The
DIGEST
National Italian American Bar Association Law Journal
ARTICLES
Race Law Revistited: A Brief Review of Anti-Semitism and the Role of Lawyers in Fascist Italy…………………………… Brandon Gatto, Esq.
Legal and Ethical Considerations on the Use of Assisted Reproductive Technology in the United States and Italy…….. Valeria Camboni Miller
Federalism Lost: The Roberts Court's Failure to Continue Rehnquist's Federalism Revolution…………………………. Joshua R. Meddaugh, Ph.D ………………………………………………………………. John R. Theadore, Esq.
ANNUAL REPORTS TO THE ITALIAN PARLIAMENT
The New Italian Anti-Corruption Authority: Duties and Perspectives……………………………………... Raffaele Cantone
Competition Policy in the Italian Economy: Current Developments and Lines of Action…………………………. Giovanni Pitruzzella
Vulnerable Person Data: Data Protection and Digital Society.. Antonello Soro
BOOK REVIEW
Review of AUTUMN CRUSH by Andrew Anselmi……….. Joseph A. Sena, Jr., Esq.
CASE COMMENTS
2016 Case Comments……………………………………… Editorial Board
ATTENTION
SUBSCRIBERS THE DIGEST is the law journal of the National Italian American Bar Association (NIABA). THE DIGEST is a professional journal publishing articles of general interest to the profession with a special focus on Roman Law, Civil Law, Italian Law, Legal History, and all areas of property law (from real property to intellectual property, cultural property, land use, and the law of historic preservation). The journal publishes articles, essays, commentary, and book reviews. You may submit a paper to us by e-mailing it as a Word attachment and sending it to: [email protected]. Papers should be submitted in English. Citations should comply with the most current edition of the Uniform System of Citation for U.S. Law Sources (The “Bluebook”).
THE DIGEST
The Law Journal of the National Italian American Bar Association
THE NATIONAL ITALIAN AMERICAN BAR ASSOCIATION 2015–2016 OFFICERS AND BOARD MEMBERS
JOSEPH A. SENA, JR. President
PAUL FINIZIO FRANCIS DONNARUMMA Executive V.P. Secretary
P. CHARLES DI LORENZO HON. PAUL VICTOR Treasurer Historian
DINO MAZZONE* Immediate Past-President
Regional Vice Presidents
New England: DANIEL ELLIOTT Mid Atlantic: SIGISMONDO F. RENDA South: DOMENIC LUCARELLI Midwest: CAROL ANN MARTINELLI West: DAMIAN CAPOZZOLA Canada DINO MAZZONE* Italy VALERIO SPINACI
Board of Directors *Past Presidents
LOUIS R. AIDALA SALLY ANN JANULEVICUS CLAIRE AMBROSIO PROF. ROBIN PAUL MALLOY PHIL BONCORE* THOMAS MAZZIOTTI CIRINO M. BRUNO* JAMES MICHALSKI JOSEPH D. FRINZI RAYMOND A. PACIA* JOSEPH M. GAGLIARDO FRANK JOSEPH SCHIRO* HON. JOSEPH N. GIAMBOI* DANIEL J. STALLONE ANTHONY J. GIANFRANCESCO*
The
DIGEST National Italian American Bar Association Law Journal
National Italian American Bar Association
The Digest • Syracuse University College of Law • Syracuse, NY 13244-1030
2015-2016 Editorial Staff
Editor-in-Chief PROFESSOR ROBIN PAUL MALLOY, J.D., LL.M.
Senior Editor for Italy and Europe LUCA ARNAUDO, J.D., P.G. DIP. IN LAW, PH D.
Student Board of Editors
Managing Editor HEATHER DELAURIE
Associate Managing Editor HELEN HOHNHOLT
Executive Editor DENNIS POLIO
Business Editor ASHLEY WEATHERS
Second Year Associate Editors ANDREW LESSIG ANGÉLIQUE MCCALL
THE DIGEST Two-Thousand and Sixteen
ARTICLES Race Law Revisited: A Brief Review Of Anti-Semitism and the Role of Lawyers in Fascist Italy…………… Brandon Gatto, Esq. 1
Legal and Ethical Considerations on the Use of Assisted Reproductive Technology in the United States and Italy...... ……... Valeria Camboni Miller 17
Federalism Lost: The Roberts Court's Failure to Continue Rehnquist’s Federalism Revolution ……………….. ……Joshua R. Meddaugh, Ph.D ………………………………………………John R. Theadore, Esq. 49
ANNUAL REPORTS TO THE ITALIAN PARLIAMENT The New Italian Anti-Corruption Authority: Duties and Perspectives……………………..Raffaele Cantone 83
Competition Policy in the Italian Economy: Current Developments and Lines of Action……………………………...Giovanni Pitruzzella 101
Vulnerable Person: Data Protection and Digital Society……………………...... Antonello Soro 117
BOOK REVIEW Review of AUTUMN CRUSH by Andrew Anselmi…………………………Joseph A. Sena, Jr., Esq.133
CASE COMMENTS
2016 Case Comments………………………Editorial Staff 135
Published annually by the members of the National Italian- American Bar Association, Washington, D.C. Editorial Office: NIABA, 2020 Pennsylvania Avenue N.W., Suite 932, Washington, D.C. 20006.
Send change of address and new subscriptions to THE DIGEST, National Italian American Bar Association, 2020 Pennsylvania Avenue N.W., Suite 932, Washington, D.C. 20006, at least 45 days before the date of the issues with which it is to take effect.
The views expressed in THE DIGEST are those of the authors and do not necessarily reflect the views of the National Italian American Bar Association, its members or staff.
© Copyright 2015. NIABA
Race Law Revisited: A Brief Review of Anti-Semitism and the Role of Lawyers in Fascist Italy
* BRANDON GATTO, ESQ.
SUMMARY OF THE TEXT
This article is the product of extensive research on the role of lawyers and ethical legal dilemmas in Italy during the Second World War. Specifically, it represents a concise summation of the attitudes, actions, and effects of Italian lawyers in Fascist society, particularly in relation to the race laws passed by Benito Mussolini in 1938 and the subsequent treatment of Jews living in Italy. Sources consulted include an array of legal and non-legal resources ranging from a complete history of lawyers since the unification of the Republic in 1861 to a collection of narratives authored by Italian Holocaust survivors.
INTRODUCTION
La Vita è Bella, the crowning achievement of Academy Award-winning movie star Roberto Benigni, tells the World War II-era story of the silly yet endearing Guido, an Italian Jew forced to play the role of jester-protector while shielding his son from the brutal realities of their imprisonment in a concentration camp. For Americans, it is the most well-known Italian commentary on the life of Jews during Fascist Italy, and its underlying message that “life is beautiful,” even in the face of war and inhumane atrocities, is a concept meant to identify with the commonalities of all people. The worldly scope of this message, however, goes nearly
_____ * Brandon Gatto is an American lawyer, judicial law clerk, and dependency master in Scranton, Pennsylvania. Prior to becoming an attorney, Gatto taught English in Rome, Italy. He is a Phi Beta Kappa graduate of the Schreyer Honors College at Penn State University, and he received his law degree from the University of Pittsburgh School of Law with concentrations in Civil Litigation and Holocaust Studies. He is currently attaining his LL.M. in Trial Advocacy at the Temple University Beasley School of Law. Gatto has previously been published in the Bocconi Legal Papers, Italy’s only student- edited law review, at the Bocconi University School of Law in Milan, and in The Jurist at the University of Pittsburgh.
1 2 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:1
without notice for the film’s first third, which is quintessentially “Italian”— cobblestoned streets, bicycle rides, prayers to the Madonna,
talking with hands, and, of course, over-the-top humor. Sure, the home of Guido’s Jewish uncle is broken into and pillaged. Sure, Guido’s bookstore door is branded a “Jewish Shop” (Negozio Ebero) by graffitists. Sure, elementary students are being taught the history of their “Aryan” race. But these short, uncomfortable moments are only peripheral to what any audience would want—the sunny hills of Tuscany and the whimsy of a peasant-meets-princess love story. It is only when Guido and his son are forced onto a train packed with other Jews that the film shifts from being idealistically “Italian” to being brutally and universally realistic. Gone is the romance of the afternoon sun and siesta. Gone are the underpinnings of family sanctity and morality. Gone, in fact, is Italy, as the remainder of the film is set in Germany,1 perhaps because Benigni had no choice but to leave his country in order to tell a more tragically accurate, emotionally effective tale.
The significance of Benigni’s delivery of La Vita è Bella should not go unappreciated by legal scholars and historians alike. Like the way of his country, he uses only these few uncomfortable moments to foreshadow Guido’s fate as a Jewish-Italian before hurling his audience headlong into the throes of anti-Semitism. Italy’s public anti-Semitic campaign began in 1938. Before this time, however, Italian Fascists “did not have a position … regarding the Jewish question” because “anti-Semitism and the Jewish question were never very important” to their political endeavors.2 In fact, “it does not appear that anti-Semitism had any importance,” at least substantively within the Fascist movement, even for “the most vocal Fascist 3 anti-Semites after 1938.” Many scholars attribute
_____ 1. Though the name of the concentration camp is never mentioned during the film, the movie reportedly inspired by Rubino Romeo Salmoni, an Italian survivor of Auscwitz. See Claudia Voltattorni, Addio a Rubino Romeo Salmonì, l’ebreo di Auschwitz che ispirò Benigni , Corriere della Sera [Farewell to Rubino Romeo Salmoni, the Auschwitz Jew that Inspired Benigi] (July 9, 2011, 8:23 PM), available at http://roma.corriere.it/roma/notizie/cronaca/11_luglio_9/addioromeosalmonishoah19010 54739642.shtml (last visited Feb. 12, 2016). 2. RENZO DE FELICE, THE JEWS IN FASCIST ITALY: A HISTORY 57 (2001). 3. Id. at 58; see also ROBERTO FARINACCI, STORIA DEL FASCISMO [HISTORY OF FASCISM] (SocietàEditoriale “Cremona Nuova” 1940). 2016] RACE LAW REVISITED 3
the sudden and rapid persecution of Italian Jews to the influence of Nazi Germany and Mussolini’s need to appease Adolf Hitler. Regardless of the motivations behind Italy’s 1938 Manifesto of Race, however, it is clear that Italy’s answer to the proverbial “Jewish question” differed drastically from that of Germany.4 As explained herein, this may help scholars understand why, despite being the second most dominant Axis power in Europe, Italy, unlike Axis allies Germany and Japan, was never brought before the world on trial for war crimes, crimes against humanity, or crimes against peace.5 Rather, despite requests by Yugoslavia, Greece, and Ethiopia for the extradition of several Italian war crimes suspects, the British government ultimately passed on the “hand-over” of these criminals due to Italy’s 6 guarantee of a post-war, anti-communist republic.
Such repression of Italy’s Holocaust-era crimes in the immediate aftermath of the war has ultimately led to what some have labeled “historical revisionism,”7 and has even prompted a former prime minister to avow that “Mussolini never killed anyone. … [He] used to send people on vacation in internal exile.”8 The facts, however, tell a different story
in that Italy’s twenty-three concentration camps were very much utilized. While the country’s treatment of Jews is sometimes heralded when compared to that of Germany’s, the camps nonetheless yielded thousands of dead in ways that blatantly violated preemptory norms of international law.9 Carrying out such acts with any less maliciousness or intent than that of the Germans in no way excuses the remediation that should have been sought for Jewish-Italian victims, thereby begging for analysis of why such _____ 4. See DE FELICE, supra note 2, at 427. 5. The Nuremberg Trials, held in Nuremberg, Germany from November 1945 to October 1946, were a series of military tribunals conducted by the victorious Allied powers against the most prominent members of the political, military, and economic leadership of Nazi Germany. The International Military Tribunal for the Far East, similarly, was held in Tokyo, Japan from April 1946 to November 1948 and conducted in the same fashion against the leaders of the Japanese Empire most responsible for war crimes. 6. Effie Pedaliu, Britain and the ‘Handover’ of Italian War Criminals to Yugoslavia 194548, 39 J. 7. See ALESSANDRA KERSEVAN, FOIBE: REVISIONISMO DI STATO E AMNESIE DELLA REPUBBLICA [FOUND: REVISIONISM STATUS AND AMNESIA OF THE REPUBLIC] (2008). 8. Comments to Media by Silvio Berlusconi , BBC Nᴇᴡs (Sept. 11, 2003), http://news.bbc.co.uk/2/hi/Europe/3101198.stm (last accessed Feb. 12, 2016). 9. See DE FELICE, supra note 2, at 449-50. 4 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:1
accountability was not assessed by Italian lawyers, lawmakers, and
citizens themselves. In an attempt to address these ethical dilemmas facing Italian lawyers during World War II, Part I of this article will examine the role of lawyers in Italian society leading up to the war, as well as their general relationship to the Fascist regime taking shape. Next, Part II will assess how Italian lawyers reacted to Mussolini’s anti-Semitic campaign and, in particular, the race laws of 1938. Finally, Part III will observe how Italian lawyers approached ending their country’s legally-recognized treatment of Jewish-Italians, and the demand, if any, to hold accountable those officials most responsible for the acts committed.
