond Congress’s power to enact under the Commerce Clause.[2] In the conventional telling, Lopez (along with its sidekick, United States v. Morrison[3]) is the source of the doctrinal threat to the PPACA’s individual mandate. Before Lopez, the Supreme Court had settled into the practice of upholding pretty much anything that Congress claimed to be within its commerce power, largely on the strength of the econometrically undeniable proposition that every law that does anything (or at least every law that does anything to a lot of people) has effects on interstate commerce. But for Lopez, the conventional view therefore runs, we would live for practical purposes in a world of plenary federal power. Courts would not take Commerce Clause challenges seriously, and any attack on the PPACA would have to be mounted on other grounds.

I think this conventional telling may be backwards. That is, I think it nearer the truth to say that Lopez may be the PPACA’s salvation-that without Lopez, the individual mandate would be considerably more precarious. I say this not because Lopez announced some rule that creates a safe harbor for the individual mandate. On its face, Commerce Clause doctrine was obviously more favorable to federal regulation on the day before Lopez was decided than on the day after. I say it instead for two other reasons, one practical and one discursive.

The practical reason is located in the common law dynamics of Supreme Court decisionmaking. Lopez announced limits on the commerce power, but it also forced the Court in later cases to articulate rules that would limit those limits. Without Lopez there would be no Gonzales v. Raich,[4] and it is Raich that makes upholding the individual mandate so blisteringly easy as a matter of doctrine.

Then there is the discursive reason. As a matter of the dynamics of American constitutional discourse, the Supreme Court feels pulled to show respect for the maxim that the federal government is one of limited and enumerated powers. But having demonstrated that respect in Lopez (and Morrison), it need not do so again and again and again: Lopez (and Morrison) may be enough to let the Court look itself in the eye as it recites the maxim, and that may be all that is necessary. On the other hand, if the modern Court had not yet demonstrated that it takes the enumerated powers maxim seriously, the urge to do so now might be irresistible.

In what follows, I will first explain why the individual mandate is within Congress’s Article I power under existing doctrine. That will happen quickly. As I’ve said, the question is pretty easy, and there is no need to tarry over it. I will then move to something a bit more subtle: the idea that Lopez has made the world safe for the PPACA.

I.

Here, in four sentences that would be uncontroversial if health insurance reform were not a divisive political issue, is the explanation of why enacting the individual mandate is within Congress’s power. (1) Congress has the power to regulate interstate commerce, including the power to regulate economic activities with substantial effects on interstate commerce.[5] (2) The health insurance market is either an interstate commercial market or, at the very least, a market with massive effects on interstate commerce. (3) When Congress uses its commerce power to regulate with a comprehensive legal scheme, it may under the Necessary and Proper Clause make rules for things that are themselves neither interstate nor commercial, if those rules are necessary for effecting the policy of the regulatory scheme overall.[6] (4) The PPACA regulates the health insurance market comprehensively, and the individual mandate is necessary for making that comprehensive regulatory scheme work.

That’s pretty much it. If there are remaining niceties, they have been thoroughly addressed in opinions by Judges Lawrence Silberman and Jeffrey Sutton.[7] To be sure, the individual mandate is enormously controversial as a political matter, and we have all observed that certain kinds of political controversy get articulated in the language of constitutional objection. Indeed, such objections are sometimes felt powerfully enough among the decisionmaking class as to prompt a change in constitutional doctrine. This is a basic dynamic of living constitutionalism. But if the question before us is how settled constitutional law bears on the individual mandate, we need say no more. As John Marshall almost put the point, whether the PPACA’s individual mandate provision is within Congress’s commerce power “is a question deeply interesting to the United States,” but it is “not of an intricacy proportioned to its interest.”[8]

II.

What is intricate as well as interesting, I think, is the set of forces that have made this much-anticipated decision so doctrinally easy. My focus is on the role of Lopez-a decision that I see as a critical step toward upholding the individual mandate. That may seem unorthodox, given that Lopez represents the contemporary Court’s commitment to putting limits on the commerce power. But fans of the individual mandate are deeply fortunate that Lopez was decided as it was. As noted above, there are two reasons why, one rooted in the common law process of Supreme Court decisionmaking and one located in the dynamics of American constitutional discourse.

A. Common Law Process

Lopez imposed limits on the commerce power for the first time in decades. But Lopez did not undo all of the ways in which the world changed during those decades, and the Court has not been so impractical or so ideologically blinkered as to think that it can fully turn back the clock. Instead, the Court has recognized that we live now under conditions of pervasive federal regulation, much of which it would be foolish to eliminate. Once Lopez was on the books, therefore, its holding forced the Court to engage seriously with the question of how constitutional law could impose a limit on the commerce power while still permitting the elaborate edifice of federal law that keeps modern America running. That engagement took the form of normal common law development: here a case limiting a principle that should not be too far extended, there a case refining a rule that was stated too crudely before.

The high moment of this process to date has been Gonzales v. Raich, in which the Court upheld a provision of the federal Controlled Substances Act as applied to an individual citizen growing marijuana for his own noncommercial use. Justice Antonin Scalia’s opinion in Raich stands as one of the most cogent expositions of the commerce power ever written. With its clear-sighted view of the difference (and interaction) between the Commerce Clause and the Necessary and Proper Clause, Justice Scalia’s opinion credibly explains both the impermissibility of far-flung, scattershot federal laws like the Gun-Free School Zones Act and the validity of the comprehensive federal regulatory schemes on which the modern American economy now depends. The Commerce Clause itself, the opinion teaches, reaches only interstate commerce, defined in terms of the three categories-channels, instrumentalities, and substantial effects-that Lopez deems regulable.[9] But when Congress enacts a regulatory scheme whose object lies within those categories, its chosen implementation may also reach beyond those categories. If need be, it may reach into space that is neither interstate nor commercial, so long as the implementing regulation is an integral part of the overall scheme authorized by the commerce power.

It is Raich, therefore, that makes upholding the individual mandate so straightforward. In my earlier four-sentence explanation of the validity of the individual mandate, sentence (3) and perhaps also sentence (4) owe not just their authority but also their crisp formulation to Raich, and in particular to Justice Scalia’s analysis in that case. Without Raich, the Supreme Court would approach the PPACA and individual mandate without the benefit of a prominent, well-articulated, ready-to-hand framework explaining that otherwise ultra vires congressional action can be unproblematically within Congress’s power if it is an integral part of a larger legal scheme regulating interstate commerce.

To be sure, there is no conceptual reason why that framework had to be articulated in Raich rather than awaiting articulation in Department of Health and Human Services. Either set of facts would make it appropriate for the deciding Court to explain that a challenged provision that by itself might not regulate interstate commerce is valid if part of a larger system that does regulate interstate commerce. But as observers of common law development know, not every case is an equally likely occasion for every possible doctrinal development. Principles are refined when refinement is needed, and whether a refinement is needed is something that the particular court applying the doctrine decides. When faced with the alternative of undermining congressional drug policy and permitting Angel Raich to grow his marijuana, the Rehnquist Court was moved to refine its doctrine and allow federal law to stand. It is far less clear that the Roberts Court would feel the need to refine doctrine in order to sustain the individual mandate.

So: Without Raich, the Court would lack a framework that cogently explains why permitting the individual mandate to stand does not mean permitting Congress to do anything it likes. And Raich as we know it came into being because of Lopez (and Morrison). Without Lopez (and Morrison), the justices would not have needed to articulate any complex or refined theory in order to uphold a portion of the Controlled Substances Act.

To be sure, it is also true that without Lopez (and Morrison) the Court could not strike down the individual mandate on the authority of Lopez (or Morrison). But the problem that sank the Gun-Free School Zones Act in Lopez would still be deployed against the individual mandate, even if Lopez had never been decided. The party challenging the statute would contend that to permit this federal law is to say that the Commerce Clause authorizes anything, and that just cannot be. Without Raich, the justices might not have already formulated (and committed to writing) the insight that permitting a rule as part of a general regulatory scheme is not the same as permitting any rule at all. Unless the justices were willing to work to find that answer with the PPACA before them, the individual mandate would fall. And it is not clear that the Roberts Court would see the incipient death of the individual mandate as a sign that something was going wrong, such that doctrinal refinement would be necessary to set things right.

B. The Dynamics of Constitutional Discourse

As part of their socialization into the world of American constitutional law, lawyers learn the maxim that the federal government is one of limited and enumerated powers. For a long portion of the twentieth century, expert observers could be forgiven for wondering whether that maxim had remaining force. But the maxim never disappeared: it was never consigned to the dustbin of constitutional expressions. It stayed around, repeated from teacher to student as a living idea. Even most supporters of strong federal power were loath to jettison the enumerated powers maxim as a matter of principle. At no point in our post-1937 history does one find judges or law professors routinely or ordinarily contending that the federal government has plenary power. To be sure, many people felt that the federal government had something close to plenary power in practice, such that the maxim that the federal government is one of limited and enumerated powers was essentially a nostrum devoid of meaningful present content. But for a great many well-socialized American lawyers-perhaps enough to claim the mainstream of constitutional discourse-the phrase “our federal government is one of limited and enumerated powers” was always one that induced head-nodding, at least as a matter of principle.

To utter this maxim is to engage in a profession of faith. For many American lawyers, declaring that the federal government is one of limited and enumerated powers is a way of showing fidelity to the Founders’ design, to American tradition, to the structure of the document, and perhaps to their own experience of induction into the discipline of constitutional law. To disavow the maxim officially would be to break faith along all of these dimensions. Constitutional law has tolerated tremendous expansions of federal power in practice, as the logic of modern life has directed. But it has proved easier to tolerate those expansions while continuing to pay homage to the maxim than to repudiate the maxim openly. A piece of our identity is invested in the maxim: articulating it reminds us of a part of who we are, or of a story in which we locate ourselves.

Lopez was decided as it was partly because a majority of the Court felt that it could not uphold the Gun-Free School Zones Act and still utter the maxim. At oral argument in the case, the Solicitor General of the United States was asked to identify a law that the federal government could not make if the statute at issue were upheld. He could not provide an example.[10] In the absence of such an example, and once the question had been asked, those justices most concerned with limiting federal power (or keeping faith with certain inherited maxims) could surely have felt that upholding the Gun-Free School Zones Act would have made the hallowed phrase unsayable. Seen in this light, the Court’s decision in Lopez was partly a compulsory demonstration of bona fides. If you really believe in this maxim, the contention ran-and of course you do-then there can be no justification for your upholding the statute. Or put the other way, if you uphold the statute, you will be forever estopped from claiming that you honor this traditional maxim. You will be, to that extent, a heretic. And if you are supposed to be the guardian of the principles at whose articulation well-socialized constitutional lawyers nod their heads, a heretic is an uncomfortable thing to be.