I. POST WORLD WAR I, ITALY, AND THE RISE OF FASCISM
Following successful military operations against Austria-Hungary and a subsequent cessation of hostilities in October of 1919, Italian leaders formed 10 a special commission to reform the Republic’s bar of lawyers. Specifically, a special panel composed of the popolari, or senators of the popular political party at the time, and Carlo Cantucci, the president of the Bar of Rome, assembled to create a unified bar system for all of Italy to replace the regional bar systems that had been in place.11 With thousands of lawyers returning from the frontlines of the Great War to crumbling towns and villages, the reform provided a statutory means for these professionals to change residences and resume their legal duties under the jurisdiction of other regional bars without any additional 12
qualifications or obligations of service. The creation of the national bar was also perceived as a spectacle of Italy’s rising nationalist sentiments, which were only bolstered by Benito Mussolini’s attempt to convince Italian attorneys to join his growing fascist movement. After returning from the war himself,
Mussolini formed the Fasci Italiani di Combattimento, or the Fascist
_____ 10. FRANCESCA TACCHI, GLI AVVOCATI ITALIANI DALL’UNITÀ ALLA REPUBBLICA [ATTORNEYS FROM THE UNIT TO THE ITALIAN REPUBLIC] 370 (2002). 11. Id. 12. Id. 2016] RACE LAW REVISITED 5
Italian Combat Squad, in March of 1919. Promoting a party that propagated national unity and the nonexistence of social class as tenets that would restore Italy’s “greatness” to that of Ancient Rome, Mussolini quickly gained popularity and transformed his original group of only 200 members into the National Fascist Party (“NFP”).13 In October of 1922,
the NFP’s March on Rome resulted in the ouster of Prime Minister Luigi Facta, thereby invoking King Victor Emmanuel III to invite the popular Mussolini to form a new government.14 Shortly following his ascension to prime minister thereafter, Mussolini used the influence of his political magazine to invite all Italian lawyers to “accede to Fascism, a movement that wins the conscience and desires to direct the reconstruction of the nation.”15 This appeal was not aimed at any specific individual lawyers, but rather, because Fascism promoted a strong rule of law, it was offered 16 to all lawyers as a choice of society. The support of Fascism by lawyers and their cooperation with Italy’s new government was an objective that Mussolini evidently took very seriously, as he frequently wrote of attorneys as the “pillars of the regime.”17 In fact, Aldo Vecchini, a fascist lawyer and the eventual secretary of the Fascist Union Bar, labeled attorney support of the right-wing government as a fundamental “mission” in light of the collaboration between the judiciary and the justice administrators.18 Many lawyers of the national bar, however, were skeptical of the new government’s motivations.19 Although Fascism garnered support from much of the military and business classes, the rapid social and economic changes in Italy led to continual political battles throughout the 1920s, thereby prompting some attorneys to caution that lawyers, as a class, could not join
_____ 13. Id. 14. Id . at 380. 15. Id. at 382-83. 16. Id. at 383. 17. Benito Mussolini, La Parola del Duce agli Avvocati d’Italia [The Duce’s Speech to Lawyers in Italy] (1935) in 1 R.S.F. 2, 1935, at 57, 57-58. 18. ALDO VECCHINI, LA MISSIONE DELL’AVVOCATO NUOVO [THE MISSION OF THE NEW LAWYER] 59 (1940). 19. TACCHI, supra note 10, at 406. 6 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:1
the in-fighting.20 For example, Amedeo Sandini, a well-respected member of the national bar and future senator, warned his colleagues in 1922 that,
Italian lawyers are not regressing along with the movement that wins the conscience and strives to reconstruct the nation. They cannot, as a class or order, remain in a cowardly distrust and an attitude of expectation. Those that place themselves at the forefront of the movement are only there so as not to remain 21 foreign to its direction.
Sandini’s sentiments were shared by others throughout the 1920s, particularly when the noose of Fascism began tightening in 1925. Piero Calamandrei, a law school professor at several Tuscan schools and contributor to the Florentine journal Don’t Give Up, even surmised that anti-Fascist lawyers involved in the political process should “throw all of
their poisonous venom and evil against the ruling party,” and that the national bar should not prevent lawyers from dropping “a fair dose of 22 blows” against the Fascist elites. Opposition to the new regime, however, was eventually “decapitated,” or at least “reduced to silence or … mumbling,”23 particularly when law firms opposing the new government were destroyed and defiant politicians, including Secretary of the 24 Socialist Party Gaetano Pilati, were simply killed off. Significantly, issues involving Jewish-Italians were never a public concern in the early years of Il Duce’s Fascist agenda. While the national bar and its lawyers were embroiled in mostly political battles with the emerging Fascist elites, Mussolini sought to improve relations with the Jewish communities through his creation of the Italy-Palestine Committee, which endeavored to “settle the relationship between [Italy] and the Jews”
_____ 20. Id . citing Aᴍᴀᴅᴇᴏ Sᴀɴᴅʀɪɴɪ, Eʀᴀ NᴜᴏᴠᴀGɪᴜᴛɪᴢɪᴀ Nᴜᴏᴠᴀ (1922). 21. Id. 22. Id. at 428. 23. DE FELICE, supra note 2, at 83 (internal quotation marks omitted). 24. TACCHI, supra note 10, at 428. 2016] RACE LAW REVISITED 7
by solidifying their commitment to the state.25 In fact, Jewish-Italians proved less resistant to Fascism than many believe, as most felt “a stronger 26 sense of security” while “uncertainties and suspicion melted away.” Mussolini advanced the totalitarianism of his movement and capitalized on this Jewish support by legally redefining Italy’s “Jewish Communities” under the new Law of the Communities of 1930.27 Because these regulations were portrayed as a compromise among Fascist officials and prominent Jewish figureheads,28 Italy’s national bar remained wholly silent on the issue. Indeed, there was perhaps no opportunity for lawyers, political or otherwise, to oppose the Law of Communities, as it “was welcomed 29
favorably by the overwhelming majority of Italian Jews.” At the same time, Italian lawyers continued to struggle with their societal perception as an “ambiguous” class that, as Mussolini himself described, had “favored the equation between advocacy and anti- Fascism, or at least ‘not Fascism.”30 This stigma of the legal profession was also due to an “unfair persuasion” by certain political leaders that characterized the bar as an “obstacle to the revolutionary change” in Italy.31 It was even considered an “attorney’s crisis” given the bar’s lack 32 of “self-discipline” and “sense of responsibility.” Conversely, in neighboring Germany, the “Nazification of lawyers” in 1933 had been surprisingly rapid and was met with little opposition, primarily due to a new “professionals” law that imposed limited access to legal practice.33 Interestingly, during March of the same
year, new German Chancellor Adolf Hitler’s proclamation against the Jews and boycott of Jewish business was met with resistance from, among other Italians, Mussolini himself, who actually allowed “about three-
_____ 25. DE FELICE, supra note 2, at 85. 26. Id. 27. Id. at 95. 28. Id. 29. Id. at 96. 30. Mussolini, supra note 17, at 57. 31. Germano Secreti, Crisi dell’Avvocatura [Advocacy Crisis], 5 Le Professioni e Le Arti 9, 16 (1935). 32. Id. 33. TACCHI, supra note 10, at 534. 8 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:1
thousand German Jews, especially scientists, medical doctors, technicians,and professionals, to establish residence in Italy.”34 Given Il Duce’s apparent discontent with Hitler’s anti-Semitic worldview and his 35 opinion that the “Nazi anti-Semitic campaign was a political mistake,” Italy’s potential issues with the treatment of Jewish-Italians were roundly kept from the view of lawyers and citizens alike. As such, attorney resistance to race law and discrimination remained mostly absent in Italy throughout the 1930s. This would change drastically, however, when both the Nazi anti-Semitic campaign and Mussolini’s allegiance to Hitler grew deeper and, in 1938, trapped Il Duce’s Fascist agenda to the point of 36 no return.
II. THE EMERGENCE OF ANTI-SEMITISM
The period of 1938-1945 has been classified as a “persecution of rights” for Jewish-Italians, and the Fascist regime was responsible for carrying out “a crescendo of measures decidedly incompatible with the myths of the alleged harmlessness of Fascist racism.”37 Though distinct from the measures of Nazism, this critical point in history cannot be viewed from a perspective of relativeness, i.e., that Italians were “good” or “not bad” simply because Germans were “bad.”38 By 1938, much of Italian culture, particularly in secondary and high schools as well as universities, had become widely influenced by Fascism, and was therefore subject to its 39 course of direction. This became particularly important when “Italian
Jews in their overwhelming majority were caught completely off guard by the enactment of the first racial measures” as well as the clear 40 indication that “Fascism had decided to follow the German example.” The first measures came in August of 1938 with the introduction
_____ 34. ALBERTO THEODOLI, A CAVALLO DI DUE SECOLI [TWO CENTURIES OF A HORSE] 171 (1951). 35. DE FELICE, supra note 2, at 125. 36. Id. at 332. 37. TACCHI, supra note 10, at 538. 38. Id. 39. Id. at 539. 40. DE FELICE, supra note 2, at 315. 2016] RACE LAW REVISITED 9
of the Manifesto della Razza, a declaration proclaiming the purity of the “Aryan” “Italian race.”41 The Manifesto also explicitly declared that “[t]he Jews do not belong to the Italian race,”42 and paved the way for a series of race laws over the course of a year. Despite Mussolini first urging Hitler to abandon the anti-Semitic campaign, several historians attribute Il Duce’s ultimate public agreement with Der Führer on the Jewish question solely to 43 the fragile Italo-German alliance. Essentially, Mussolini “decided to accommodate the National Socialists by introducing anti- Semitic legislation in Italy as evidence of his good faith,” and “conceived it as an offering calculated to solidify the Italo-German Alliance.”44 As such, Il Duce’s now public “anti-Jewish attitude was dictated not by 45 theoretical, but almost solely tactical, i.e., political, consideration.” The law of June 29, 1939 was Mussolini’s most comprehensive piece of legislation dealing with professionals, and proscribed the “regulations 46
restricting professions on the part of Italian citizens of the Jewish race.” Generally, the law prevented Jewish doctors, lawyers, notaries, engineers, architects, journalists, and other professionals from practicing.47 It did so by striking the names of these professionals from their respective professional “roles,” or registers.48 It further prohibited any form of association or collaboration between Jewish and non-Jewish professionals.49 With respect to lawyers specifically, Article 22 of the law proscribed that “Italian citizens of Jewish race may not be included in the roles of judicial administrators,” 50 and “if already registered, are erased.” Because Jewish-Italians made up such a small percentage of practicing attorneys, however, the law was never considered a “real _____ 41. Guido Landra, Manifesto della Razza [The Manifesto of Race], note 1, (1938). 42. Id. 43. A. JAMES GREGOR, THE SEARCH FOR NEOFASCISM 54 (2006). 44. Id. at 54. 45. Id. 46. Regio decreto n. 1054 [Royal Decree n. 1054] (It.), Disciplina dell’esercizio delle professioni da parte dei cittadini di razza ebraica [Governing the exercise of professions by the citizens of Jewish race], (June 29, 1939); TACCHI, supra note 10, at 541. 47. R.D.L. 1054/1939 (It.), supra note 46. 48. Id. 49. Id. at art. 25. 50. Id. at art. 22. 10 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:1
51 professional death.” If anything, “Aryan” practitioners struggled with internal conundrums when dealing with Jewish clientele,52 which is perhaps what led to the disruption of the working relationships between non-Jewish 53 lawyers and Jewish clients. These issues were not “confined to a sphere of indifference,” but rather, stemmed more from a “field of 54 complicity” with ruling authorities and were selectively implemented. The leader of Italy’s first post-Fascist government, General Pietro Badaglio, went on to write about not only the German influence on crafting these laws, but the ultimate reluctance by Italians to carry them out:
It was impossible, at the time, to bring about the overt termination of the racial laws without causing a violent clash with the Germans, or to be precise, with Hitler, who has not only proposed them but had actually imposed them on Mussolini, who had declared to the Senate a few months earlier that the Jewish problem did not exist in Italy. I called several Jewish leaders and told them that, even though we could not, for the moment, radically abolish the laws, 55 they would not be enforced.