That said, the maxim does not demand that the Supreme Court constantly strike down federal laws. It demands only evidence that it is taken seriously. Lopez and Morrison insulate the Court against charges of heresy on the point-not perfectly, but considerably more than would be the case had those decisions not been rendered. In later cases, the Court can uphold far-reaching exercises of the commerce power without laying itself as open to the claim that it has let the maxim come to nothing.[11] When it upholds other federal statutes, the Court can identify concrete examples of laws that are beyond the commerce power, laws with respect to which it has exercised its solemn duty to police the boundaries of federal legislative power.[12] So when it upholds other laws as within the commerce power, it can adduce evidence that it has not left the maxim empty.

Now imagine the counterfactual world in which the Gun-Free School Zones Act had not come before the Supreme Court. The Court’s case law would not include Lopez‘s demonstration of fidelity. For simplicity’s sake, assume also that there was no Morrison. To those justices for whom it matters, the anxiety that the enumerated powers maxim has been abandoned would be more potent than it is today, and the payoff for holding some law to be beyond the commerce power would be commensurately greater. So if the PPACA and its individual mandate were to come before a Court that had not yet stood up for the maxim, several justices might experience a deeply powerful pull toward demonstrating fidelity to the maxim, especially in light of the public salience of the decision. With no Raich framework on the books, the doctrinal path to that demonstration of fidelity would be easier than the one that now exists. And one need not be a crude attitudinalist to think that this Court would need less than overwhelmingly favorable conditions to be convinced to rule against the PPACA.

Conclusion

My argument has been both anticipatory and speculative. If the Court strikes down the individual mandate, my thoughts here may come to seem quaint or benighted or naïve. And even if the Court upholds the mandate, as I expect it to do, I will not be able to prove what would have happened in a world without the Gun-Free School Zones Act. Not knowing the contents of other people’s minds, I can make no conclusive statements about the extent to which the dynamics I have described operate, consciously or unconsciously, within the decisionmaking process of any given justice. This is particularly true of my claims about the role of the enumerated powers maxim in American constitutional discourse. Nonetheless, the thought experiment I have rehearsed has value in thinking about the dynamics of American constitutional law. Among other things, it makes the point that the alternative to the world of Lopez is probably not a world where the federal judiciary merrily dispensed with any impulse to honor the idea of limited federal power. It is more likely a world where that impulse had not yet been given expression and force in a modern Supreme Court decision. Discourses evolve, and sometimes hallowed maxims disappear. But while they live, they can be mobilized. And sometimes they lie about like loaded weapons.

Lopez dissipated our constitutional culture’s discursive pressure to vindicate the enumerated powers maxim. Not entirely, of course-some people who recognize that the individual mandate is within the commerce power under present doctrine continue to worry that the Court is not giving the enumerated powers maxim its full due.[13] But one or two examples of taking the maxim seriously do infinitely more to allay that worry than zero examples would. Just as importantly, Lopez set in motion a process of common-law refinement that by 2006 produced an articulate framework for upholding pervasive federal regulation. Forced to live in the modern world, Lopez begot Raich, and Raich makes upholding the individual mandate easy. Stated differently, Raich requires the Court to work hard to explain why the mandate is unconstitutional, whereas before Raich greater effort would have been required to show that the mandate was valid. And the burden of cognitive effort can matter a great deal, especially when combined with a Court’s inclination to go one way or another in the first place.

In his dissent in Lopez, Justice David Souter wrote that it would be a mistake to think of the decision rendered that day as a minor development in the law. It is sometimes the case, he wrote, that one does not realize how important a decision will become until years later, when one sees the course on which that decision set the law. At a certain level of generality, Justice Souter’s observation is surely correct. But Justice Souter’s point was that Lopez could be the beginning of a large rollback of the commerce power, one that could imperil the world of federal regulation in which his generation had always lived. So far, that has not come to pass. Instead, one of the most consequential effects of Lopez may be the development of a more stable rubric for upholding comprehensive federal regulation-a rubric that has more or less by accident taken shape just in time to preserve one of the most ambitious federal laws in American history.

Richard Primus, professor of law at the University of Michigan Law School. Thanks to Jessica Morton and Samuel Rudman.

Suggested citation: Richard Primus, Commentary, How the Gun-Free School Zones Act Saved the Individual Mandate, 110 Mich. L. Rev. First Impressions 44 (2012), http://www.michiganlawreview.org/assets/fi/110/primus.pdf.

[1].      Pub. Law No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. Law No. 111-152, 124 Stat. 1029 (2010).

[2].       514 U.S. 549 (1995).

[3].       529 U.S. 598 (2000).

[4].       545 U.S. 1 (2004).

[5].       Lopez, 514 U.S. at 559.

[6].       See Raich, 545 U.S. at 17-18; id. at 34-35 (Scalia, J., concurring).

[7].       See Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011); Thomas More Law Ctr. v. Obama, 651 F.3d 529, 549-66 (6th Cir. 2011) (Sutton, J., concurring in part).

[8].       Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).

[9].       Raich, 545 U.S. at 34-35 (Scalia, J., concurring).

[10].      Oral Argument at 4:52, United States v. Lopez, 514 U.S. 549 (1995) (No. 93-1260), available at http://www.oyez.org/cases/1990-1999/1994/1994_93_1260#argument.

[11].       E.g., United States v. Comstock, 130 S. Ct. 1949 (2010).

[12].       See e.g., id. at 1963 (citing Lopez, 516 U.S. at 567); Raich, 514 U.S. at 23 (citing Morrison, 529 U.S. 598; Lopez, 514 U.S. 549).

[13].       See e.g., Thomas More, 651 F.3d at 549-66 (Sutton, J., concurring in part).

Professor Arthur Hellman has called the JVCA “the most
far-reaching package of revisions to the Judicial Code since the Judicial
Improvements Act of 1990.”[2] The Act addresses a variety of
removal issues-including unrelated federal and state claims, multiple
defendants, removal of criminal cases, and the amount in controversy-and makes
several major changes to the law of venue. This essay addresses one of those
removal issues: the amount in controversy in a case removed from state court. I
argue that there are at least three respects in which the JVCA failed to
adequately clarify the law of diversity removal jurisdiction.

I. The Removal Problem

Federal jurisdiction in diversity cases requires that “the
matter in controversy exceed[] . . . $75,000, exclusive of interest
and costs.”[3] When the
plaintiff files the lawsuit in federal court in the first instance, this is
easy to establish. The complaint must contain “a short and plain statement of
the grounds for the court’s jurisdiction,” and will typically demand at least
that much money, plus allege facts sufficient to establish that such a sum
might be recoverable.[4]

But when the defendant seeks to remove a case that has
started out in state court (which he can do so long as the case could have been filed in federal court,
and so long as he acts promptly), two complications arise. One is that the
complaint will have been designed to comply with state laws of form, not
federal laws. In many states there is no requirement that the complaint demand
a particular sum of money.[5] Even if there is a stated amount, it
is not necessarily a binding cap on the plaintiff’s recovery.[6] Some states even forbid the naming of
a specific sum, apparently believing that lawyers will vie for publicity by
naming irresponsible amounts.[7]

The second complication is that the plaintiff has no
incentive to establish a large amount in controversy, because it is the
defendant who seeks federal jurisdiction. One should therefore not expect the
complaint to contain the information necessary to decide whether there is
jurisdiction to remove the case. Yet it is not always clear what other evidence
there will be, or what authority to
give such evidence when it exists.

The result has not been a model of jurisdictional
simplicity. While two federal appeals court opinions-McPhail v. Deere and Meridian
v.
Sadowski-have attempted to bring clarity to the doctrine,[8] the leading federal practice treatise notes that federal courts have
articulated at least eight different ways of analyzing the defendant’s burden
of establishing federal jurisdiction, optimistically adding that it “is
doubtful that these different verbal formulae represent a significant variation
in practice.”[9] The JVCA’s
Committee Report similarly notes “differing standards” in the federal courts
(without the optimism).[10] Even if all courts adjudicate these cases in the same way-which a scan of a
hundred district court decisions leads me to doubt-it is surely only after a
great deal of effort and some amount of good fortune.

The JVCA provides several rules in an attempt to solve
this removal problem. As an initial matter, the amount named “in good faith” in
the plaintiff’s complaint “shall be deemed to be the amount in controversy.”[11] However, the defendant can assert a different amount in controversy in the
notice of removal if the complaint seeks nonmonetary relief, or if “State
practice either does not permit a demand for a specific sum or permits recovery
of damages in excess of the amount demanded.”[12] If the defendant has asserted an amount in controversy in the notice of
removal, the district court must “find[] by the preponderance of the evidence,
that the amount in controversy exceeds” $75,000.[13]

The Act also makes two modifications to the deadlines for
removal. It clarifies that if the defendant discovers for the first time that
the case is removable through “information relating to the amount in
controversy in the record of the State proceeding, or in responses to
discovery,” he has thirty days to remove the case. Further, if “the district
court finds that the plaintiff deliberately failed to disclose the actual
amount in controversy to prevent removal,” it allows a “bad faith” extension to
the one-year maximum deadline for notices of removal.[14]

II. The Incompleteness of the JVCA

These provisions are improvements, yet incomplete in at
least three important respects. First, the JVCA provides no rule when state law
permits but does not require the plaintiff to name a specific
dollar amount. Recall that the JVCA allows the defendant to assert his own
assessment of the amount in controversy only if state practice “does not permit a demand for a specific sum” or
“permits recovery of damages in excess of the
amount demanded.” When state law is permissive, and the plaintiff doesn’t
name a dollar figure, neither provision is triggered: state law does “permit”
specific demands, and there is no “amount demanded.” Unfortunately, there are
many states whose practice falls into this category.[15]

Second, even when the defendant is permitted to assert his
own amount in controversy, the statute adopts a “preponderance of the evidence”
standard without explaining what that standard means. Some courts treat the
preponderance standard as if it expressed a presumption of narrow construction
against removal jurisdiction.[16] McPhail and Meridian criticized that view and instead interpreted the standard
to apply only to “contested facts”
that might be relevant to the amount in controversy, whereas “once those
underlying facts are proven, a defendant . . . is entitled to stay in
federal court unless it is ‘legally certain’ that less than $75,000 is at
stake.”[17] The Committee Report suggests that the bill was intended to codify the rule in McPhail and Meridian (a welcome solution by my lights).[18] But that intention is expressed only in the Committee Report, and many judges
are reluctant to give too much weight to such legislative history instead of to
the statute’s text.[19] If Congress really meant it, they could have inserted the holding of those
cases explicitly into the statute.