At the same time, outspoken anti-Fascist lawyers like Calamandrei were forced to keep their criticisms mostly underground, as lawyers 56 became public enemies of the state. Many lawyers, however, “found understanding and support” in their complicit decisions of the profession,
_____ 51. TACCHI, supra note 10, at 542. 52. Id. 53. E. Collotti, INTRODUCTION TO ENZO COLLOTTIS, RAZZA E FASCISMO: LA PERSECUZIONE CONTRO GLI EBREI IN TOSCANA [RACE AND FASCISM: THE PERSECUTION AGAINST JEWS IN TUSCANY] 20 (1999). 54. Id. 55. PIETRO BADOGLIO, L’ITALIA NELLA SECONDA GUERRA MONDIALE [ITALY IN THE SECOND WORLD WAR] 92 (1946). 56. TACCHI, supra note 10, at 573. 2016] RACE LAW REVISITED 11
and the “vile behavior that was dictated by the need to save themselves,” in turn, “[earned] good money.”57 The combination of these factors perhaps explains the complete lack of evidence to suggest that lawyers and other legal professionals organized an actual plan to reverse the course of the anti- Semitic campaign during its infancy and maturation, especially in relation to
Italy’s eventual establishment of concentration camps. Essentially, lawyers were, like everyone else, subject to an agenda that snowballed radically as it aligned more with that of Nazi Germany. Calamandrei’s anti-Fascist coalition of jurists and legal scholars, the Don’t Give Up! movement, is the most well-known faction of lawyers to emerge from World War II Italy, and even they were rendered legally useless against a Grand Council of Fascism that garnered complete 58 control, especially with the war fully underway in the early 1940s.
III. LIBERATION & RESTITUTION
Amidst the Allied invasion of Sicily in July of 1943, Italy’s support for the war began to decline. Though the Grand Council of Fascism was still in power, its members voted, on July 25, 1943, to limit Il Duce’s power by turning control of the armed forces over to King Victor Emmanuel III and control of the government over to General Pietro Badoglio.59 An armistice between the Allies and Rome was reached quickly thereafter on September 8, 1943, though the anti-Semitic laws remained in place.60 This was due predominantly to the “immediate Nazi reaction to the announcement,” which “unfortunately did not allow ... those in the country specifically requesting the abolition of racial legislation to bring about changes by the 61 government.” Indeed, those a part of Italy’s new socialist republic, the
RSI government, were still heavily influenced by the Germans, who continued to fight, as well as their anti-Semite agent, Italian head of state 62 Giovanni Preziosi. _____ 57. Id. at 545-46. 58. TACCHI, supra note 10, at 572. 59. DE FELICE, supra note 4, at 429. 60. Id. 61. DE FELICE, supra note 4, at 429. 62. Id. at 432. 12 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:1
At the time, the only prosecution that concerned the RSI was that of
the Fascist leadership that turned Italy’s military power over to the king. Sometime after September 8, the northern Fascists and RSI collaborators summoned the “trustworthy” Fascist leader Aldo Vecchini “to act as Executioner” and “to preside over the extraordinary special tribunal in January 1944” in Verona.63 This tribunal, the Processo di Verona, would proceed under military law, and was used to punish “traitors” for their acts of July 25, 1943, which amounted to the “crime of treason against Fascist ideals.”64 By its end, six Fascists were found guilty and all but one, who was sentenced to thirty years imprisonment, were shot to death.65 The terrible irony of the prosecution is obvious, as the Processo di Verona, a trial by Fascists for Fascists, was the most infamous judicial proceeding to emerge from World War II Italy.66 This truth, however, was not lost on ordinary Italian citizens, who nearly lynched Vecchini in the streets of Rome prior to the tribunal, forcing him to appear with 67 “visible signs of beatings” in Verona. It would take another year before Italy could cleanly break from the grip of both German Nazism and its own Fascism under the will of the country’s National Liberation Committee (“NLC”). In actuality, the
German occupation of Italy following the armistice was the most dangerous time for Jewish-Italians and outspoken lawyers, as the Nazis began the radical and systematic deportation of “state enemies” from Italy to concentration camps in Germany and Poland.68 As a class, “Lawyers were among the tens of thousands of Italians who, between September 1943 and May 1945, were ... hunted and persecuted for 69 political or racial reasons.” It was not until the liberation of Rome from German occupation in 1944 and the eventual formation of the new Italian Republic in 1946 when _____ 63. TACCHI, supra note 10, at 553. 64. Id. 65. Id. 66. Id. 67. Id. at 555. 68. TACCHI, supra note 10, at 573. 69. Id. 2016] RACE LAW REVISITED 13
lawyers had their first opportunity to “feel inspired to reinstate the 70 traditional criteria of autonomy and democracy in place before 1926.”
Fascism, and the ills that plagued and shamed lawyers throughout its reign, “would soon be little more than forgotten brackets of history” as the 71 profession welcomed the NLC’s purge of the former regime. Though the number of lawyers sincerely devoted to Fascism may have been limited from the beginning,72 well-respected lawyers like Calamandrei realized that the effects of Fascism could not simply be lost on his profession:
Out of all professional associations, the one that has suffered the most indignity from this awkward and humiliating twenty-year period of tyranny is the order of lawyers. This is because we, unlike many other professions, never found in our daily work an excuse to distract us from the reality around us ...[. Rather], we met every day, even ten times a day, to handle the laws that constituted our daily work—[the laws that were] the confirmation of our exasperating shame, especially in the years immediately following the advent of the “system.” For the exercise of patronage has been hard training of civil courage and self- sacrifice that sometimes pushed us to the 73 sacrifice of life.
Though Calamandrei’s underground, anti-Fascist Don’t Give Up!
movement was literally and figuratively restricted from changing any of the anti-Semitic measures imposed throughout Mussolini’s rule, the acknowledgment of these “resistance lawyers” is certainly noteworthy,
_____ 70. Id. at 555. 71. Id. at 554-55. 72. Id. at 572. 73. TACCHI, supra note 10, at 572. 14 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:1
especially in light of the now well-established tenet that even though the Italian Fascist agenda yearned for the profession’s support, it nonetheless 74 “always hated its nemeses, the lawyers.” The profession would make sweeping reforms in the post-war world, and began by “disowning the provisions of the laws of November 1939” in favor of laws that encouraged others to join the bar.75 The laws included legislation that “granted benefits to practitioners and other legal professionals with children,” reforms for ministers, and the formation of a joint committee of lawyers and judges to oversee the bar’s newest 76
implementations under a system of checks and balances. Significantly, “gone were the days when [different] organizations had to ‘discuss irreconcilable positions.’”77 Rather, orders were carried out to ensure “the collective interest,” including “the economic interests of lawyers” 78 and their clients.
CONCLUSION
While the historians and scholars noted throughout this article have proffered an array of reasons as to the effect, or lack of effect, that Italian lawyers had during Fascism and the anti-Semitic campaign, it appears evident that the prevailing conclusion on the profession is no different than that of the average Italian citizen. Because anti-Semitism was never a bedrock principle for Fascists, and because Jewish citizens made up a much smaller percentage of Italy’s population than that of Germany,79 it is likely that the majority of lawyers had little difficulty remaining complicit with the actions of the ruling elites. Mussolini’s assassinations of opposition leaders, suppression of speech, and declarations against “state enemies” only bolster 80 this position. Nevertheless, not all war-time Italian
_____ 74. Id. 75. Id. at 573. 76. Id. at 574. 77. PAOLA CAPUDI, LE TOGHE D’ORO: L’ALTRA FACCIA DEGLI AVVOCATI CHE CONTANO [THE GOLD ROBE: THE OTHER SIDE OF THE LAWYERS THAT COUNT] 95 (1983). 78. Id. 79. See DE FELICE, supra note 2, at 57. 80. See TACCHI, supra note 10, at 428, 573. 2016] RACE LAW REVISITED 15
lawyers have used these factors as an excuse to stay silent, and the acknowledgment that lawyers could have done more is, unquestionably, a contributing factor to the progressivism promoted by the current Italian 81 bar.
_____ 81. Id. at 572.
Legal and Ethical Considerations on the Use of Assisted Reproductive Technology in the United States and Italy
VALERIA CAMBONI MILLER*
I. INTRODUCTION
From the time Shannon Morell of Sterling, Michigan, underwent in vitro fertilization for the birth of twins in 2006, she and her husband, Paul Morell, regarded the six leftover frozen embryos as sacred. Then, on Feb. 17, 2009, Shannon and Paul Morell received astonishing news from the fertility clinic: all six of their frozen embryos had been accidentally transferred into the womb of another woman -- and she was pregnant. For 36 weeks, Carolyn Savage of Sylvana, Ohio, carried the couple's child, delivering a healthy 5-pound, 3-ounce boy. On Sept. 24, 2009, in an act of generosity and faith, Savage, then handed the baby back to his biological parents only 30 minutes after his birth, sealing a connection between the two families.1 Unfortunately, not every case has a happy
ending like the one experienced by Shannon and Paul Morell. Issues on custody of frozen embryos and parentage of the resulting child may sometimes arise even before the child is born. Beginning in 1985, Mary Sue and Junior Davis went through six attempts at in vitro fertilization (IVF).2 After fertilization was completed, a transfer was performed on December 10, 1988; the rest of the pre-embryos were
_____ * J.D., William Mitchell College of Law, St. Paul, Minnesota, 2013. B.S., University of Great Falls, 2009. Currently licensed to practice law in Minnesota and Montana. I would like to thank my husband Kevin and my children for their patience, support and encouragement throughout the article-writing process. 1. Susan Donaldson James, Shannon Morell: Embryo Mix-Up Gave Miracle Baby, ABC NEWS (May 4, 2010), http://abcnews.go.com/Health/embryo-mix-mother- shannon-morell-writes-book-miracle/story?id=10522218. 2. IVF is a process in which a doctor surgically retrieves a woman’s eggs and the eggs are mixed with sperm in a petri dish. Fertilization usually occurs within hours, and after three days the one-cell zygote grows from one cell to eight cells. Once the pre-embryo is an eight-cell entity, it can either be transferred into a woman’s womb or frozen for future use.
17 18 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
cryogenically preserved.3 Unfortunately, a pregnancy did not result from the December 1988 transfer, and before another transfer could be attempted, Junior Davis filed for divorce.4 The controversy arose when Mary Sue requested custody of the couple’s seven frozen embryos during
the divorce proceedings. Controversies may arise when couples do not agree on what to do with their frozen embryos in cases of unforeseen circumstances such as divorce or death, or in cases of implantation of embryos in the wrong woman. Controversies on parentage may also arise when a valid surrogacy agreement is in place. This article examines how laws in the in the United States and Italy regulate access to assisted reproduction, control the use of surrogacy and deal with issues relating to parentage of children conceived through assisted reproduction. Part II of this article explains in detail what assisted reproductive technology is and Part III discusses the statistics (how many births occur each year using assisted reproductive technology and the cost of in vitro procedure). Part IV explains Italian law no. 40/2004; the subsequent litigation that challenged the constitutionality of that law is detailed in Parts V and VI. Part VII discusses the American Bar Association Model Act Governing Assisted Reproductive Technology. Part VIII deals with surrogacy, which is illustrated in recent case law. Part IX discusses the Uniform Parentage Act (UPA), and Part X lists and explains the legal tests to determine parentage in addition to the UPA. Part XI discusses the ethical considerations of assisted reproductive technology, and their role in modern society.
II. ASSISTED REPRODUCTIVE TECHNOLOGY
In vitro fertilization, the most common type of assisted reproductive technology, was pioneered in 1978 by doctors in the United Kingdom; it has been used in the United States since 1981. Assisted Reproductive
Technology (ART) includes in vitro fertilization-embryo
____ 3. Cryopreservation is the freezing of embryos in liquid nitrogen at a temperature of negative 195 degrees centigrade in order to preserve them. 4. Davis v. Davis, 842 S.W. 2d 588 (Tenn. 1992). 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 19
transfer (IVF-ET)5, gamete intrafallopian transfer (GIFT)6, zygoteintrafallopian transfer (ZIFT)7, pronuclear stage tubal transfer 8 9 (PROST) and frozen embryo transfer (FET) . These techniques also apply _____ 5. IVF-ET is a four-step process: The first step involves superovulation, where you take injected medications to cause your ovaries to make multiple follicles/eggs. Monitoring of this process is done with blood draws, and ultrasounds to check on the growth of the follicles and development of the uterine lining. When it is determined that the follicles and the uterine lining are appropriately mature, a trigger shot of Human Chorionic Gonadotropin (hCG) is administered. The second step begins approximately thirty-six hours after the trigger shot with the retrieval of eggs/oocytes. The night prior to the egg capture, the woman will do a vinegar douche to reduce the vaginal bacteria. She will arrive at the office then next morning, fasting, (NPO), and get prepared for conscious sedation with an IV placement and medications. Guided by ultrasound, the doctor aspirates the eggs from the follicles during a procedure performed in the office. Shortly after the egg capture procedure, a sperm specimen (3 days abstinence) is collected from the partner or thawed from a donor and prepared for mixing with the eggs. The two are then placed together in a dish and incubated for 18 hours and fertilization is allowed to occur naturally. After 18-20 hours, the embryos are examined for normal fertilization. Normal fertilization is characterized by a pronucleus of the egg and sperm that can be visualized under a microscope. This third stage is called the embryo culturing stage and can go out for five days. The day of egg capture is called day Zero, and day one we expect to see pronuclei or 2PNs, and by day three, 6-8 cell embryos, and by day five, blastocysts. The proembryos can then be transferred to the uterus or incubated for further development into multi-cell embryos and transferred two to five days later. The fourth and final step is the transfer of the embryos into the uterine cavity using a small tube that is inserted through the cervix. The number of embryos transferred varies with the desires of the couple, their feelings about selective reduction in the case of multiple pregnancies, the quality of the embryos and the days of growth, and the age of the woman. IVF PHOENIX: ADVANCED TECHNOLOGIES: MAKING CONCEPTION AFFORDABLE, available at http://www. ivfphoenix.com/services/in-vitro-fertilization/ (last visited April 03, 2016).