Third, however one interprets the preponderance of the
evidence standard, the JVCA does little to address the problem that such
evidence can be hard to come by within the schedule of the removal deadlines.
As McPhail explained,

in
most removal cases, there is little ‘evidence’ one way or another. In most
cases, the defendant must file a notice of removal within thirty days after
receiving the complaint. Pre-removal discovery in state court is unlikely to
have produced helpful information by then . . . . And if the
plaintiff moves quickly to challenge removal in federal court, there may not be
time to produce more evidence in federal discovery before the court decides to
rule.[20]

The evidence problem is exacerbated by the fact that the
defendant must work within a set of shifting deadlines and two discovery
regimes. The defendant’s deadline to file a notice of removal is thirty days
from the point at which he first discovers that the case is removable-perhaps
from reading the initial complaint, perhaps from subsequent discovery about the
plaintiff’s case in state court.[21] When the complaint does not demand a specific sum (or demands a “lowball,”
nonbinding sum), the defendant is in a bit of a bind. The defendant is only
supposed to wait for additional information “if the case stated by the initial
pleading is not removable.”[22] Yet the case stated by the initial pleading may well be removable (it certainly
does not rule out damages above
$75,000); the problem is that the defendant may not be sufficiently certain
that he will be able to prove it. So if the defendant waits to remove until
subsequent interrogatories in state court confirm the extent of the plaintiff’s
claim, he may well be too late.[23]

The JVCA’s solution to this problem is inadequate. The
section providing that “information relating to the amount in controversy in
the record of the State proceeding, or in responses to discovery, shall be
treated as an ‘other paper’ under [§ 1446](b)(3)”[24] (which would restart the removal clock) helps resolve a split over whether
depositions and similar documents constitute “other paper.”[25] But it does not deal with the fundamental deadline problem, because it is
triggered only if “the case stated by the initial pleading is not removable.”[26] The other section creating a bad faith exception to the one-year outside
deadline for removal[27] will presumably rein in some abusive practices, but it is still an exception
only to the outside deadline. Defendants must also comply with the thirty-day
deadline, which has no bad faith exception, and which is uncertain even when
there is no bad faith.

III. Clarifying the Clarification

A better version of the bill would not have left these
gaps. It would have explicitly dealt with states that neither forbid nor
require demanding a specific sum, presumably by including them in the new section
1446(c)(2)(a)(ii). It would have clarified its use of the preponderance standard,
ideally by providing that only facts (and presumably only facts not found in the complaint) need be proven by the
preponderance of the evidence, and that the ultimate amount in controversy is
any amount that it is legally possible to collect on the basis of those facts.
And it would have given the defendant a firmer opportunity to obtain evidence
to prove the amount in controversy to the district court-perhaps by saying that
the defendant need not try to remove the case right away if the complaint does
not name an amount in controversy,[28] by providing the defendant a right to discovery in federal court before the
removal petition is resolved,[29] or both.

It is not impossible for creative judicial interpretations of the JVCA to fill in these gaps as
Congress should have. Courts might think the purpose of section 1446(c)(2)(a)(ii)
is sufficiently obvious that it should be extended to states whose practice
does not forbid the naming of specific sums; they might find the Committee
Report’s endorsement of McPhail and Meridian sufficiently persuasive to
adopt those cases’ explication of the confusing preponderance of the evidence standard; and they might hold that a complaint
with no named sum is “not removable” for purposes of the time limit,[30] or that it is an abuse of
discretion for a district court to refuse removal without giving
adequate federal discovery. I do not wish to make the case against those interpretations
here, because I hope that courts will indeed find a way to adopt them. My point
is just that a statute aimed at jurisdictional “clarification” should not have
left those matters up for grabs.

To be sure, my criticisms are tentative and limited to
just one of the JVCA’s several provisions. But if I am right that the JVCA does
not adequately solve the problem of the amount in controversy in removal, I
worry that it may have similar shortcomings in other areas. To paraphrase Ed
Hartnett’s criticism of the restyled rules of civil procedure, “I don’t have
the chutzpah to claim that I caught everything [Congress] missed. If [Congress's]
distinguished members [and] advisors . . . missed things that I
caught, I have to believe that others will catch things that we all missed.”[31]

Judge Cardozo once lamented that “the legislature,
informed only casually and intermittently of the needs and problems of the
courts, without expert or responsible or disinterested or systematic advice . . .
patches the fabric here and there, and mars often when it would mend.”[32] The JVCA, by contrast, was prepared with extensive expert help and makes real
progress. But even experts are subject to political compromise. As the
Committee Report explained, more far-reaching reforms were contemplated as part
of the JVCA-one welcome reform would have allowed the plaintiff to make a
binding “declaration” that he sought no more than $75,000[33]-but
those proposals were rejected after a “vetting process” designed to eliminate
“provisions that were considered controversial by prominent legal experts and
advocacy groups.”[34] The apparent goal was to limit the bill to pareto-efficient changes-ones to
which nobody could raise a principled objection. But if the removal provisions
that Congress ultimately adopted are the best that can be produced under such
limitations, then maybe we cannot really restore rationality to the law of
federal jurisdiction without embracing some more “controversial” proposals.

           *Fellow, Constitutional Law Center, Stanford Law School. I appreciate prompt and helpful comments from Judge David Hamilton, Arthur Hellman, Judith Miller, and Stephen Sachs.

              [1].       Federal Courts Jurisdiction and
Venue Clarification Act of 2011, Pub. L. No. 112-63 (Dec. 7, 2011).

              [2].       Arthur
Hellman, Jurisdiction and Venue
Clarification Act, Prawfsblawg,
Dec. 2, 2011, http://prawfsblawg.blogs.com/prawfsblawg/2011/12/updated-jurisdiction-and-venue-clarification-
act.html. The committee report described Hellman as instrumental in
crafting the removal provisions. Report of the House Judiciary Committee, H.R.
Rep. 112-10, at 2 [hereinafter "Committee Report"].

              [3].       28 U.S.C. § 1332(a).

              [4].       Fed. R. Civ. P. 8(a).

              [5].       See, e.g., Ala. R. Civ. P. 8(a); Fla. R. Civ. P. 1.110(b); Tenn. R.
Civ. P. 8.01. The examples are discussed in Alice M. Noble-Allgire, Removal
of Diversity Actions When the Amount in Controversy Cannot Be Determined from
the Face of Plaintiff’s Complaint: The Need for Judicial and Statutory Reform
to Preserve Defendant’s Equal Access to Federal Courts, 62 Mo. L. Rev. 681, 686-87 (1997).

              [6].       Noble-Allgire, supra note 5, at 692.

              [7].       E.g., Colo. R. Civ. P. 8(a); Ind. R. Trial P. 8(a); N.J. R. Civ.
Prac. 4:5-2; S.C. R. Civ. P. 8(a); Wis. Stat. § 802.02(1m); see also Noble-Allgire, supra note 5, at 688-89.

              [8].       McPhail v. Deere, 529 F.3d 947
(10th Cir. 2008); Meridian v. Sadowski, 441 F.3d 536 (7th Cir. 2006).

              [9].       14A Wright,
Miller, & Cooper, Fed. Prac. & Proc. Juris. § 3702.2 (4th ed.).

            [10].       Committee Report, supra note 2, at 15.

            [11].       JVCA § 103(b)(3)(C), to be
codified at 28 U.S.C. § 1446(c)(2).

            [12].       Id., to be codified at 28 U.S.C. § 1446(c)(2)(a)(i)-(ii).

            [13].       Id., to be codified at 28 U.S.C. § 1446(c)(2)(B).

            [14].       Id., §§ 103(b)(3)(B), (C), to be codified at 28 U.S.C. § 1446(b)(3),
(c)(1), (c)(3)(B). I discuss these deadlines further in a few paragraphs.

            [15].       See supra note 5.

            [16].       See, e.g., Menendez v.
Wal-Mart Stores, Inc., 364 F. App’x 62, 65 (5th Cir. 2010); Gafford v. Gen. Elec. Co., 997 F.2d
150, 158 (6th Cir. 1993), abrogated on other grounds by Hertz Corp. v. Friend, 130 S. Ct.
1181 (2010); Armour v. Transamerica Life Ins., No. 11-2034, 2011 WL 1699281 (D.
Kan. May 4, 2011); Buffington v. Home
Depot USA, No. 10-cv-01933, 2010 WL 3307368 (D. Colo. Aug. 19, 2010); see also Meridian v. Sadowski, 441 F.3d
536, 542 (7th Cir. 2006) (noting other district courts that had imposed such a
burden).

            [17].       McPhail, 529 F.3d at 954; accord
Meridian, 441 F.3d at 543.

            [18].       Committee Report, supra note 2, at 16.

            [19].       See, e.g., Exxon Mobil
Corp. v. Allapattah Services, 545 U.S. 546, 568 (2005).

            [20].       McPhail, 529 F.3d at 953-54.

            [21].       JVCA § 103(b)(3)(B), to be
codified at 28 U.S.C. § 1446(b)(2)(B), (b)(3).

            [22].       Id., to be codified at 28 U.S.C. § 1446(b)(3).

            [23].       E.g., TIC-The Indus. v.
Liberty Mut. Ins., No. 09-763, 2009 WL 1796071 (D. Colo. June 23, 2009)
(defendant should have removed earlier).

            [24].       JVCA § 103(b)(3)(C), to be
codified at 28 U.S.C. § 1446(c)(1), (c)(3)(B).

            [25].       See Briant S. Platt, Section 1446(b) Federal Removal
Jurisdiction and the Thirty-Day Clock: Should A Motion To Amend Trigger the
Time Bomb?, 4 Nev. L.J.
120, 135 n.136 (2003) (describing split).

            [26].       JVCA § 103(c), to be codified
at 28 U.S.C. § 1446(c)(3)(A).

            [27].       Id., to be codified at 28 U.S.C. §§ 1446(c)(1), (c)(3)(B) .

            [28].       See, e.g., Noble-Allgire, supra note 5, at 750-51 (proposing statutory language).

            [29].       See Committee Report, supra note 2, at 16 (“[D]iscovery may be taken with regard to [the
amount in controversy].”); McPhail v. Deere, 529 F.3d 947, 954 (10th Cir. 2008)
(encouraging jurisdictional discovery). But
see Pub. Emps. Ret. Ass’n of N.M.
v. Clearlend Sec., 798 F. Supp. 2d 1265 (D.N.M. 2011) (dismissing McPhail as “dicta”).

            [30].       See, e.g., Harshey v.
Advanced Bionics Corp., No. 09-905, 2009 WL 3617756 (S.D. Ind. Oct. 29,
2009) (“The better approach is to require more of a removing defendant and to
give that defendant a reasonable opportunity to learn more about the scope of
the plaintiff’s claim.”).

            [31].       Edward A. Hartnett, Against
(Mere) Restyling, 82 Notre
Dame L. Rev. 155, 164-65 (2006).

            [32].       Benjamin N. Cardozo, A Ministry of Justice, 35 Harv. L. Rev. 113, 114 (1921).

            [33].       See 109 H.R. 5440, § 6 (2006); Arthur Hellman, The Federal
Courts Jurisdiction and Venue Clarification Act: Some Missing Pieces, JURIST (Jan. 4, 2012),
http://jurist.org/
forum/2012/01/arthur-hellman-jvca-ii.php.

            [34].       Committee Report, supra note 2,
at 2-3.

• Content Type Journal Article
• Pages 1-15
• DOI 10.1007/s10657-012-9299-2
• Authors
  • Antonio Nicita, University of Siena, Siena, Italy
  • Massimiliano Vatiero, IDUSI and IdEP, Università Svizzera italiana, Lugano, Switzerland

• Journal European Journal of Law and Economics
• Online ISSN 1572-9990
• Print ISSN 0929-1261

• Content Type Journal Article
• Pages 1-22
• DOI 10.1007/s10611-012-9363-4
• Authors
  • Arunas Juska, Department of Sociology, East Carolina University, Greenville, NC 27858, USA
  • Charles Woolfson, Linköping University, Institute for Research on Migration, Ethnicity and Society, Lingköping, Sweden

• Journal Crime, Law and Social Change
• Online ISSN 1573-0751
• Print ISSN 0925-4994

• Content Type Journal Article
• Pages 1-6
• DOI 10.1007/s11158-012-9178-2
• Authors
  • Peter Jones, Emeritus Professor of Political Philosophy, School of Geography, Politics and Sociology, Newcastle University, Newcastle upon Tyne, NE1 7RU UK

• Journal Res Publica
• Online ISSN 1572-8692
• Print ISSN 1356-4765

• Content Type Journal Article
• Category Book Review
• Pages 1-1
• DOI 10.1007/s10657-012-9300-0
• Authors
  • Juergen G. Backhaus, Krupp Chair in Public Finance and Fiscal Sociology, University of Erfurt, Nordhäuser Strasse 63, 99089 Erfurt, Germany

• Journal European Journal of Law and Economics
• Online ISSN 1572-9990
• Print ISSN 0929-1261

• Content Type Journal Article
• Category Book Review
• Pages 1-1
• DOI 10.1007/s10657-012-9302-y
• Authors
  • Juergen G. Backhaus, Krupp Chair in Public Finance and Fiscal Sociology, University of Erfurt, Nordhäuser Strasse 63, 99089 Erfurt, Germany

• Journal European Journal of Law and Economics
• Online ISSN 1572-9990
• Print ISSN 0929-1261

• Content Type Journal Article
• Category Book Review
• Pages 1-1
• DOI 10.1007/s10657-012-9304-9
• Authors
  • Juergen G. Backhaus, Krupp Chair in Public Finance and Fiscal Sociology, University of Erfurt, Nordhäuser Strasse 63, 99089 Erfurt, Germany

• Journal European Journal of Law and Economics
• Online ISSN 1572-9990
• Print ISSN 0929-1261

• Content Type Journal Article
• Category Book Review
• Pages 1-1
• DOI 10.1007/s10657-012-9303-x
• Authors
  • Juergen G. Backhaus, Krupp Chair in Public Finance and Fiscal Sociology, University of Erfurt, Nordhäuser Strasse 63, 99089 Erfurt, Germany

• Journal European Journal of Law and Economics
• Online ISSN 1572-9990
• Print ISSN 0929-1261

• Content Type Journal Article
• Category Book Review
• Pages 1-1
• DOI 10.1007/s10657-012-9307-6
• Authors
  • Juergen G. Backhaus, Krupp Chair in Public Finance and Fiscal Sociology, University of Erfurt, Nordhäuser Strasse 63, 99089 Erfurt, Germany

• Journal European Journal of Law and Economics
• Online ISSN 1572-9990
• Print ISSN 0929-1261

• Content Type Journal Article
• Category Book Review
• Pages 1-2
• DOI 10.1007/s10657-012-9305-8
• Authors
  • Juergen G. Backhaus, Krupp Chair in Public Finance and Fiscal Sociology, University of Erfurt, Nordhäuser Strasse 63, 99089 Erfurt, Germany

• Journal European Journal of Law and Economics
• Online ISSN 1572-9990
• Print ISSN 0929-1261

• Content Type Journal Article
• Category Book Review
• Pages 1-3
• DOI 10.1007/s10657-012-9306-7
• Authors
  • Jürgen G. Backhaus, Erfurt, Germany

• Journal European Journal of Law and Economics
• Online ISSN 1572-9990
• Print ISSN 0929-1261

• Content Type Journal Article
• Category Book Review
• Pages 1-1
• DOI 10.1007/s10657-012-9301-z
• Authors
  • Juergen G. Backhaus, Krupp Chair in Public Finance and Fiscal Sociology, University of Erfurt, Nordhäuser Strasse 63, 99089 Erfurt, Germany

• Journal European Journal of Law and Economics
• Online ISSN 1572-9990
• Print ISSN 0929-1261

A few days ago, a student-plaintiff represented by the American Civil Liberties Union, Jessica Ahlquist, experienced such local backlash after prevailing on her successful Establishment Clause challenge. This time, however, community backlash took a new spin. Instead of the standard hate-letter or losing a friend or two, local florists got in the mix in order to express their disdain over Ahlquist’s recent success in court.

On January 11, 2012 the Rhode Island District Court in Ahlquist v. City of Cranston announced that a prayer mural hanging in Ahlquist’s public high school auditorium violated the Establishment Clause. The mural includes the text of a school prayer that was routinely recited by students before the practice was invalidated by the U.S. Supreme Court’s hallmark school prayer decision in Engle v. Vitale (1962). It begins with sectarian phrases such as “Our Heavenly Father” and ends with the hallmark endorsement “Amen.” City officials, however, disclaim and sectarian religious affiliation by noting the mural is a historical artifact from the school’s early days and therefore serves no religious purpose. After all, it was merely a gift from the Class of 1963, graduating coincidentally one year after the Warren Court rang the death-knell for school prayer in Engle.

In finding the mural to violate the Establishment Clause, the court declared per Judge Ronald Lagueux that: “The purposes of the Prayer when drafted, and the Prayer Mural, when installed, were clearly religious in nature…. No amount of debate can make the School Prayer anything other than a prayer, and a Christian one at that.” The court accordingly granted a permanent injunction requiring the school to immediately remove the mural from the auditorium. Notably, Judge Lagueux also exclaimed the brave and courageous stand taken by Ahlquist against the Prayer Mural given the hostile response she faced and will likely continue to experience from the community.

As a token for her courageous action, the Freedom from Religion Foundation, an advocacy for the separation of church and state based in Madison, WI, attempted to send her a bouquet of flowers. Three florists located in Cranston—the city where Ahlquist lives, and one in a neighboring town, however, saw otherwise. Instead of fulfilling their historical role as bearers of good news, each florist rendered a new form of community backlash against Establishment Clause challenges by refusing to deliver thanks to Ahlquist.

According to a press release by the Freedom from Religion Foundation, all four florists refused to send Ahlquist flowers because of her recent success in the Prayer Mural case. See Here. The first shop, Floral Express, deceptively stated it was not available for business even though it answered the phone call. The owner of Floral Express then mentioned: “I am not able to fill this [order].” The second shop took it one step further: “I will not deliver to this person.” The third shop followed suit by unequivocally refusing to deliver only after hearing the flowers were intended for Ahlquist. And, the fourth shop, located outside Cranston, put the proverbial “cherry-on-the-top” by initially agreeing to take the order, but eventually refusing after patrons voraciously threatened to boycott the business if it delivered the flowers. As a result, the FFRF was forced to contact a far-distant shop in Putnam, Connecticut called Glimpse of Gaia, who not only agreed to deliver the bouquet to Ahlquist, but also threw in a second token bouquet with its own message: “Glimpse of Gaia fully supports our First Amendment and will not be bullied by those who do not. Here’s to you, Jessica Ahlquist.”

Many of the florists who denied delivery have ostensibly justified their actions upon non-discriminatory grounds. Local newspapers report that Raymond Santill, the owner of Flowers by Santil, one of the companies the FRFF attempted to order from, rejected the delivery because the person delivering the flowers would need police protection and identification to enter the home. Santil further averred that as the owner of the store he has the right to deliver or not to deliver to whomever he pleases. See Here. Similarly, the owner of Twin Florists, Marina Plowman, echoes Santil in stating: “I just chose not to do it. Nothing personal, it was a choice that I made. It was my right, so I did that. I’m an independent owner and I can choose whoever I want, whenever I want.” Id.

The Freedom from Religion Foundation, however, believes otherwise. And, they may be rights according to Rhode Island law, which offers heightened protection for religious liberties. Stemming back to Rhode Island’s religiously tolerant roots, Rhode Island General Law 11-24-2 makes it unlawful for a place of public accommodation to discriminatorily deny services on account of religion. According to the Freedom from Religion Foundation, then, the florists clearly violated this state law by refusing to deliver to Ahlquist because of atheist beliefs. The Commission for Human Rights in Rhode Island is currently investigating the matter in light of these allegations.

While it remains unclear whether additional litigation will ensue as a result of the florists’ discrimination against Ahlquist, one thing remains certain: student-plaintiffs often face backlash from a myriad of sources within their local communities in response to their Establishment Clause challenges. Thankfully, though, students such as Jessica Ahlquist are courageous enough to stand up for their First Amendment rights in the face of such community hostility. Kudos to you, Jessica Ahlquist.

This article explores a number of legal and commercial issues relating to ecolabels, which are signs used with products to indicate their environmental preferability.

The contours of the ecolabel right are uncertain, due partly to an apparent duality in essential function where an ecolabel is also used as a trade mark.

The remarkable growth in ownership and use of ecolabels is fuelling renewed debate about their status at law, impact on trade, and actual contribution to environmental protection.