6. Gamete intrafallopian transfer (GIFT) uses multiple eggs collected from the ovaries, which are placed into a thin flexible tube (catheter) along with the sperm to be used. The gametes (both eggs and sperm) are then injected into the fallopian tubes using a surgical procedure called laparoscopy under general anesthesia. Infertility & Reproduction Health Center, WEBMD, http://www.webmd.com/infertility-and- reproduction/gamete-and-zygote-intrafallopian-transfer-gift-and-zift-for-infertility (last visited April 03, 2016). 7. Zygote intrafallopian transfer (ZIFT) combines in vitro fertilization (IVF) and GIFT. Eggs are stimulated and collected using IVF methods, then mixed with sperm in the laboratory. Fertilized eggs (zygotes) are then laparoscopically returned to the fallopian tubes where they will be carried into the uterus. The goal is for the zygote to implant in the uterus and develop into a fetus. Id. 8. Pronuclear stage tubal transfer (PROST), similar to ZIFT, uses in vitro fertilization but transfers the fertilized egg to the fallopian tube before cell division occurs. Id. 9. “Frozen embryos” is a term used to refer to those embryos that are not transferred during in vitro fertilization cycles and are subsequently cryopreserved. A frozen embryo transfer can be used to produce a viable pregnancy by first thawing the frozen embryo, 20 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
to oocyte donation and gestational carriers. Approximately 99 percent of ART cycles performed are IVF-ET. IVF-ET has helped many couples conceive successfully. ART may be recommended when other treatments (such as intrauterine insemination) have not been successful or when there is severe male factor infertility, severe endometriosis or tubal 10 obstruction.
Three-person IVF is a critical departure from the traditional kind. This new and biologically extreme technique, which has generated scientific and bioethical controversy on both sides of the Atlantic, would combine genetic 11 material from one man and two women in a single embryo.
III. STATISTICS
According to CDC’s 2012 ART Fertility Clinic Success Rates Report, 176,247 ART cycles were performed at 456 reporting clinics in the United States during 2012, resulting in 51,267 live births (deliveries of one or more living infants) and 65,160 live born infants. Although the use of ART is still relatively rare as compared to the potential demand, its use has doubled over the past decade. Today, over 1% of all infants born in 12 the United States every year are conceived using ART.
According to recent data from National Register of PMA,13 in the period 2005 – 2012, 655,075 cycles of treatment were performed on 493,086 couples, which resulted in 105,003 pregnancies and 79,028 live
_____ and transferring it into an appropriately prepared uterus. Protocols for frozen embryos transfer, IVF1, http://www.ivf1.com/frozen-embryo-transfer/ (last visited April 03, 2016). 10. Assisted Reproductive Technologies, SOCIETY FOR ASSISTED REPRODUCTIVE TECHNOLOGY, http://www.sart.org/SART_Assisted_Reproductive_ Technologies/ (last visited April 03, 2016). 11. Jessica Cussins. “Three-Person IVF" Update Reveals How Little We Know, HUFFINGTON POST (Aug. 5, 2014), http://www.huffingtonpost.com/jessica- cussins/threeperson-ivf-update-re_b_5455869.html. 12. What is Assisted Reproductive Technology?, CENTER FOR DISEASE CONTROL AND PREVENTION (Nov. 14, 2014), http://www.cdc.gov/art/whatis.html. 13. PMA stands for procreazione medicalmente assistita (medically assisted procreation). 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 21
births, about 2% of the total number of newborns in Italy.14 One reason for the low numbers of ART newborns might be due to the cost of the procedure: a person may pay 15,600 euros in Lombardia, double the price asked in Emilia Romagna, which is 6,900 euros. The national average is around 12,300 euros. According to the data gathered from an investigation by the Commission on Inquiry on medical errors and deficits, the price is too high counting that the ASL (Azienda Sanitaria Locale)15 reimburses only 1,934 euro for the procedure.16 Another reason might be the constrictive Italian legislation that regulates access to assisted reproduction.
IV. ITALIAN LAW NO. 40/2004
The Italian Parliament passed Law no. 40 on February 19, 2004; the new law was published in the Gazzetta Ufficiale no. 45 of February 24, 2004. The law was created to favor the solution of reproduction problems deriving from human sterility or from human infertility.
Under Article 4 of law no. 40, persons may use assisted reproductive technology only if it has been assured the impossibility to remove causes of impediment to procreation, and its use is only available to cases of sterility or infertility documented by a physician or in cases of fertility and sterility the cause of which has been medically documented by a 17 physician. Article 4 also prohibits the use of an egg or sperm donor.
Only persons of opposite sex, living at the time of the procedure, that are over the age of majority (18 years of age) and married or living 18 together are allowed to use assisted reproductive technology. _____ 14. Servono Nuove Norme Sulla Fecondazione Assistita [New Rules on Assisted Reprodcution Needed], MOLECULAR LAB (Feb. 28, 2014), http://www.molecularlab.it/news/view.asp?n=8136. 15. Azienda Sanitaria Locale (ASL) is a public entity in charge of the financial organization and management of medical services. 16. Cosimo Colasanto, Un figlio in provetta costa fino a 16.000 euro [A child in a test tube costs up to 16,000 euros],. SALUTE24, (Dec. 13, 2012), http://salute24.ilsole24ore.com/articles/15011-un-figlio-in-provetta-costa-fino-a-16-000- euro-la-legge-40-torna-alla-consulta?refresh_ce. 17. Legge 19 febbraio 2004, n. 40, in G.U. Feb. 24, 2004, art. 4 (It.). 18. Id. at art. 5. 22 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
Under Article 8 of law no. 40, the child born through the use of assisted reproductive technology is a legitimate child of the parents.19 Law no. 40 provides for situations in which the law is violated: in cases where the child is conceived using a donor egg or sperm in violation of Article 4, the 20 father whose consent can be found, cannot deny paternity. Article 13 of law 40, strictly prohibits the use of experiments on embryos, unless such experiments are conducted for therapeutic or 21 diagnostic reasons towards the healthy development of the embryo. Law no. 40, Article 14, paragraph 1, further prohibits the cryopreservation and suppression of embryos. However, the cryopreservation of female and male gamete is allowed with prior written, informed consent. The penalty for the violation of Article 14 is 22
between 5,000 and 50,000 euros. The penalties for violations of other articles of law no. 40/2004 are severe: for violations of Article 4, the civil penalty is any amount between 300,000 to 600,000 euros. Violations of Article 5 call for a penalty of 200,000 to 400,000 euros. Other penalties punish a person who “in whatever form, realizes, organizes or publicizes the commercialization of gametes or embryos or surrogacy” with incarceration from three months to two years and a fine between 600,000 to a million euros.23 Due to its many restrictions and steep penalties, law no. 40/2004 has been challenged several times by Italian couples.
V. THE ITALIAN CONSTITUTIONAL COURT
On April 1, 2009, the Italian Constitutional Court reviewed the constitutionality of law n. 40/2004 striking down, as unconstitutional, 24 Article 14, paragraphs 1, 2 3 and 4 in decision no. 151/2009. Paragraph 2 reads: “the production techniques of embryos, keeping _____ 19. Id. 20. Id. at art. 9. 21. Id. at art. 13. 22. Id. at art. 14. 23. Id. at art. 7. 24. Corte Cost., 01 aprile 2009, n.19, 2009 (It.), available at http://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2009&numero=151. 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 23
in mind the technical-scientific evolution and what Article 7, paragraph 3 provides, cannot create a number of embryos superior to the one strictly necessary for a sole and contemporaneous implant, in any case not superior to three.” Only the following words have been declared unconstitutional:
“for a sole and contemporaneous implant, in any case not superior to three.” The Constitutional Court reasoned that the predetermination of a unified health protocol would subject the woman to a health procedure that may not be wanted and that is not geared towards the protection of 25 her health nor the health of other women.
Paragraph 3 reads: In the event that the transfer of embryos to the uterus will not be possible due to a grave and documented cause related to the health of the woman not foreseeable at the time of fecundation, the cryopreservation of the embryos is allowed until the date of transfer, to occur as soon as possible.
This paragraph has been declared unconstitutional in the sense that the law does not take into consideration the detriment to the health of the woman. The Constitutional Court held that this law would cause the subjection of the woman to treatments that, because are invasive and not very effective, would be damaging to the principle of respect to the human dignity; it would create disparity of treatment in different situations that require different treatments in contrast with the principle of equality of Article 3 of the Constitution, violating the fundamental right to health with the risk of subjecting the woman to treatments that are highly dangerous to her physical and psychological health.26 The Court stated that the legislation does not give the treating physician the possibility of evaluating, using the most recent scientific and technological resources, each case in front of him or her, with the consequent individuation of the maximum number of embryos to implant that is appropriate for a successful treatment while reducing the potential risk to the health of the
_____ 25. Id. 26. Id. 24 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
woman.27 “Decision no. 151 of 2009, is an historical decision that creates a path to be followed by the legislator intervening on delicate 28 matters such as science, health and life.” Other challenges to law no. 40/2004 have been brought by Italian couples to the European Court on Human Rights in Strasburg, France.
VI. THE EUROPEAN COURT ON HUMAN RIGHTS
In 2012, the European Union Court on Human Rights reviewed Italian law no. 40/2004 in connection with the Convention for the Protection of Human Rights and Fundamental Freedoms. Rosetta Costa and Walter Pavan, an Italian couple, had a baby girl in 2006 with cystic fibrosis. Until that point, they were unaware that they were healthy carriers of the disease. When Rosetta Costa got pregnant again in 2010, she requested genetic testing. After a positive result for cystic fibrosis on the embryo, Rosetta Costa underwent an abortion.29 Shortly after, the couple filed an application against the Italian Republic in the European Court on Human Rights in 2010 claiming that they had no access to preimplantation genetic diagnosis for the purposes of selecting an embryo unaffected by the disease. Under Law no. 40 of 19 February 2004, ART is available only to sterile or infertile couples. The European Union Court on Human Rights accepted the application and held that the law violates the Convention for the Protection of Human Rights and Fundamental Freedoms (the
“Convention”). The Court ordered the Italian Republic to pay monetary damages to Rosetta Costa and Walter Pavan: fifteen thousand euros for moral damages and two thousand fiver-hundred euros for legal fees and costs.30 The European Court on Human Rights’ reasoning was based on relevant domestic law, relevant European law, and the Convention. The _____ 27. Id. 28. Id. 29. Case 54270/10, Costa and Pavan v. Italy, 2012 E.C.R. 2. 30. Fecondazione assistita, legge 40 bocciata dalla Corte europea dei diritti umani [Assisted fertilization , Law 40 rejected by the European Court of Human Rights], CORRIERE DELLA SERA (Aug. 28, 2012), http://www.corriere.it/salute/12_agosto_28/legge- procreazione-assistita-corte-europea-diritti-umani_881e1394-f0f1- 11e1-a005-0150214880db.shtml?refresh_ce-cp. 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 25
Court noted that by a decree of 11 April 2008, the Ministry of Health extended access to ART to couples in which the man suffers from a sexually transmissible viral disease:
... having regard also to particular conditions in the presence of which – where the man is a carrier of a sexually transmissible viral disease by infection with HIV, or hepatitis B and C – the high risk of infection for the mother or for the fetus constitutes de facto, in objective terms, an obstacle to procreation, requiring precautions that necessarily result in infertility of a kind comparable to acute male infertility deriving from a verified and medically certified cause such as that referred 31 to in section 4(1) of Law no. 40 of 2004.
The Court also noted that in Order no. 12474/09 of the Salerno Court,
filed on 13 January 2010, “following urgent proceedings, the delegated judge of the Salerno Court granted, for the first time, a couple who were neither sterile nor infertile, and both healthy carriers of muscular atrophy, 32 access to PGD.” The judge of the Salerno Court
considered that PGD33 had to be regarded as one of the prenatal monitoring techniques for ascertaining an embryo’s state of health. Accordingly, prohibiting access to the
technique, in the claimants’ case, engaged the medical liability of the Health Director of the Center for Reproductive Medicine, who was the defendant in the proceedings, 34 for failure to provide a health service. _____ 31. Costa, 2012 E.C.R. at ¶14. 32. Id. at ¶16. 33. Id. at ¶18. PGD means preimplantation genetic diagnosis. 34. Id. at ¶18. 26 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
The European Court on Human Rights also took into consideration the
report “Preimplantation Genetic Diagnosis in Europe” drafted by the JRC (Joint Research Center) of the European Commission, published in December 2007 (EUR 22764 EN) that shows that PGD patients from countries where the practice is prohibited go abroad for the diagnosis. Italian patients generally go to Spain, Belgium, the Czech Republic or Slovakia. The report also points to the inconsistency of legislative provisions that prohibit access to PGD, but authorize access to prenatal diagnosis and medical termination of pregnancy in order to avoid serious 35 genetic diseases in children.
Relying on Article 8 of the Convention, Rosetta Costa and Walter Pavan claimed that a violation of their right to respect for their private and family life occurred because their only means of producing children unaffected by the disease of which they were healthy carriers was to begin a pregnancy by natural means and medically terminate it whenever the prenatal diagnosis showed that the foetus was affected.36 The Court found that
…the notion of “private life” within the meaning of Article 8 is a broad concept which includes, among other things, the right to establish and develop relationships with other human beings (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B), the right to “personal development” (see Bensaïd v. the United Kingdom, no. 44599/98, § 47, ECHR 2001- I), or alternatively the right to self- determination (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002- III). Under Article 8 of the Convention, the Court has also acknowledged a right to respect for the decision to become genetic parents (see Dickson v. the United Kingdom [GC], no. _____ 35. Id. at ¶26. 36. Id. at ¶35. 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 27
44362/04, § 66, ECHR 2007-V, with the references cited therein) and concluded that Article 8 applies to heterologous insemination techniques for in vitro fertilisation (see S.H. and Others v. Austria [GC], no. 57813/00, § 82, ECHR 2011). In the present case the Court considers that the applicants’ desire to conceive a child unaffected by the genetic disease of which they are healthy carriers and to use ART and PGD to this end attracts the protection of Article 8, as this choice is a form of 37 expression of their privacy and family life.
The Court noted that the Italian law’s ban on the use of PGD amounted to an interference with the applicants’ right to respect for their privacy and family life. The Italian law was also inconsistent: it banned implantation limited to those embryos unaffected by the disease of which the applicants are healthy carriers, while it allowed the applicants to abort a fetus affected by the disease. This inconsistency in Italian legislation on PGD gave the
Court reason to believe that the interference with the applicants’ right to
respect for their private and family life was disproportionate. “Accordingly, there has been a violation of Article 8 of the Convention in 38 the present case.” Costa and Pavan were not the only couple fighting for the right to preimplantation genetic diagnosis. On November 15, 2012, a court in Cagliari authorized a couple, in which the woman was affected by thalassemia major and the man was a healthy carrier, to obtain a preimplantation genetic diagnosis at the microcytic hospital in the Sardinian city.39 Since the microcytic hospital in Cagliari lacked the
necessary equipment for the test, the ASL in Cagliari became the first _____ 37. Id.at ¶48-50. 38. Id. at ¶64. 39. Cagliari, giudice ordina diagnosi preimpianto[ Cagliari, Court orders preimplantation diagnosis, LETTERA 43, (November 15, 2012), http://www.lettera43.it/cronaca/cagliari-giudice-ordina-diagnosi- preimpianto_4367572612.htm. 28 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
public medical facility in Italy to administer the preimplantation genetic testing on July 17, 2013. Before this date, only private medical facilities administered preimplantation genetic testing with a price tag between six 40 thousand and nine thousand euros.
VII. THE ABA MODEL ACT GOVERNING ART
In the United States, the laws on assisted reproductive technology are less restrictive. Each state has its own laws regulating assisted reproductive technology, but no federal legislation exists; thus, the American Bar
Association (ABA) proposed a model act “to give assisted reproductive technology (ART) patients, participants, parents, providers, and the resulting 41 children and their siblings clear legal rights, obligations and protections.” The Model Act was approved and adopted by the ABA House of Delegates at the ABA Midyear Meeting in February 2008. Similarly to Italian law no. 40/2004, the ABA Model Act requires that informed consent be provided by all participants prior to the commencement of assisted reproduction. However, Article 2 of the ABA Model goes into
much deeper detail of what informed consent is and what is required. Informed consent requires that all of the following be provided to all participants:
A) A statement that the patient retains the right to withhold or withdraw consent at any time prior to transfer of gametes or embryos without affecting the right to future care or treatment. B) A statement that the donor’s, if any, right to withhold or withdraw consent to
_____ 40. Primo test preimpianto in una struttura pubblica [First preimplantation testing in a public facility],. LETTERA 43, (July 17, 2013), http://www.lettera43.it/cronaca/primo-test-preimpianto-in- una-struttura-pubblica_43675102761.htm. 41. MODEL ACT GOVERNING ASSISTED REPRODUCTIVE TECHNOLOGY (AM. BAR ASS’N 2008), http://apps.americanbar.org/family/committees/artmodelact.pdf. 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 29
fertilization terminates upon retrieval of his or her gametes. C) A description of the known and potential risks, consequences, and benefits of ART. D) Description of alternative therapies and treatments, including adoption and natural cycling. E) A statement that all existing confidentiality protections apply, and information about what these confidentiality protections are. F) A guarantee that a patient has access to all of his/her medical information to the extent the law allows in this jurisdiction. G) Disclosure that intended parents have a right to access a summary of medical and psychological information about donors and gestational carriers. H) A statement that release of any participant-identifiable information, including images, shall not occur without the consent of the participant in a record. I) A statement that the intended parent(s), not the clinic or storage facility, has the right to possession and control of their embryos, subject to any prior agreement. J) A statement of the need for intended parents to agree in advance who shall acquire the right to possession and control of the embryos or gametes in the event of marriage dissolution, death of one or both of them, or subsequent disagreement over disposition. K) The policy of the provider regarding the number of embryos transferred and any limitation on the number of embryos transferred, as well as the existence of national guidelines as published by the ASRM and SART.42 _____ 42. Id. ASRM is the American Society of Reproductive Medicine and SART is the Society of Assisted Reproductive Technology. 30 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
L) A statement of the need for participants to decide whether the embryos or gametes can be used for purposes other than assisted 43 reproduction.
The informed consent must be in writing, it must be written in plain language that can be easily understood, and it must be dated and signed by all parties. The issue of informed consent is important to protect all the persons involved, the donors, the future parents, the children, and the physicians from possible future litigation.
In addition to informed consent, disclosure is also important. Prior to each retrieval and each transfer, the ABA Model Act proposes that a provider must disclose to all participants all possible dispositions of embryos, such as storage, including length of time, costs, and location; transfer, donation (to a known individual for transfer; to an anonymous 44 individual for transfer; to scientific or clinic research) or destruction. Other information that should be disclosed, according to the ABA Model Act proposal, is the method used to achieve fertilization and the results of semen analysis, and the number of eggs retrieved. For the retrieval and transfer of fresh embryos, the ABA Model Act requires that the following information be disclosed: number of embryos created; number of embryos viable for transfer; number of embryos to be transferred; number of embryos preserved; quality of each embryo transferred; and the quality of each embryo preserved. Similar information is required to be disclosed for the retrieval and transfer of 45 frozen embryos.
The ABA Model Act also proposes rules on embryo transfer and disposition of embryos not transferred. Article 5 discusses in details proposed regulations on embryo agreements, donation of embryos, abandoned embryos and disposition of those embryos.
Embryo agreements, which are binding agreements executed prior to embryo creation, contain provisions on the intended use and disposition of embryos; provision on the use and disposition of preserved embryos in
_____ 43. MODEL ACT, supra note 41, at §201(2)(a-l). 44. Id. at §203(1)(a-d). 45. Id. at §203(3)(c-d). 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 31
the event of divorce of the intended parents, if married, illness, incapacity, or death of one or both intended parents, or other change of circumstances such as separation or estrangement; and provisions on the time at which, and conditions under which, preserved embryos will be deemed abandoned and 46 the policy of the clinic and/or storage facility as to their disposition.
Issues arise when the embryo agreements are not in place or are declared invalid. As a case of first impression, Davis v. Davis47 involved the disposition of “frozen embryos” in a divorce action. The Davises did not execute a written agreement. The sole issue on appeal was “custody” of the seven frozen embryos stored in a Knoxville fertility clinic that had attempted to assist the Davises in achieving a much-wanted pregnancy during a happier period in their relationship. Mary Sue Davis originally asked for control of the frozen embryos with the intent to have them implanted in her own uterus, in a post-divorce effort to become pregnant. Junior Davis objected, claiming that he preferred to leave the embryos in their frozen state until he decided whether or not he wanted to become a parent outside the bounds of marriage. Based on its determination that the embryos were “human beings” from the moment of fertilization, the trial court awarded “custody” to Mary Sue Davis and directed that she be permitted the opportunity to have the embryos implanted. The Court of
Appeals reversed, finding that Junior Davis has a “constitutionally protected right not to beget a child where no pregnancy has taken place” and holding that “there is no compelling state interest to justify ordering implantation against the will of either party.” The Supreme Court of
Tennessee reasoned that to determine the outcome of the case, it was imperative to decide whether the pre-embryos should be considered persons or property. The Court ultimately decided that pre-embryos cannot be 48 considered persons under Tennessee law, and considering the _____ 46. Id. at §501(b-c). 47. 842 S.W. 2d 588, 589 (Tenn. 1992) (the Davises did not execute a written agreement specifying what disposition should be made of any unused embryos that might result from the cryopreservation process). 48. Id at 594-95. (citing Hamby v. McDaniel, 559 S.W.2d 774 (Tenn. 1977); Durrett v. Owens, 371 S.W.2d 433 (Tenn. 1963); Shousha v. Matthews Drivurself Service, 358 S.W.2d 471 (Tenn. 1962); Hogan v. McDaniel, 319 S.W.2d 221 (Tenn. 1958); as examples of cases that held that pre-embryos are not “persons” under Tennessee’s law). 32 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
other two views (preembryo as a human subject after fertilization and the preembryo deserves respect greater than that accorded to human tissue
but not the respect accorded to actual persons), the Court held that the “preembryos are not, strictly speaking, either “persons” or “property.” Instead, they “occupy an interim category that entitles them to special respect because of their potential for human life.”49 The Court concluded that any interest that Mary Sue Davis and Junior Davis have in the pre- embryos is not a true property interest.
The Davis decision is cause for concern. One issue is that the term “special respect” has never been defined by courts, not even by the Davis court. The term is highly ambiguous, which creates legal uncertainty and increased litigation over its meaning. The Davis Court noted that no statute exists in Tennessee, at the time of this opinion, governing the disposition of frozen embryos. Thus, this case creates difficulties for the public and the facilities storing the embryos to determine how to dispose of those unwanted (or unclaimed), frozen embryos.
VIII. SURROGACY AND RECENT CASE LAW
When embryos cannot be implanted in the intended mother, or the mother chooses not to undergo the procedure, surrogacy is an attractive alternative. In Italy, surrogacy is illegal.50 Thus, some childless Italian couples participate in surrogacy programs in other countries where surrogacy is legal and then bring the child back to Italy. However, these arrangements can sometimes have poor results. A couple from Colletorto used to method to become parents, only to have their child taken away by the Italian government. On January 27, 2015, the European Union Court on Human Rights held that Italy violated the rights of a married couple to claim parentage of a child with no biological ties to them born in Russia from a surrogate mother. After failing at several attempts to conceive a child
through assisted reproductive technology in Italy, a couple from Colletorto _____ 49. Davis, 842 S.W.2d at 597. 50. Surrogacy Legislation in Different Countries of the World, Nᴏᴠᴀ Cʟɪɴɪᴄ, http://nova-clinic.ru/enservices52/ (last visited Nov. 28, 2015). 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 33
(near Campobasso, in the region of Molise) traveled to Russia where surrogacy is legal. In March of 2011, the surrogate mother gave birth to a baby boy. The couple returned to Italy with the child and tried to register the child’s birth at the local office of vital statistics in 2011; however, since the office believed the birth certificate to contain false information, it refused to register the birth. Subsequently, the district court declared the child as abandoned since DNA testing showed no biological ties between the father and the child. The child was turned over to the authorities and placed in foster care.51 The couple then filed a claim with the European Union Court on Human Rights, which recognized their claim. Unfortunately, the European Union Court on Human Rights did not return the child to the couple, claiming that the child had formed a 52 strong bond with his foster family with which he has lived since 2013.