However, in reality various factors can conspire against achievement of this aim, including commercial pressures – IP licences will often form part of a suite of documents agreed in relation to a wider transaction – time pressure and lack of communication. This can render an executed IP licence unclear, inaccurate, incomplete and unreflective of the agreement between the parties.

In this article we examine various approaches to the post-contractual plugging of gaps in IP licences.

The Indian Patent Act 1970 has come a long way from its genesis in the Ayyangar Committee Report of 1956, through the TRIPS Agreement, to its present day avatar. The Act, amended six times from 1999 to 2006, has sought to bring in checks and balances to prevent an absolute monopoly over patent rights and anti-competitive practices.

In this article the author explores the provisions of the Act, from the incorporation of a Bolar-like exemption, to the cautious inclusion of the highly debated Section 3(d) to prevent the evergreening of patents, to compliance with the Doha Declaration. The Patent Act includes a series of provisions to ensure that the commercialization of patents is of benefit to society.

In particular the author discusses licensing and whilst the Act is largely silent on voluntary licensing, six of its provisions may be construed as non-voluntary forms of licensing.

In this article the authors discuss the benefits of alternative dispute resolution (“ADR”) over litigation in resolving patent infringement, licence and other technology-related disputes.

The benefits of ADR and the numerous different paths that can lead parties to a dispute to ADR are accelerating its use. In this article the authors discuss the various paths and also the different types of ADR that are available, including for example, mediation and arbitration.

The authors provide readers with practical advice concerning best practice for making ADR work, concluding that it is here to stay and will probably continue to grow in importance given rising costs associated with traditional litigation.

In broad terms, free and open source software (FOSS) is software where the copyright in the code is licensed in a way that allows fairly unfettered use, reproduction and modification. There is, though, some tension–at least a perceived tension–between trade mark law, which can be and is used to limit the distribution of software, and the freedom that is the heart of FOSS principles. This article briefly explores the relevant legal doctrines that guide use of trade marks for free and open source software.

While FOSS licences allow the copyright in the code to be freely shared, the same is not true of the trade mark. The owner of a trade mark for free and open source software has discretion, within limits, to decide the parameters of others’ use of its trade mark.

The article will give the reader a better understanding of the free and open source software culture and the challenges a practitioner might face in advising the FOSS trade mark owner on trade mark enforcement in the industry.

This article examines patent entitlement and invention assignment in light of the recent University of Western Australia v Gray and The Leland Stanford Junior University v Roche Molecular Systems cases.

While the Gray case found that the employment contract of academic employees has special features that prevent the implication of a term vesting ownership of inventions in the employer, those features may have general application, meaning that employers should no long rely upon the implied term to ensure title to inventions.

The Roche case, though decided on the basis of settled contractual and patent law principles, establishes that the Bayh-Dole Act does not vest ownership of inventions created with federal funding in the employer, nor does it disrupt those settled principles. Employers should ensure that express vesting clauses in employment contracts are operative as at the creation of any invention.

This year’s Symposium is co-sponsored by Stanford’s Center for Internet and Society and will examine First Amendment challenges in the Digital Age. The first panel will explore European and American views of a right to be forgotten and how to balance privacy with free expression. The second panel consists of a discussion of First Amendment architecture, protection of speech spaces, and net neutrality. The third panel will examine Protect-IP and SOPA from a First Amendment perspective.

The Symposium will culminate with STLR’s 15th Anniversary Reception in the Neukom Building Faculty Lounge from 5:00 pm – 6:00 pm, co-sponsored by the Palo Alto offices of Morrison Foerster and Baker & McKenzie.

There has been overwhelming interest in this year’s Symposium and we have reached our capacity. Registration is now closed. The full schedule is available here.

Matthew Shardlake is a fictional lawyer at Lincoln’s Inn in sixteenth-century London. He is also a first-rate detective who reluctantly attempts to unravel some of the most important mysteries of the time while navigating the treacherous political waters of Tudor England. Shardlake is the brainchild of British lawyer-turned-author C.J. Sansom. Through a series of five novels, readers have watched as Shardlake takes the qualities that make him a successful lawyer and employs them in the task of solving crimes.

The Shardlake series began with Dissolution, a murder mystery set against the backdrop of King Henry VIII’s dissolution of British monasteries in the first half of the sixteenth century.^[2] In each subsequent installment of the series, Shardlake reluctantly undertakes to solve a new mystery. The second novel, Dark Fire, was the first to feature any real insight into Shardlake’s law practice. There, readers got to see Shardlake do battle in court with Stephen Bealknap, “a false and greedy rogue.”^[3] The subsequent novels, including the most recent, Heartstone, have provided readers with greater insight into Shardlake’s practice of law. Sansom views his creation as a person of honesty and integrity.^[4] Indeed, as one reads the series, it becomes clear that Shardlake is meant to serve as the embodiment of many of the most cherished ideals of the legal profession. In other words, Sansom views Shardlake as a symbol of professionalism.

“Professionalism” has become a buzzword in the legal profession over the past few decades. However, there is considerable debate as to what exactly the concept entails and how it applies. There can be little doubt that Shardlake is fundamentally a decent and honest person and an outstanding lawyer. And at a time when the legal profession craves role models—real or fictional—it stands to reason that as the series gains popularity, more will point to the sixteenth-century Shardlake as a role model and symbol of professionalism for twenty-first-century lawyers.^[5]

Yet, we also live in a time when it is difficult to retain one’s status as a role model: Witness the numerous revisionist articles questioning the actions of beloved fictional hero Atticus Finch, an inspiration to many lawyers.^[6] If Shardlake is to serve as a symbol of the core values of the legal profession, he must withstand similar scrutiny.^[7] A close examination of Shardlake’s actions, however, produces mixed results in terms of his status as a role model for twenty-first-century lawyers. But more importantly, the series illustrates the dif­ficulties in crafting a coherent definition of professionalism. Ultimately, the dilemmas Shardlake faces and his responses to those dilemmas provide lawyers with the opportunity to reflect upon the ethical conundrums present in modern practice and the varying conceptions of professionalism within the legal field.

I. “I Present Master Matthew Shardlake, the Sharpest Hunchback in the Courts of England”^[8]

Longtime readers of the Shardlake series have had five novels to get to know Shardlake. They have seen Shardlake solve a murder in a monastery, seek out a sixteenth-century weapon of mass destruction, get thrown in the Tower of London, and track down a serial killer. However, readers new to the series are likely to find Shardlake accessible, particularly if they are lawyers themselves.

Shardlake is primarily a property lawyer. Originally a true believer in the Reformist cause that led to King Henry VIII’s schism with the Roman Catholic Church, Shardlake begins to lose his fervor by the end of the first novel, and he increasingly encounters questions of faith more generally as the series progresses. However, much of his success as a lawyer is due to his Reformist connections, a fact those in power sometimes exploit to pressure Shardlake into doing their bidding. By the beginning of the fourth novel in the series, Shardlake has advanced from barrister to serjeant, the highest rank of lawyers and the class from which judges are selected.^[9] By the end of the fourth novel, Shardlake has the patronage of none other than Queen Catherine Parr.

Many of the jokes Shardlake hears about lawyers are the same that modern lawyers are accustomed to, and his tolerance for such jokes is about as limited as that of many modern lawyers.^[10] Although he is sometimes mocked by others for being an idealist,^[11] Shardlake is more than a little cynical when it comes to the law and its practice. For example, he is not particularly fond of London during Reform because it is filled with “fanatics and cozeners . . . [a]nd my profession has enough of both.”^[12] In darker moments, his cynicism extends to the law itself. For example, when one of Shardlake’s assistants suggests that the truth will prevail in a matter, Shardlake responds, “[Y]ou have not spent a lifetime around His Majesty’s courts to say that.”^[13] However, despite his sometimes melancholy nature, Shardlake occasionally manages to profess a belief in the power of the law to bring about justice. He enjoys “using the law to right wrongs. Where one can.”^[14]

Among Shardlake’s other traits are his intelligence and doggedness. Other characters often remark on Shardlake’s cleverness and his ability to untan­gle com­plicated puzzles. However, Shardlake’s talents in this area are as often the result of hard work and determinedness as they are of innate intelligence. Shardlake is a bulldog. In Dissolution, for example, Shardlake tells the story of a former evidence teacher: He had a saying. “In any investigation, what are the most relevant circumstances? None,” he would bark in reply. “All the circums­tances are relevant, everything must be examined from every angle.”^[15] Shardlake’s investigative techniques are guided accordingly. This doggedness and attention to detail also characterizes Shardlake’s approach to the practice of law: “Lawyers must spend their time adumbrating details, however sordid,”^[16] Shardlake advises, and they must base their decisions on “detachment [and] reason,” not instinct.^[17]

Shardlake’s defining characteristic, however, is his kyphosis; Shardlake is, in his own words, a “hunchback.”^[18] Shardlake developed the condition at an early age and was subjected to taunts and abuse from other children. These taunts and abuse follow Shardlake into adulthood, and he is routinely subjected to insults about his physical impairment throughout the series.^[19] Indeed, in Sovereign, Shardlake is subject to public mockery for his impairment by none other than Henry VIII himself.^[20]

Sansom has stated that he wanted his protagonist to be “‘apart’ from his time,” so as to better serve as an interpreter of the sixteenth century for the modern reader.^[21] After a lifetime of abuse, Shardlake has low self-esteem and is highly conscious of his physical impairment. However, Shardlake’s disability has had other, more positive effects. Knowing “only too well what it was like to be a despised outsider,” Shardlake has a kind heart and a strong desire bor­dering on need to assist the less fortunate. This trait also helps define Shardlake as a lawyer. Throughout the series, Shardlake frequently devotes some of his practice to assisting poor or otherwise disadvantaged clients.^[22]

II. “England’s Law Is a Rack in a Cellar!”^[23]

Although Sansom has said he is unsure why he gave Shardlake a hunchback, he has speculated that “perhaps it symbolizes the weight he carries as a person of integrity in that grim time.”^[24] To fully appraise Shardlake’s professional integrity, one must put the practice of law during Shardlake’s time in context. Although the lawyers of Shardlake’s time were subject to a number of external regulations, the pressure to conform to the prevailing norms of the legal profession were at least as powerful. In this respect, modern lawyers should find a ready parallel. However, the series also depicts Shardlake and his colleagues facing the challenge of practicing law in an age when the rule of law had little meaning to many in power.

A. Formal Regulation of the Legal Profession

The lawyers of Shardlake’s time were subject to a number of forms of external regulation. By virtue of their inherent authority over the court system, judges could impose discipline upon lawyers for misconduct.^[25] In addition, Shardlake and his brethren were subject to a number of statutes regulating the legal profession.