While in Italy, as noted above, surrogacy is illegal, in the United States, surrogacy is legal in some states. A surrogate, also called gestational carrier, is often used in the United States to help couples become parents. The ABA Model Act on ART describes gestational carrier as:
an adult woman, not an intended parent, who enters into a gestational agreement to bear a child, whether or not she has any genetic relationship to the resulting child. Both a traditional surrogate (a woman who undergoes insemination and fertilization of her own eggs in vivo) and a gestational surrogate (a woman into whom an embryo formed using eggs other than her own is 53 transferred) are gestational carriers.
Before a gestational carrier becomes pregnant, all the parties
_____ 51. Strasburgo dice sì al diritto di utilizzare una madre surrogate [Strasbourg says yes to the right to use a surrogate mother], Cᴏʀʀɪᴇʀᴇ Dᴇʟʟᴀ Sᴇʀᴀ (Jan. 27, 2015 12:36 PM) http://www.corriere.it/salute/15_gennaio_27/strasburgo-dice-si-diritto-utilizzare-madre- surrogata-d1e46a64-a616-11e4-96ea-4beaab57491a.shtml. 52. Id. 53. MODEL ACT, supra note 41, at §102(16). 34 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
involved must enter into gestational agreement, which is a contract between the intended parents and a gestational carrier intended to result 54 in a live birth. Since most states do not have on point legislation governing such agreements, attorneys could look at Article 7 of the ABA Model Act, which discusses gestational agreements and their requirements, for guidance.
The ABA Model Act authorizes gestational agreements in which the prospective gestational carrier agrees to pregnancy by means of assisted reproduction, the prospective gestational carrier, her legal spouse if she is married, and the donors relinquish all rights and duties as the parents of a child conceived through assisted reproduction, and the intended parents become the parents of the child.55 Such contracts must be drafted to list the parentage of the child (and thus, determinations of child custody), the rights and duties of all parties, amount payable for medical expenses, and other issues according to the specific facts of each case.
Most surrogacy agreements are preformed without any issues, but sometimes, disputes arise after the babies are born. In those cases, the outcome varies from state to state. Surrogacy is largely without regulation, with no authority deciding who may obtain babies through surrogacy or who may serve as a surrogate. Minnesota law is entirely silent on the issue of surrogacy. It has no statutes and no case law related to this area. In California, considered a friendly state for surrogacy, courts have upheld the validity of surrogacy contracts, meaning that the people who hire surrogates are very likely to keep the babies if a dispute arises. About 10 states have laws that allow for surrogacy but impose restrictions; several of those states require at least one parent to have a genetic relationship to the baby. However, the majority of states are silent on surrogacy. Legal uncertainty in some states means that babies are 56 sometimes left in limbo, their parentage left up to the courts.
Michigan law holds that surrogacy is contrary to public policy, and _____ 54. Id. at §102(15). 55. Id. at §701(1). 56. Saul, Stephanie, Building a Baby, With Few Ground Rules, NY TIMES, Dec. 12, 2009, http://www.nytimes.com/2009/12/13/us/13surrogacy.html?pagewanted=1&_r=4. 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 35
that surrogacy agreements are unenforceable. Thus, who are the baby's parents? In 2009, Amy Kehoe, working mostly over the Internet, handpicked the egg donor, a pre-med student at the University of Michigan. From the Web site of California Cryobank, she chose the anonymous sperm donor, an athletic man with a 4.0 high school grade- point average. On another website, surromomsonline.com, Ms. Kehoe found a gestational carrier who would deliver her baby. Finally, she hired the fertility clinic, IVF Michigan, which put together her creation last December.57 On July 28, the Kehoes announced the arrival of twins, Ethan and Bridget, at University Hospital in Ann Arbor. Overjoyed, they took the babies home on Aug. 3. A month later, the Keloes relinquished their babies to the local police. Bridget and Ethan are now in the custody of the surrogate who gave birth to them, Laschell Baker of Ypsilanti, Michigan. Ms. Baker obtained a court order after learning that Kehoe faces psychological health challenges. Because Michigan law states that surrogacy contracts are void and unenforceable, it was an easy matter for 58 Ms. Baker to go to court and have the Kehoes’ guardianship rescinded. When surrogacy agreements are unenforceable, children live under uncertainty about who their parents are. The issue of parentage is partly resolved in the Uniform Parentage Act, which most states have adopted.
IX. THE UNIFORM PARENT AGE ACT (UPA)
The Uniform Parentage Act (UPA) is a set of uniform rules for establishing parentage, which may be adopted by state legislatures on a state-by-state basis.59 The UPA was originally approved by the National Conference of Commissioners of Uniform State Laws (NCCUSL) in 1973; its current revision combines the UPA, the UPUFA (1989, with revisions), and the Uniform Status of Children of Assisted Conception Act (1989, with revisions) into a single act. It includes nine sections on genetic testing. The
UPA is used to officially establish a parent-child relationship between _____ 57. Id. 58. Id. 59. MINN. STAT. ANN. § 257.51-257.74 (2004) (was adopted in 1980 and is modeled on the Uniform Parentage Act.). 36 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
a child (or children) and unmarried parents. After the parent-child relationship is established, the court may make determinations regarding 60 child custody, child support, and parenting time, among others. Article 6 of the ABA Model Act discusses proposed rules on the children of assisted reproductive technology, and more specifically, on the parentage of such children. Article 6 of the ABA Model Act was not intended to conflict with or supersede provisions of the Uniform Parentage Act or applicable intestacy provisions of the Uniform Probate Code. Article 6, section 602 states that a donor is not a parent of a child conceived by means of assisted reproduction. Many states adopted this view.
X. LEGAL TESTS TO DETERMINE PARENTAGE IN THE UNITED STATES
In the United States, courts generally use of the following three legal
tests to determine parentage of a child conceived through the use of ART. The Marital Presumption is the most common test used by courts to determine parentage of a child born to parents who used ART to conceive such child: the mother of the child is the woman who gave birth to the child. However, sometimes that is not the case, such as in surrogacy cases where one woman gives birth to a child, but she is not the intended mother of that child. In such cases, when a dispute arises in regard to parentage, the court may issue a declaratory judgment to declare who is the child’s legal mother.
In regard to the father, for example, Minnesota law provides: “The donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor's wife is treated in law as if he 61 were not the biological father of a child thereby conceived.”
Minnesota law, however, is silent regarding egg donation. Montana law also does not address egg donation, but it addresses sperm donation.
_____ 60. Uniform Parentage Act Law & Legal Definition, USLEGAL, http://definitions.uslegal.com/u/uniform-parentage-act/. 61. MINN. STAT. ANN. § 257.56 subd. 2 (2014). 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 37
(1) If, under the supervision of a licensed physician and with the consent of the woman's husband, a wife is inseminated artificially with semen donated by a person who is not the husband, the husband is treated in law as if the husband were the natural father of a child conceived by artificial insemination. The husband's consent must be in writing and signed by the husband and the wife. The physician shall certify their signatures and the date of the insemination and file the husband's consent with the department of public health and human services, where it must be kept confidential and in a sealed file. However, the physician's failure to file the consent does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for good cause shown. (2) The donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor's wife is treated in law as if the donor is not the natural father of a child 62 conceived by artificial insemination.
Section 605 of the ABA Model Act limits the possibility of the legal spouse of a woman who gives birth to a child by means of assisted reproduction to challenge the parentage of the child to only cases in which within two years after learning of the birth of the child a proceeding is commenced to adjudicate parentage, and the court finds
that the legal spouse did not consent to assisted reproduction, before or
_____ 62. MONT. CODE ANN. §40-6-106 (2014). 38 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
63 after birth of the child.
Minnesota law provides, in part, for the purpose of declaring the nonexistence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (a), (b), or (c), only if the action is brought within two years after the person bringing the action has reason to believe that the presumed father is not the father of the child, but in no event later than three years 64 after the child's birth.
The Minnesota Supreme Court addressed this issue for purposes of determining intestate succession. The issue on appeal was whether the statute of limitation imposed by Minn. Stat. §257.55, subd. 1, applied to probate proceedings, since the Probate Code recognized that cases may arise in which a parent-child relationship must be established in order to determine heirship for purposes of intestate succession. In this particular case, Leonard Jotham married Margaret Jotham in 1942, and Diann Nelson was born to Margaret Jotham during this marriage. Leonard and Margaret Jotham divorced in 1947. Sandra Barnett was born to Margaret Jotham 279 days after the judgment of divorce was entered. Barnett's birth certificate identifies Leonard Jotham as her father, but there has been no judicial determination of Jotham's paternity of Barnett, and the 65 parties agreed that Jotham did not acknowledge paternity in writing.
Leonard Jotham, who did remarry, died intestate on June 8, 2004. His widow filed a Petition for Formal Adjudication of Intestacy, Determination of Heirs, and Appointment of Administrator in which she named herself as Jotham's surviving spouse and Nelson and Barnett as his daughters. Nelson objected to the petition, contending that Jotham is not Barnett's father, and thus Barnett is not entitled to share in Jotham's
_____ 63. MODEL ACT, supra note 41, at §605. 64. MINN. STAT. ANN. §257.57, subdiv. 1(b) (2014). 65. In re Estate of Jotham, 722 N.W.2d 447, 449 (Minn. 2006). 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 39
66 estate. The issue was one of first impression for the Court. The Court held that “that when a party benefits from a presumption of paternity found in the Parentage Act and relies on that presumption to establish paternity in a probate proceeding, the probate court must apply the Parentage Act in its entirety to determine paternity for purposes of intestate succession.”
Therefore, probate courts cannot pick and choose among the provisions 67 of the Parentage Act when ascertaining parentage for probate purposes. The Parentage Act permits presumptions of paternity to be rebutted in "an appropriate action" by clear and convincing evidence. The presumption is rebutted by a court decree establishing paternity of the child by another man. However, the Parentage Act does not define "an appropriate action." Thus, the Appellant also claimed that this action was
“an appropriate action” to rebut the presumption of paternity. The Court disagreed, holding “Parentage Act paternity presumption may be rebutted only by one who meets the standing and timeliness requirements for an action to declare the nonexistence of the presumed father-child relationship under section 257.57.” Since the appellant’s action did not satisfy the 68 standing and timeliness requirements, it was not “an appropriate action.”