The first significant regulation of the legal profession in England was the Statute of Westminster of 1275.^[26] The statute as a whole addressed a variety of litigation abuses by court officials and lawyers.^[27] Most notably, Chapter 29 prohibited a lawyer from engaging in “any manner of deceit or collusion” and made the offense punishable by imprisonment and prohibition from ever appearing again in the court in question.^[28] The term “deceit” was construed broadly to cover not simply common law fraud, but false statements to the court, overzealousness, conflicts of interest, and breaches of client confidentiality as well.^[29] According to Jonathan Rose’s exhaustive study, sanctions imposed under Chapter 29 “varied from disbarment and imprisonment for a year and a day, to imprisonment only, a shorter imprisonment, temporary suspensions of different lengths, or a fine.”^[30]

A lawyer practicing in London during Shardlake’s time may also have been subject to the London Ordinance of 1280. The Ordinance regulated the right of serjeants to appear in the London courts by excluding those who “do not reasonably understand their profession.”^[31] The Ordinance also contained spe­cific prohibitions on misconduct, including representing a client whose interests were adverse to a former client in the same matter^[32] and champerty and mainten­ance.^[33] Another statute, Statute 4 Henry IV, Chapter 18 (1402), applied to all royal courts.^[34] According to Rose, the statute “focused primarily on regu­lating attorney admission, although it also dealt with their misconduct.”^[35] Given the number of “falsifications, deceits and nullifications” by lawyers and the number of lawyers who had “learned little or nothing of the law,” the statute required that attorneys pass a judicial examination.^[36]

Attorneys also took the following oath under the 1402 Act:

You shall doe no Falsehood nor consent to any to be done in the Office of Pleas of this court wherein you are admitted an Attorney. And if you shall know of any to be done you shall give Knowledge thereof to the Lord Chief Baron or other his Brethren that it may be reformed you shall Delay no Man for lucre Gain or Malice you shall increase no fee but you shall be contented with the old Fee accustomed. And further you shall use your self in the Office of Attorney in the said office of Pleas in this Court according to your best learning and discretion. So help you God.^[37]

Especially noteworthy is the fact that, in addition to swearing to avoid falsehoods, a lawyer swore to make a report of another attorney’s falsehoods. Thus, lawyers of the time had a reporting obligation at least somewhat comparable to American Bar Association (ABA) Model Rule 8.3(a)’s requirement that a lawyer who knows of another lawyer’s serious misconduct inform the appropriate disciplinary authorities. Indeed, these positive expres­sions of a lawyer’s ethical obligations suggest that lawyers of Shardlake’s age were subject to duties that, at least on the surface, are similar to those of twenty-first-century lawyers.

B. The Inns of Court and the Legal Profession of the Time

In addition to formal regulation of the legal profession, lawyers in Shardlake’s time were subject to the prevailing norms and unwritten rules within the profession. For British lawyers in the sixteenth century, these norms were driven in large measure by the culture of the Inns of Court.^[38] The collegial nature of the present-day Inns has been described as “providing a ‘powerful deterrent’ against deviations from barristers’ standards of professionalism.”^[39] Given the more insular nature of the Inns and the legal profession during Shardlake’s time, one can only surmise that the Inns had an even greater deterrent effect on conduct deemed to be inconsistent with the then-prevailing norms of the legal profession.^[40]

The Inns served a number of functions, including qualifying their members to practice in court.^[41] Although aspiring lawyers certainly learned the law at the Inns,^[42] Wilfrid R. Prest has argued that the Inns were not “educa­tional institutions first and foremost.”^[43] Described by one author as part club, part college, and part trade union,^[44] the Inns shaped lawyers’ sense of professionalism—and hierarchy—in various ways. Members and students resided at the Inns^[45] and ate meals in a hall at tables ordered by rank: The benchers, the senior members who actually ruled the house,^[46] were served first, followed by the barristers, and finally the students.^[47]

The benchers were responsible for maintaining discipline.^[48] There were rules regulating numerous aspects of life in the Inn, including proper dress, the wearing of beards, and the appropriate length of hair.^[49] Although there was relatively little attempt by the benchers to regulate the personal lives of their subordinates during Shardlake’s time, the benchers did insist upon a proper showing of deference.^[50] One of the more frequently punished offenses was “insolence.”^[51] In Dark Fire, for example, one of Shardlake’s brethren faces the prospect of a heavy fine and disbarment for breaking “all the rules of courtesy” by engaging in a public disagreement with the Duke of Norfolk at a formal gathering at Lincoln’s Inn.^[52] Deference was also expected of a barrister in his professional life. According to Prest, “no barrister could appear in court against a bencher of his own inn” without permission.^[53]

As portrayed in the Shardlake series, this devotion to professional courtesies extended beyond mere politeness and illustrates what James Moliterno has referred to as the “‘take care of one another before all other interests’ [moral] understanding that naturally results from the sort of in-breeding that once dominated the profession.”^[54] For example, when Shardlake represents a client in a landlord–tenant dispute against his nemesis Bealknap, who has acted as the sixteenth-century equivalent of a slumlord, Bealknap expresses outrage at the idea that Shardlake would “take a fellow barrister to court!”^[55] Shardlake winds up being shunned by some of his fellow lawyers at Lincoln’s Inn for offending “professional solidarity” in bringing the action against Bealknap. Part of Bealknap’s incredulity at being sued stems from his belief that “professional solidarity” works to the interest of all lawyers: “The system works to all our advantage and there is much gold to be made with little effort if one chooses the easy path.”^[56]

Obviously, if helping a client sue a fellow lawyer amounted to a breach of professionalism in the eyes of some lawyers during Shardlake’s time, reporting a fellow lawyer’s professional misconduct is hard to imagine, despite the formal ethical obligation to do so. For instance, Bealknap has a paid “ring of com­purgators” who provide false declarations at Bealknap’s request. Bealknap’s “sideline was well known throughout Lincoln’s Inn, but no barrister would ever inform against another member of the profession.”^[57] Shardlake eventually threatens to report Bealknap’s sideline, despite the fact it would mean that his “name [would] stink in Lincoln’s Inn” since “[l]awyers aren’t supposed to report each other.”^[58]

Over time, the Inns developed their own disciplinary systems for dealing with professional misconduct.^[59] There is some suggestion in the Shardlake series that the benchers at Lincoln’s Inn responded to complaints of professional misconduct as well as transgressions of professional courtesies and codes of conduct within the houses. For example, in Dark Fire, Shardlake threatens to bring Bealknap “up before the secretary” at Lincoln’s Inn for maintaining his ring of compurgators.^[60] But the historical descriptions of the disciplinary system of the Inns during Shardlake’s time tend to focus almost exclusively on misconduct within the Inns themselves and other violations of professional courtesies.^[61] Thus, the evidence suggests that the benchers were more heavily focused on enforcing good behavior and the behavioral norms of the profession than they were on standards of professional conduct.^[62]

C. The Culture of the Time and Its Impact on the Law

Finally, one must also consider Shardlake’s actions within the climate of the reign of Henry VIII. Throughout the series, King Henry and his advisors show little regard for the truth or due process of law. Wives are dispensed with as the King desires, and political opponents are locked up and tortured under false pretenses. Shardlake is himself falsely imprisoned and tortured in the Tower of London based on a false oath procured by a politically powerful official.^[63] All the while, King Henry vacillates on the subject of religion while religious extremism prospers, causing much cynicism among the common people.^[64]

The Shardlake series depicts life during this period as exceedingly harsh. Therefore, it is hardly surprising that there is a general lack of respect for the law and its institutions in Shardlake’s world. Judicial corruption appears to simply be an unpleasant reality with which lawyers must contend.^[65] In Heartstone, for example, the systemic corruption of the Court of Wards is central to the plot. Shardlake is advised early on to be prepared to pay bribes in his dealings with the court, and the clerk of the court is actually bold enough to inform Shardlake as to the going rate for a particular form of assistance.^[66] In Dark Fire, Shardlake’s case against Bealknap is heard by Judge Heslop, “a lazy-minded fellow” with “a poor reputation for honesty,” who arguably has a conflict of interest in the matter and whom Shardlake suspects of having been bribed.^[67] Yet, Shardlake is left simply to curse his luck that he “had drawn a low card in the gamble of the law” after he loses.^[68]

There is a general cynicism concerning the legal system among lawyers and non-lawyers alike in the series. Shardlake’s primary adversary, Bealknap, at one point remarks, “The world is a battleground, predators and prey. The rules and conventions of the law only disguise the fact.”^[69] Less detestable characters—both lawyers and non-lawyers—express similar sentiments about the law and its ability to bring justice in such a world. Toward the end of Dissolution, one character accurately sums up the depressing state of the law as depicted in the Shardlake series: “England’s law is a rack in a cellar!”^[70]

Present-day lawyers are certainly familiar with this type of cynicism toward the law and its practice. Every lawyer knows a colleague with a view of the legal profession like that of Bealknap’s. But the level of cynicism and corruption that Shardlake confronts is also undoubtedly greater than that faced by present-day attorneys. Indeed, this is part of what makes Shardlake’s struggle throughout the series to remain an individual of personal and professional integrity so entertaining for lawyers in particular.

III. The Professionalism of the “Sharpest Hunchback
in the Courts of England”^[71]

There can be little doubt that C.J. Sansom views his fictional hero as a role model for twenty-first-century lawyers. Throughout the series, Shardlake is at odds with the prevailing norms of the legal profession, and it is clear that the reader is meant to take Shardlake’s side in the dispute. Shardlake is unques­tionably a person of integrity, and this fact undoubtedly makes the series as a whole more appealing to lawyers.

But what ultimately makes the Shardlake series so intriguing for lawyers is Sansom’s ability to use the sixteenth-century Shardlake as a mirror for the prac­tice of law in the twenty-first century. For example, for most modern American lawyers, the Tower of London holds little meaning. But the words “Guantanamo Bay” and “torture memos” can trigger heated debate about the role lawyers may properly play in assisting clients. Therefore, modern lawyers can hardly avoid the moral and ethical ambiguity present when, in Sovereign, Shardlake does the bidding of the King’s advisors and helps transport a political prisoner to the Tower of London to be tortured for information.

The Shardlake series deals with fundamental issues of what it means to be an ethical and professional lawyer that have bedeviled the legal profession for centuries. Shardlake’s ethical dilemmas invite modern lawyers to stand, however briefly, in his shoes and consider their own response. In the process, the series helps illustrate the considerable debate within the legal profession as to how these issues should be resolved given the ambiguity inherent in the term “professionalism” as applied to the legal profession.

A. Defining Professionalism

“Professionalism” is an elusive concept.^[72] The term is intended to convey something beyond mere compliance with the disciplinary rules to which all lawyers are subject. The professionalism movement gained prominence as part of a response to the perception that too many lawyers engage in a form of win-at-all-costs, overzealous lawyering, including the use of “Rambo-style litigation tactics” and general incivility.^[73] Thus, rather than offering a concrete meaning, the term is in some ways almost the anti-definition of a particular form of objectionable lawyering.

Supporters of the professionalism movement have attempted to provide at least some independent definition of the term, however. In the litigation context, for example, one author has suggested that to “conduct litigation ‘profes­sionally’ . . . means to abide by the rules and ideals of the adversarial system.”^[74] Synthesizing various statements of the principles of professionalism, another author defines professionalism, in part, as striving to realize “the core values and ideals of the legal profession.”^[75] Of course, this begs the question of what those ideals are and whether there is, in fact, agreement about them. At a broad level of generality, there is agreement as to the core values of the legal profes­sion, such as competence, loyalty to clients, maintaining client confidentiality, and serving the public good.^[76]

However, as discussed in greater detail in the following Subpart, critics have charged that the professionalism movement overlooks the reality that there are competing conceptions as to how these values should be applied.^[77] Critics have also argued that the professionalism movement’s focus on civility undermines the legitimate and fundamental value of zeal on behalf of a client.^[78] They further charge that the professionalism movement seeks a “return” to a fictitious and idealized era in the legal profession in which nearly all lawyers were principled, competent, and courteous.^[79]

B. Shardlake as a Model of Professionalism

Compliance with ethical standards is intertwined with the concept of professionalism. To at least some extent, however, the question of whether Shardlake is a model of ethical lawyering raises a question separate and apart from whether Shardlake embodies the values of the legal profession. An examination of the Shardlake series yields some uncertain answers, both as to Shardlake and as to what it means to be an ethical and professional lawyer.

1. Shardlake as an Ethical Role Model

Throughout the series, Shardlake engages in a number of ethically questionable courses of action. While this fact alone most likely precludes Shardlake from being offered as a model of an ethical lawyer for today’s time, one must put his actions in context. Unlike Atticus Finch, Shardlake is the hero of a mystery series, a genre that permits and sometimes requires its heroes to engage in limited forms of deceit. Thus, some of Shardlake’s ethical transgres­sions (such as breaking and entering during the course of an investigation^[80]) are of the type readers expect from their fictional detectives; without them, the plot could not develop. For another, for virtually every one of his possible ethi­cal trans­gressions, Shardlake makes a correct (and sometimes difficult) ethical choice, such as resisting the pressure of a powerful official to file a false report in a homicide investigation.^[81] Finally, Shardlake’s actions must be considered within the context of his time.^[82] For example, in Heartstone, Shardlake bribes the clerk of the Court of Wards in order to gain his help in the wardship matter. By modern standards, Shardlake’s actions would be considered outrageous. Yet the reality for Shardlake is that corruption in the court is not only widespread, but intertwined with procedures of the court. As depicted, a lawyer simply could not function if he were not willing to pay the occasional bribe.

Some of Shardlake’s ethical missteps, however, involve more complicated questions of professional conduct and force readers to examine their own views as to what it means to be an ethical person and lawyer. For example, in Heartstone, Shardlake lies to authorities about the discovery of evidence in order to reopen an investigation into a cold homicide. As his assistant Barak points out, Shardlake’s actions amount to perjury.^[83] Admittedly, Shardlake is moti­vated by a desire to assist an individual confined in Bedlam, the London mental hospital, and to see the truth come out concerning a murder that he suspects involves an elaborate conspiracy of silence. But does this excuse the clear ethical violation? There is considerable disagreement within the legal profession as to whether the use of deception is ever ethically permissible in the course of an investigation in order to gather evidence that would be difficult to uncover otherwise.^[84] Modern lawyers have faced professional discipline for engaging in rule violations in an attempt to bring about what is clearly a public good.^[85] And modern lawyers continue to argue about whether it should be ethically permissible for a lawyer to elicit perjured testimony while representing a criminal defendant.^[86] Ultimately, Shardlake serves not so much as an ethical role model, but as a device to force readers—and particularly readers who happen to be lawyers—to reflect on what it means to be an ethical lawyer and to consider that “ethics” is not always simply a matter of looking to the disciplinary rules governing lawyers.

2. Shardlake as a Model of Professionalism

More interesting than the question of whether Shardlake can serve as an ethical role model, however, is the question of whether Shardlake can be held up as a symbol of professionalism when judged by modern standards. Of course, ethics cannot be divorced from professionalism. But the concept of profes­sio­nalism involves more than compliance with the ethical standards of the profession. Shardlake certainly embodies some of the core values of the legal profes­sion: He is willing to represent those who cannot afford legal repre­sentation;^[87] he is willing to represent those who are the targets of public scorn;^[88] he is highly competent;^[89] and he is clever and (more importantly) diligent.^[90]

Like many supporters of the professionalism movement, Shardlake detests those lawyers who make their way “by bullying and bluff.”^[91] Through the first four novels, Shardlake’s frequent nemesis, Bealknap, serves to embody the type of overly combative lawyer that modern-day civility codes seek to address. In Heartstone, Shardlake’s courtroom opponent, Vincent Dyrick, serves that same role. Shardlake describes Dyrick as one “who knows no other way of being other than aggression.”^[92] Dyrick, the Rambo-type lawyer, views Shardlake’s sympathetic nature as a sign of weakness.^[93] Yet, readers of the series know that Dyrick is mistaken and that Sansom has created a character in Shardlake who, although he may have a soft heart, will not back down in the pursuit of his client’s interests.

Thus, supporters of the professionalism movement might be expected to embrace Shardlake and to hold him up as an example for present-day lawyers. However, a full portrait of Shardlake is somewhat more complicated. Ultimately, some of Shardlake’s actions and the dilemmas he confronts illustrate the tensions inherent in any definition of “professionalism.”

a. Zealous Advocacy

Shardlake’s core professional value is placing his clients’ interests above the interests of others. Shardlake notes that fighting for his clients is his “life’s work.”^[94] For Shardlake, loyalty to one’s clients equates to professional integrity, which he views as his “badge” and “identity” in “the often corrupt world of the law.”^[95] Historically, the legal profession has treated loyalty to clients as a fundamental value; thus, to some, the essence of professionalism is for a lawyer to “zealously and competently use all lawful means to protect and advance the client’s lawful interests as the client determines those interests to be.”^[96] Shardlake is a tireless advocate for his clients and is willing to endure great personal sacrifice—including torture in the Tower of London—on their behalf. Moreover, Shardlake adopts this client-centered approach to lawyering in the face of a legal profession that (in Shardlake’s semi-fictional world at least) is decidedly lawyer-centered and that looks after the interests of its own. Thus, Shardlake’s devotion to his clients is all the more impressive.

Yet, Shardlake’s devotion to zealous representation also illustrates some of the difficulties associated with the legal profession’s attempts to define the concept of professionalism. There is considerable debate as to whether a client-centered approach to lawyering should be the central component of professionalism.^[97] Critics have challenged the idea that a lawyer should use all lawful means to advance a client’s interests no matter how objectionable or counterproductive those interests might ultimately be. This conception of lawyering, critics argue, has led to overzealous representation and the tendency for lawyers to think of themselves solely in terms of hired guns, thereby avoiding any of the difficult moral questions that their actions raise.^[98] Commentators have raised concerns that the mantra of “zealous advocacy” has been used to justify dishonest and uncivil behavior in the litigation context and to justify lawyers’ dubious advice to their clients on questionable courses of conduct.^[99]

The Shardlake series reflects this tension as to the true meaning of professionalism. For example, in Sovereign, Shardlake refuses to drop a client’s appeal despite receiving tremendous pressure from powerful figures to do so. Yet Shardlake himself eventually wonders whether his refusal is based on a desire to further his client’s interests or a personal need to maintain his “badge” as an individual of integrity.^[100] A similar theme emerges in Heartstone when Shardlake refuses to abandon a matter, despite receiving instructions to do so from the party who enlisted him. The party in this instance is no less a figure than the Queen of England.^[101] As a result, the reader is left to wonder whether Shardlake’s personal need to see justice done has interfered with his inde­pendent professional judgment. While Shardlake is certainly diligent, the episode illu­strates the fine line between self-interest and devotion to one’s client. As discussed below, at least two other episodes in the series highlight the legal profession’s difficulties in settling on an acceptable formulation of “profes­sio­nalism” and the complications in relying on Shardlake as a symbol of professionalism.

b. The Bealknap Continuance Dilemma: Responding to a Request
for an Extension of Time

In Revelation, Shardlake is again set to face Bealknap in court, this time in an adverse possession matter in which Shardlake represents a squatter and Bealknap the landlord. Bealknap approaches Shardlake before court and confesses that he has not filed his client’s required proof of title to the land because he lost the deeds; he asks Shardlake to adjourn the case until Bealknap is able to find the papers. In doing so, Bealknap makes a direct plea to Shardlake’s sense of professional loyalty: “‘Assist me, Brother Shardlake,’ he whispered desperately. ‘Assist a fellow-lawyer.’” Shardlake responds by observing that “[m]any lawyers would have helped him for the sake of the fellowship of the bar; but I had always set my face against such arrangements at a client’s expense.”^[102] Thus, Shardlake refuses, citing his duty to his client. Bealknap, being Bealknap, lies to the judge about why the papers were not filed, gets caught in the lie, and has his case dismissed.

On one hand, faithful readers of the series have little sympathy for Bealknap to begin with, and even less after he attempts to lie to the judge. But Bealknap had also been seriously ill prior to the events, a fact of which Shardlake was aware; therefore, Bealknap’s failure to file may have been the result of excusable neglect. Moreover, by his own admission, Shardlake had only some “rather shadowy precedents” in support of his client’s position.^[103] There is no suggestion that Shardlake based his refusal on the fear that Bealknap might take the extra time to fabricate the deeds, nor does there appear to be any dispute that Bealknap’s client, in fact, possessed the deeds to the property. In light of these facts, should Shardlake have agreed to postpone the matter and let the case be decided on the merits?