Montana also adopted the Uniform Parentage Act; however, contrary to Minnesota, Montana law does not impose a statute of limitation: an action may be commenced at any time for the purpose of declaring the existence or nonexistence of the father and child relationship presumed 69
under 40-6-105(1)(a), (1)(b), or (1)(c). The second legal test is intent of the parties.70 Parties usually sign a gestational agreement in which the gestational carrier agrees to terminate her parental rights to any children resulting from the ART procedures, and to sign any forms necessary for the issuance of a replacement birth 71 certificate naming the intended parents as the parents of such children. _____ 66. Id. at 452. 67. Id. at 452-53. 68. Id. at 455. 69. MONT. CODE ANN. §40-6-105(1) (2014). 70. See, Johnson v. Calvert, 851 P.2d 776, 782 (1993) cert. denied, 510 U.S. 874 (1993); Nᴇᴠ. Rᴇᴠ. Sᴛᴀᴛ. § 126.045(2) (2009). 71. Raftopol v. Ramey, 12 A.3d 783 (Conn., 2011). 40 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
Mark and Crispina Calvert, a married couple, desired to have a child. Crispina was forced to undergo a hysterectomy in 1984. Since her ovaries remained capable of producing eggs, the couple eventually considered surrogacy. In 1989 Anna Johnson heard about Crispina's plight from a coworker and offered to serve as a surrogate for the Calverts. On January 15, 1990, Mark, Crispina, and Anna signed a gestational agreement providing that an embryo created by the sperm of Mark and the egg of Crispina would be implanted in Anna and the child born would be taken into Mark and Crispina's home as their child. Anna agreed she would relinquish all parental rights to the child in favor of Mark and Crispina. In return, Mark and Crispina would pay Anna $10,000 in a series of installments, the last to be paid six weeks after the child's birth. Mark and Crispina were also to pay for a $200,000 life insurance policy on Anna's life. The zygote was implanted on January 19, 1990. Less than a month later, an ultrasound test confirmed Anna was pregnant. Unfortunately, relations deteriorated between the two sides. In July 1990, Anna sent Mark and Crispina a letter demanding the balance of the payments due her or else she would refuse to give up the child. The following month, Mark and Crispina responded with a lawsuit, seeking a declaration they were the legal parents of the unborn child. Anna filed her own action to be declared the mother of the child, and the two cases were eventually consolidated. The parties agreed to an independent guardian ad litem for the purposes of the suit. The child was born on September 19, 1990, and blood samples were obtained from both Anna and the child for analysis. The blood test results excluded Anna as the genetic mother. At trial in October 1990, the parties stipulated that Mark and Crispina were the child's genetic parents. After hearing evidence and arguments, the trial court ruled that Mark and Crispina were the child's "genetic, biological and natural" father and mother, that Anna had no parental rights to the child, and that the surrogacy contract was legal and enforceable against Anna's claims. Anna appealed from the trial court's judgment. The Court of Appeal for the Fourth District, Third Division, affirmed. The Supreme Court of California granted review, and it affirmed the lower courts’ decision.72 The Supreme Court noted, “In
_____ 72. Johnson v. Calvert, 851 P.2d 776 (Cal., 1993). 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 41
deciding the issue of maternity under the [Uniform Parentage] Act we have felt free to take into account the parties' intentions, as expressed in the surrogacy contract, because in our view the agreement is not, on its 73
face, inconsistent with public policy.” The third legal test to determine parentage is the genetic relatedness of the parties.74 Anthony and Shelly Belsito, were married September 26, 1992. They decided they wanted a large family. Unfortunately, approximately one month prior to their marriage, Shelly had to undergo a hysterectomy as a result of recently discovered cervical cancer. Her physician had to remove her uterus, but was able to save her ovaries so that she could continue to produce eggs. Carol S. Clark, Shelly's younger sister, knew how much having a family meant to Shelly and Tony so, at that time, Carol told Shelly that, if she could, she would carry Shelly and Tony's baby for them. In October 1993, Shelly and Tony were accepted into the University Hospitals' program for in vitro fertilization: Shelly and Tony as the genetic parents and Carol as the surrogate host. Carol was to receive no compensation for her role as a surrogate for Shelly and Tony's baby. Carol planned to be no more than an aunt to the child. On February 10, 1994, Shelly Belsito was admitted to MacDonald Hospital for the retrieval of the eggs from her ovaries. A total of ten eggs was recovered from Shelly. Tony's sperm was collected in a labeled container, washed, and added to the eggs. On February 12, 1994, Carol Clark was admitted to MacDonald Hospital for transfer of the embryos into her uterus. The two fertilized eggs were transferred into Carol's uterus by her physician. Shelly was also present at the transfer. Approximately two weeks after the transfer, the parties went to the hospital for a pregnancy test, which confirmed that
Carol was carrying Shelly and Tony's child. In preparing for baby’s birth, Shelly spoke with Akron City Hospital regarding the birth certificate. She was told that, according to Ohio law, the woman who gave birth to the child will be listed on the birth certificate as the child's mother. Further, she was told that because Carol, the surrogate, and Tony, the genetic and biological father, are not married, the child will be considered illegitimate,
_____ 73. Id. at 783. 74. See, Culliton v. Beth Isr. Deaconess Med. Ctr., 756 N.E.2d 1133, 1135 (Mass. 2001); Belsito v. Clark,
644 N.E.2d 760, 765-66 (Ohio C.P. 1994). 42 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
and will be listed on his birth records as "Baby Boy Clark" and not as "Baby Boy Belsito." As a result of that information, Anthony and Shelly Belsito filed a complaint for declaratory judgment with the court on September 14, 1994. Court of Common Pleas of Ohio, Summit County, held that under Ohio law,
when a child is delivered by a gestational surrogate who has been impregnated through the process of in vitro fertilization, the natural parents of the child shall be identified by a determination as to which individuals have provided the genetic imprint for that child. If the individuals who have been identified as the genetic parents have not relinquished or waived their rights to assume the legal status of natural parents, they shall be considered the 75 natural and legal parents of that child.
All the aforementioned methods, and ART itself, raise ethical questions such as adoption relating to embryos, disposition of embryos, consideration in favor, and against disclosing donor conception to offspring, and sex selection and preimplantation genetic diagnosis.
XI. ETHICAL CONSIDERATIONS OF ART
In the United States, the Ethics Committee of the American Society for Reproductive Medicine (the Committee) issues reports on several ethical issues relating to assisted reproductive technology. Among these reports, the Committee has issued opinions on the following:
1. “ADOPTION” RELATING TO EMBRYOS
In a 2013 report, the Committee criticizes the use of the term “adoption” relating to embryos because it is inaccurate, and the Committee _____ 75. Belsito, 644 N.E.2d at 767. 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 43
believes that it should be avoided. The Committee wrote in this report that the two family-building options that provide children who are typically genetically unrelated to the individuals raising them involve: a) the use of donated embryos, and b) the adoption of living children. According to the
Committee, the embryos’ donation is an important option for patients considering the disposition of cryopreserved embryos in excess of those needed to meet the patients' own reproductive goals. Adoption, on the other hand, refers to a specific legal procedure that establishes or 76
transfers parentage of existing children. The Ethics Committee already affirmed the ethical appropriateness of patients donating embryos to other patients for family building or for research. Some groups, however, have used the term “adoption” to describe the process by which infertile patients acquire embryos from others for their own family-building needs. Such groups are seeking to 77 establish the legitimacy of embryo “adoption” as a process.
The Ethics Committee found that the term “adoption” was deceptive because it reinforced a conceptualization of the embryo as a fully entitled legal being and thus, it could lead to a series of procedures that are not appropriate, based on the American Society for Reproductive Medicine (ASRM) Ethics Committee's consideration of the embryo’s status. In previous reports, the Committee decided that embryos should be accorded an elevated moral status compared with other human tissues, but that they should not be viewed as persons. In fact, in 1986, the Committee stated,
The (pre)embryo is due greater respect than other human tissue because of its potential to become a person and because of its symbolic meaning for many people. Yet, it should not be treated as a person, because it has not yet developed the features of personhood, it is not yet established as ______76. Defining Embryo Donation: a Committee Opinion, ETHIC COMMITTEE OF THE AMERICAN SOCIETY FOR REPRODUCTIVE MEDICINE, available at http://www.sart.org/uploadedFiles/ASRM_Content/News_and_Publications/Ethics_ Committee_Reports_and_Statements/Defining%20embryo%20donation2013.pdf. 77. Id. 44 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
developmentally individual, and it may 78 never realize its biologic potential.
The Committee noted that, “Equating an embryo with an existing child and applying the procedural requirements of adoption designed to protect existing children to embryos is not ethically justifiable and has the potential for harm.”79 According to the Committee, one of the problems is that the ethical directive to protect an existing child is not applicable to human embryos, which are not persons. Also, the procedures would place unwarranted burdens on the recipient patient (i.e. home visits, legal fees, 80 and judicial review).
2. DISPOSITION OF EMBRYOS
In another report, the Ethics Committee discussed the disposition of abandoned embryos. The Committee stated that programs should create and enforce written policies on the designation, retention, and disposal of abandoned embryos. In the absence of program-specific policies, it is ethically acceptable for a program or facility to consider embryos to have been abandoned if at least 5 years have passed since contact with an individual or couple, diligent efforts have been made to contact the individual or couple, and no written instructions from the couple exist concerning disposition. The Ethics Committee concluded that if a program determines that an embryo has been deemed abandoned, the program may dispose of the embryos by removal from storage and thawing without transfer, and “In no case should embryos deemed 81 abandoned be donated to other couples or be used in research.”
_____ 78. Id. 79. Id. 80. Id. 81. Disposition of Abandoned Embryos: a Committee Opinion, ETHIC COMMITTEE OF THE AMERICAN SOCIETY FOR REPRODUCTIVE MEDICINE, available at http://www.sart.org/uploadedFiles/ASRM_Content/News_and_Publications/Ethics_Committee_Reports_ and_Statements/abandonedembryos.pdf. 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 45
3. CONSIDERATION IN FAVOR, AND AGAINST DISCLOSING DONOR
CONCEPTION TO OFFSPRING
The Ethics Committee issued an opinion in 2013 discussing consideration in favor, and against disclosing donor conception to offspring. Among the arguments in favor of disclosing donor conception, the Committee considered the following: the fundamental interest of the offspring in knowing their biological origins; avoidance of secrets in the family that can strain family relationships; avoidance of an accidental disclosure that may rise with the growing frequency of genetic testing; protection against later inadvertent consanguinity; knowledge about genetic heritage and accurate information about potential health problems. The Committee also noted that some that some proponents of disclosure argued that the United Nations Convention on the Rights of the Child provision regarding identity should be interpreted to encompass 82 disclosure of donation.
Among the arguments against disclosing donor conception to offspring, the Committee listed the following: telling the child of his or her conception by donation will subject the child to social and psychological turmoil, which will be especially disruptive if the child wants to learn more about the donor but cannot; nondisclosure allows parents to keep the matter of infertility private; nondisclosure also may be important to protect the privacy of donors (rates of donation have declined significantly in jurisdictions such as the United Kingdom that require that identifying information be available on request). Thus, the Committee determined that, “Because of each person's fundamental interest in knowing their genetic heritage and the importance of their ability to make informed health care decisions in the future, the Ethics Committee supports disclosure about the fact of donation to children.” The Committee, however, recognized that decisions about disclosure are highly 83 personal.
_____ 82. Informing Offspring of their Conception by Gamete or Embryo Donation: a Committee Opinion, ETHIC
COMMITTEE OF THE AMERICAN SOCIETY FOR REPRODUCTIVE MEDICINE, available at http://www.sart.org/uploadedFiles/ASRM_Content/News_and_Publications/Ethics_Committee_Reports_ and_Statements/informing_offspring_donation.pdf. 83. Id. 46 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
4. SEX SELECTION AND PREIMPLANTATION GENETIC DIAGNOSIS
In a 2004 opinion, the Ethics Committee decided that preimplantation sex selection was appropriate to avoid the birth of children with genetic disorders, but it was not acceptable when used solely for nonmedical reasons.84 Arguments for preimplantation genetic diagnosis (PGD) and sex selection make two primary appeals. The first is to the right to reproductive choice on the part of the person or persons who seek to bear a child: sex selection is a logical extension of this right. The second is an appeal to the important goods to be achieved through this technique and the choices it allows: the medical good of preventing the transmission of sex-linked genetic disorders such as hemophilia A and B, Lesch-Nyhan syndrome, Duchenne-Becker muscular dystrophy, and Hunter syndrome.85 Arguments against PGD and sex selection include; the potential for inherent gender discrimination, inappropriate control over nonessential characteristics of children, unnecessary medical burdens and costs for parents, and inappropriate and potentially unfair use of limited medical resources for sex selection rather than for more genuine and urgent medical needs. In weighing those arguments, the Committee recommended the following: a.) preimplantation genetic diagnosis used for sex selection to prevent the transmission of serious genetic disease is ethically acceptable, b.) In patients undergoing IVF, PGD used for sex selection for nonmedical reasons holds some risk of gender bias, harm to individuals and society, and inappropriateness in the use and allocation of limited medical resources; thus, such use of PGD therefore should not be encouraged, and c.) the initiation of IVF with PGD solely for sex selection holds even greater risk of unwarranted gender bias, social harm, and the diversion of medical resources from genuine medical need. It 86 therefore should be discouraged.
_____ 84. Sex Selection and Preimplantation Genetic Diagnosis, ETHIC COMMITTEE OF THE AMERICAN SOCIETY FOR REPRODUCTIVE MEDICINE, available at http://www.sart.org/uploadedFiles/ASRM_Content/News_and_Publications/Ethics_Committee_Reports_ and_Statements/Sex_Selection.pdf. 85. Id. 86. Id. 2016] ASSISTED REPRODUCTIVE TECHNOLOGY 47
In Italy, The National Committee on Bioethics issued an opinion in2005 on “adoption for birth” of abandoned embryos. The Committee recommended that new legislation should be drafted regarding the legality and method of “adoption by birth” for abandoned cryopreserved embryos; that such abandonment be ascertained by strict procedures; that new legislation formulate appropriate criteria to identify couples or women willing to “adopt”; that adoption be protected from commercialization or financial gain; and that the child born from such adoption be given the same 87 legal rights as a child born using assisted reproductive technology.
In 2007, the National Committee on Bioethics issued an opinion on the destiny of embryos created using assisted reproductive technology that are no longer suitable for implantation due to anomalies. The Committee examined the possibility that criteria be developed to ascertain the death of the embryo to make possible the donation of the embryonic cells for research similarly to a donation of organs ex mortuo. If withdrawal of live embryonic cells from a deceased embryo can be analogized with the withdrawal of organs and tissues from a deceased 88 individual, then the donation is ethical.