The answer might depend on one’s view of professionalism. Shardlake’s client-centered conception of the term involves placing a client’s interest above “the fellowship of the bar.” Obviously, it is or should be a fundamental value of the legal profession that lawyers should generally place the interests of their clients above the interests of others.^[104] Yet some lawyers—perhaps not all even supporters of the professionalism movement—would argue that a lawyer in Shardlake’s situation should accommodate the request of the other lawyer. Numer­ous jurisdictions and professional associations have adopted lawyer civility codes, some of which deal with issues related to obtaining dismissals and default judgments.^[105] Many of these codes convey the idea that “[f]irst requests for rea­sonable extensions of time to respond to litigation deadlines . . . should ordinarily be granted as a matter of courtesy unless time is of the essence, or the client would be disadvantaged,” even if the other lawyer has refused to extend the same cour­tesy in the past.^[106] Thus, lawyers striving to live up to the core values of the profession, when confronted with Shardlake’s Bealknap dilemma, may find themselves receiving conflicting messages as to what those values are.

The Bealknap dilemma also raises the question of whether a lawyer in Shardlake’s situation has the authority to grant such a request. Shardlake made the decision to deny Bealknap’s request without consulting his client. This was in keeping with the practice and values of the legal profession at the time. According to one account, European lawyers of Shardlake’s era “arrogated to themselves total control over many—if not all—of their clients’ legal deci­sions.”^[107] Thus, Shardlake decided what was in the best interests of his client and acted accordingly in denying Bealknap’s request. Modern concep­tions of the attorney–client relationship, of course, place much greater emphasis on client decisionmaking. Indeed, it is not a stretch to say that promoting informed client decisionmaking is itself a fundamental value of the legal profession.^[108]

While clearly restating the value of client autonomy, ABA Model Rule 1.2(d) provides a somewhat ambiguous answer as to the appropriate course of action for a lawyer in Shardlake’s situation. Model Rule 1.2(d) explains that a lawyer “shall abide by a client’s decisions concerning the objectives of repre­sentation” and reasonably consult with the client concerning the means used to achieve those objectives.^[109] The ABA’s older Model Code of Professional Responsibility provided that while a lawyer “must seek the lawful objectives of [a] client,” a lawyer does not violate the duty of zealous representation by “acceding to reasonable requests of opposing counsel which do not prejudice the rights of [the] client” or “by treating with courtesy and consideration all persons involved in the legal process.”^[110] In that one passage, the Model Code emphasized three fundamental values of the legal profession: (1) zealous repre­sentation, (2) client autonomy, and (3) civility. But which value should prevail in the given situation? The Ethical Consideration (EC) accompanying the rule advises that:

In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer.^[111]

As an example of decisions that are exclusively for the client, the EC lists the question of whether the client “will waive his right to plead an affir­mative defense.”^[112]

Surely, if the decision whether to assert an affirmative defense is ultimately for the client to decide, then the decision to force the purported owner of property in a property dispute to prove that he actually possesses title to the land is for the client as well. But, again, there is no suggestion in Shardlake’s situation that this fact was in dispute. And Bealknap’s failure to file the title with the court was perhaps the result of a serious illness that nearly killed him—a fact of which Shardlake was aware. Is a lawyer in Shardlake’s situation being paternalistic by making the decision without consulting the client?^[113] Is this the kind of decision that is exclusively the client’s? If so, is that the outcome the legal profession wants? Ultimately, Shardlake’s dilemma illustrates the diffi­culty in reconciling some of the potentially conflicting core values of the legal profession and molding them into a coherent framework of “professionalism.”

c. The Bealknap Reporting Dilemma: Reporting the Misconduct
of Another Lawyer

Additionally, one must consider Shardlake’s attempt to use the threat of professional discipline against a fellow lawyer to his advantage. In Dark Fire, Shardlake threatens to inform the disciplinary authorities at Lincoln’s Inn of Bealknap’s ring of compurgators if Bealknap does not cooperate with his investigation into a threat to England’s security.^[114] Bealknap’s sideline is undoub­tedly a crime and one that reflects adversely on his fitness as a lawyer. Under modern standards, Shardlake would have a duty to report Bealknap’s misconduct to disciplinary authorities and would be subject to discipline for attempting to bargain away that duty.^[115] Likewise, under the 1402 Act regulat­ing the practice of law in the royal courts, Shardlake presumably swore an oath to give knowledge of another lawyer’s falsehood to the appropriate authority.^[116]

One facet of professionalism identified by numerous proponents is that lawyers must insist that other members of the profession comply with their own ethical obligations.^[117] While reporting Bealknap may have been ethically required by official policy, reporting the misconduct of another lawyer was discouraged as matter of professional norms in Shardlake’s fictional world.^[118] In light of the numerous Inns of Court rules designed to encourage collegiality among lawyers of the time, it seems entirely plausible that this was indeed the norm among non-fictional lawyers of the time as well.

In this respect, Shardlake’s willingness to risk his own professional standing by reporting a brother lawyer for serious misconduct seems particularly admirable. Yet, Shardlake’s justification for the threat is not to cleanse the profession of the likes of Bealknap, but to put pressure on Bealknap for use in a completely unrelated matter. Thus, Shardlake is willing to defy convention and report another lawyer’s serious professional misconduct (admirable), but only if the lawyer refuses to comply with Shardlake’s threat (not so admirable).

Aside from calling into question Shardlake’s status as a symbol of profes­sio­nalism, the episode also highlights the twenty-first-century legal profession’s somewhat ambiguous views on this facet of professionalism. The legal profession trumpets its commitment to self-regulation and memorializes that commitment in the form of ethical rules.^[119] Yet, as is the case in Shardlake’s world, the legal profession’s actual commitment to this ideal is suspect. The reporting requirement of Model Rule 8.3(a) is structured narrowly so as to limit a lawyer’s obligation to report a fellow lawyer, and lawyers routinely ignore the rule, even when applicable, for fear of being labeled a “rat.”^[120] Judges report a similar reluctance to refer lawyer misconduct to disciplinary authorities, despite being under a similar obligation.^[121] And despite numerous examples of lawyers being fired by their employers for fulfilling their ethical obligations under the rule by reporting misconduct, the legal profession has failed to adopt ethical rules specifically prohibiting such retaliation, and common law protec­tion for victims of such retaliation is spotty.^[122]

Thus, Shardlake’s response to Bealknap’s clear misconduct is repre­sentative of the legal profession’s difficulty in not only talking the talk of professionalism but actually walking the walk.

Conclusion

The character of Matthew Shardlake serves not only as an interpreter of the sixteenth century for modern readers, but as a mirror for the practice of law in the twenty-first century. C.J. Sansom has created a semi-fictional world in which lawyers face many of the same dilemmas they do today. The fact that Shardlake—a character defined by his sense of integrity—arrives at decisions that are subject to question, both under the prevailing professional standards of his own time and those of the twenty-first century, says at least as much about the legal profession’s conception of itself as it does the character of Shardlake. The series forces readers—and particularly lawyers—to confront their own conceptions of ethics and professionalism, while highlighting the moral and ethical ambiguity inherent in the decisions of its protagonist. While there is no doubt that Shardlake is a fictional character worthy of respect, the series stops short of presenting a one-dimensional role model. This is ultimately part of what makes the series so enjoyable and thought-provoking for lawyers.

Over the past three years, students in Columbia Law School’s Lawyering in the Digital Age Clinic have teamed up with the judges at New York City’s Office of Administrative Trials and Hearings and the Legal Aid Society to create a website to help people who had their cars confiscated during an arrest get their cars back.

The NYC Police Department can seize a car during the course of an arrest for a variety of reasons, including driving while intoxicated, drug possession, and weapons possession.  What many car owners and drivers who have had their cars taken away do not know is that there is a process for asking to have the car returned in a civil proceeding even if there is a concurrent criminal trial for the arrest.

The process by which they can do this is called a Krimstock hearing, named after a plaintiff in a class action brought by the Legal Aid Society specifically to challenge the police department’s practice of seizing a car without providing a prompt hearing.

The website provides a comprehensive guide for people who wish to bring a Krimstock hearing case, whether or not they have a lawyer.  It describes car owners’ rights and guides them step-by-step through the entire hearing process, from requesting a hearing to recovering the car from the police impound.   It includes a detailed description of the process, what to prepare, how to settle during a pre-hearing conference if they want to, what to expect during the hearing, and what to do/how to re-schedule if they cannot make their hearing date. There are also videos on different pages of the site made by the OATH judges that serve as special guides through the site.

The Krimstock hearing site can be found at www.law.columbia.edu/krimstock.

About the Clinic

The Lawyering in the Digital Age clinic at Columbia Law School was created more than 10 years ago to explore the impact of technology on law practice and the legal profession. The clinic is taught by Professors Conrad Johnson and Mary Marsh Zulack along with Brian Donnelly, Director of Educational Technology.

The clinic represents an innovative approach to teaching students to engage in effective contemporary legal practice. Student fieldwork projects are done in partnership with public interest organizations and with judges. A common theme for all of the fieldwork is to improve access to justice. Clinic students have collaborated with several Legal Aid and Legal Services organizations to help lawyers integrate technology into their practice.

The clinic has also partnered with judges on all levels of the judiciary in New York.  The Krimstock project with OATH, showcased in this STLR post, is just one example of clinic students helping to make an adjudicative system more accessible and legal
information more available to under-served communities. The clinic students hope that this innovative effort will be a model for using technology to create other resources and tools to provide greater access to justice in other legal arenas.

To learn more about the Lawyering in the Digital Age Clinic, visit here.

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Significant issues such as parallel mergers, minority shareholdings, and warehousing were debated vigorously—and will have to be clarified in the years ahead.

Flaws have appeared in the cooperation between the Commission and NCAs in relation to upward referrals to the Commission with no guarantee of improvement as a result of the soon to be adopted Guidelines on Best Practices for communication between these authorities.

The Commission is instead focusing on achieving the internal market for energy by regulatory means, by trying to ensure implementation of the third energy package and by facilitating the convergence of market rules in cooperation with ACER.

Perceived regulatory gaps in the regulation of wholesale energy trade have been addressed with a new transparency regulation, which is supposed to enhance regulatory oversight by imposing far-reaching reporting obligations on undertakings and prohibiting insider trading.

• Content Type Journal Article
• Pages 1-18
• DOI 10.1007/s10611-011-9352-z
• Authors
  • Brigitte Unger, Utrecht University School of Economics, Kriekenpitplein 21-22, 3584 EC Utrecht, The Netherlands
  • Johan den Hertog, Utrecht University School of Economics, Kriekenpitplein 21-22, 3584 EC Utrecht, The Netherlands

• Journal Crime, Law and Social Change
• Online ISSN 1573-0751
• Print ISSN 0925-4994