XII. CONCLUSION
Unfortunately, the number of cases in which surrogacy agreements are not honored or parties cannot agree on the parentage on a child conceived through the use of assisted reproductive technology is increasing each year. The use of assisted reproductive technology and the advancement of research in the medical field are making enormous progress; the law, however, still needs to catch up to these new
developments. This boom created legal and ethical dilemmas that need to
_____ 87. L’Adozione per la Nascita (APN) degli Embrioni Crioconservati e Residuali Derivanti da Procreazione Medicalmente Assistita (PMA) [Adoption for the Birth of Cryopreserved Embryos and Residual Arising out of Assisted Reproduction], Cᴏᴍɪᴛᴀᴛᴏ Nᴀᴢɪᴏɴᴀʟᴇ ᴘᴇʀ ʟᴀ Bɪᴏᴇᴛɪᴄᴀ (Nov. 25, 2005), available at http://www.palazzochigi.it/bioetica/pareri_abstract/abstract_adoz_per_nascita3.pdf. 88. Parere del Comitato Nazionale per la Bioetica sul Destino degli Embrioni Derivanti da PMA e non piu` Impiantabili, [Opinion of the Committee on the National Bioethics of Embryos Resulting from PMA], Cᴏᴍɪᴛᴀᴛᴏ Nᴀᴢɪᴏɴᴀʟᴇ ᴘᴇʀ ʟᴀ Bɪᴏᴇᴛɪᴄᴀ (Oct. 26, 2007), available at http://www.palazzochigi.it/bioetica/pareri_abstract/Abstract_embrioni_non_impiantabili.pdf. 48 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:17
be addressed. The determination of parentage of ART children, and subsequent child custody, parenting time, and child support issues are among the most common legal issues that arise in disputes regarding children conceived through the use of assisted reproductive technology. Oftentimes, issues relating to the custody of embryos created during a marriage may arise in divorce proceedings. Sometimes, issues on the parentage of a child and time of conception arise in disputes regarding wills and estates as seen in the case of the Estate of Jotham. Aside from the legal issues that might arise, ethical considerations, such as ethical questions on adoption relating to embryos, disposition of embryos, consideration in favor, and against disclosing donor conception to offspring, and sex selection and preimplantation genetic diagnosis, are also a growing concern to modern society. Federalism Lost: The Roberts Court's Failure to Continue * Rehnquist’s Federalism Revolution
** JOSHUA R. MEDDAUGH, PH.D *** JOHN R. THEADORE, ESQ
I. ABSTRACT
Chief Justice Rehnquist, the Rehnquist Court, and the era of devolution have spawned a great deal of scholarly attention on the Court’s role in federalism. The Rehnquist Court itself has been the decider in a number of cases that have strengthened the role of state government under the 10th Amendment, and has led some in the field to argue that this Court waged a revolution of sorts to reestablish the lines of federalism. To find
out if this argument has merit, we ask if the conservative justices of the Rehnquist and Roberts’ Courts based their vote decisions on their ideological policy attitudes or on their belief in federalism. We examine both conservative Courts to accomplish our goal, which is two fold. First, we are generally examining whether the prescribed federalism revolution of the Rehnquist Court is still being waged today, leading to the argument that conservative ideology produces more rulings in favor of state sovereignty, and if not, secondly, make the argument that the federalism doctrine of the Rehnquist Court was distinctive to that Court and not all conservative leaning Courts. In the end, this work seeks to add to the expanding literature on judicial decision-making, generally, and the Rehnquist and Roberts Courts, specifically.
_____ * This work would not be possible without the tireless effort of our Research Assistants Lizeth Damaso and Caitlyn Huffschmidt, and beneficial comments/suggestions from Joshua J Dyck, Ph.D., Christina L. Boyd, Ph.D., Claude E. Welch, Ph.D., Lizeth Damaso and Caitlyn Huffschmidt. ** Assistant Professor of Political Science, Clayton State University, Morrow, Georgia. *** Associate Attorney at Law, Law Offices of Brian P. Rourke, P.C., Liberty, New York.
49 50 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
II. INTRODUCTION
The term “federalism” has had a significant association with the United States since the Framers of the Constitution met to create a stable the country that established a dual government structure comprised of a state and a strong national government that preserved the states' lawmaking abilities through the use of the Tenth Amendment.1 The Framers believed that the state government structure allowed for easier passage of power to a national government, and that the state governments would limit the abuses that this new central government could potentially make.2 This emphasis made by the Framers, and the importance placed on state sovereignty, went as far as creating both the Tenth and Eleventh Amendments, the passage of which guaranteed that all rights not delegated by the Constitution are reserved to the states, and forbidding of 3
suit against the states, respectively. To the Framers, federalism provided a means of self-determination, as well as a check on government oppression. The Framers believed federalism allowed the national government to work within a limited scope of its enumerated powers and the states would employ the remainder of the sovereign authority, subject to the restraint of interstate competition of the other states.4 Regardless of the previous, the majority of the Framers took for granted the sovereign powers of the states and focused on defining their powers through the use of negative implications, while specifically listing the powers of the national government. Although this lack of detail seemed to provide little problem for the first one hundred fifty years of the country’s establishment, the nebulous delineation of state and federal government allowed for the growth of the national government at the states’ expense 5 during the Great Depression. _____ 1. Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yᴀʟᴇ L.J. 1425, 1439- 40 (1987). 2. GARRY WILLS, EXPLAINING AMERICA 172-73 (1st ed. 1981). 3. Patrick Garry, A One-Sided Federalism Revolution: The Unaddressed Constitutional Compromise on Federalism and Individual Rights, 36 Sᴇᴛᴏɴ Hᴀʟʟ L. Rᴇᴠ. 851, 872 (1987). 4. William Pryor Jr., Madison’s Double Security: In Defense of Federalism, the Separation of Powers and the Rehnquist Court, 53 Aʟᴀ. L. Rᴇᴠ. 1167, 1175 (2002). 5. WILLS, supra note 2, at 851-853. 2016] FEDERALISM LOST 51
For over half a century, from 1937 to 1986, federalism was largely a forgotten issue.6 But, prior to 1937, the Court was, by leaps and bounds, more willing to slow the infringement of federal power on state sovereignty.7 Throughout the nineteenth and early twentieth centuries, the Supreme Court pursued a federalist vision, using the Tenth Amendment as a limit on congressional power. But in the aftermath of the court-packing scandal, the Court quickly adapted to a more nationalist approach, extending the powers of the federal government through the use of New Deal policies.8 By the end of the 1936 term, the Court had eliminated most of the federalism constraints on Congress’ power and was acting in complete deference to Congress with regard to any issues with the Tenth Amendment.9 This trend, which continued for the next half-century, through and including the Warren Court, only began to change when 10 Justice Rehnquist joined the Burger Court in the 1970’s. William Rehnquist came to the Burger Court with a vocal willingness to limit Congress’ power through the Tenth Amendment.11 In cases such as National League of Cities, Jones v. Rath, and Arizona v. Snead, Justice Rehnquist’s legal vision supporting state sovereignty was being established in the written record of the highest Court. As a result, a number of high- ranking individuals began to take notice, including future president Ronald Reagan. When Reagan, a well-known champion of federalism’s preservation, had the opportunity to name the next chief justice upon
Burger’s retirement, William Rehnquist’s name was near the top of the list.12 Rehnquist’s established voting record on the previous cases and his fourteen and one-half years as an Associate Justice, as well as his consistent adherence to federalism and protection of state’s rights _____ 6. Id. 7. Anuj C. Desai, Filters and Federalism. Public Library Internet Access, Local Control, and the Federal Spending Power, 7 U. PA. J. CONST. L. 3, 73 (2004). 8. DAVID B. WALKER, THE REBIRTH OF FEDERALISM: SLOUCHING TOWARD WASHINGTON 95 (Christopher J. Kelaher, 1995). 9. Desai, supra note 7, at 89-90. 10. WILLS, supra note 2, at 864-65. 11. JOHN W. DEAN, THE REHNQUIST CHOICE: THE UNTOLD STORY OF THE NIXON APPOINTMENT THAT REDEFINED THE SUPREME COURT 16 (2001). 12. HENRY ABRAHAM JR., JUSTICES AND PRESIDENTS: A POLITICAL HISTORY OF APPOINTMENTS TO THE SUPREME COURT 275 (3rd ed. 1992). 52 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
from intrusion from the federal government,13 meant the nomination of Rehnquist to chief justice came with little surprise.
III. THE ROLE OF THE CHIEF JUSTICE
As we know, the mark of any era of the Supreme Court is ultimately determined by the nature of the decisions it renders during the term of a Chief Justice. The Chief Justice often sets the tone for which the Court will follow when weighing in on major decisions throughout his term, and history looks to the impact of the Court for the way in which it impacted the direction of the Country. As a result, the most important role of the Chief Justice is establishing precedent that will leave a lasting impact on both the study of constitutional law and this country as a whole. Among the most important cases that any given term of the Supreme Court must rule on are cases involving federalism. The outcome of how a Court decides these cases may have lasting impacts on the relationship between the states and federal government for decades after the decision is rendered. Therefore, when Justice Rehnquist became the Chief Justice in the mid-eighties, a change in Court vision loomed, and by the mid-1990s and the subsequent revival of federalism from its dormant state,14 the Rehnquist Court, and the Chief Justice himself, solidified their roles in Supreme Court history. By aggressively using judicial review to restore power to the states, the 1990s saw a trend, albeit slow, towards curbing the power of the federal government. The Rehnquist Court sought, through the use of the Tenth Amendment,15 to restore legitimacy and functions of the powers of the states by limiting the powers of the executive and legislative branches under the Commerce Clause. By limiting the powers of the executive and legislative branches under the Commerce Clause, through the use of the Tenth Amendment,16 the Rehnquist Court sought to restore legitimacy to the
powers of the states. Consequently, Chief Justice _____ 13. Id. 14. Daniel Hulsebosch, Bringing the People Back In, 80 N.Y.U. L. REV. 653, 658-59 (2005). 15. Robert Shaw, Comment. The States, Balanced Budgets, and Fundamental Shifts in Federalism, N.C. L. REV. 82, 1195-1217 (2004). 16. Id. 2016] FEDERALISM LOST 53
Rehnquist and his federalism doctrine have received much academic attention. Qualitative,17 as well as quantitative,18 research has studied a wide variety of federalism topics in relation to the Rehnquist Court, but few have tried to uncover whether this doctrine was indeed related to this specific Court, or whether the emphasis on re-establishing state sovereignty is a trait of all conservative leaning courts. Specifically, we ask if the conservative justices of the Rehnquist and Roberts Court based their vote decisions on their ideological policy attitudes or on their belief in federalism. By examining both Chief Justice Rehnquist and Chief Justice Roberts, from nomination to opinions/dissents, our main hypothesis states that there will be more state sovereignty promoting rulings during the Rehnquist Court than the Roberts Court, because the Justices in the Rehnquist era not only were conservative, but the importance of re-establishing distinct lines of federalism were emphasized by Chief Justice Rehnquist.
This hypothesis arises from the attitudinal model of decision-making,19 which argues that justices base their vote decisions on their personal ideologies and beliefs and the literature on the power of the Chief Justice,20 that purports the Chief Justice’s power of opinion assignment influences Court decision-making. Therefore, we argue that there was something special about federalism cases to Chief Justice Rehnquist that caused the Justices of the Rehnquist Court to rule in favor of said cases more frequently than the current conservative Supreme Court. Specifically, we are attempting to demonstrate that the conservative
_____ rd 17. MARTIN H. BELSKY, THE REHNQUIST COURT: A RETROSPECTIVE 275 (3 ed. 2002); A. Brooke Overby, Our New Commercial Law Federalism, TEMP. L. REV. 76, 297-305 (2003); GARRY, supra note 3, at 851. 18. Forrest Maltzman & Paul Wahlbeck, Opinion Assignment on the Rehnquist Court, JUDICATURE 89, 121-126 (2005); Paul Collins, Towards an Integrated Model of the U.S. Supreme Court’s Federalism Decision Making, PUBLIUS: J. FEDERALISM 37, 505-531 (2007); Christopher Parker, Ideological Voting in the Supreme Court Cases, 1953- 2007, JUST. SYS. J. 32, 206-234 (2011). 19. JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 86 (2002). 54 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
ideology of the Rehnquist Court, which manifested as support for federalism, was distinct to this Court.
IV. THE BEGINNINGS OF A DOCTRINE: THE REHNQUIST NOMINATION
The original nomination of William Rehnquist to the Supreme Court came as a surprise to many, including the Justice himself. Rehnquist believed President Nixon and his administration knew very little of him or his judicial philosophy, leading Rehnquist to believe that he was not realistically in the running to fill the vacant seats left by either Justice Black or Justice Harlan.21 Nixon wanted judicial conservatives with constructionist values, but his true emphasis was to stack the courts with members holding similar Republican values.22 It was of the highest importance to Nixon to move from the Warren Court, which he considered liberal and activist, to a Court reminiscent of the John Birch Society.23 Based on this guideline, Nixon nominated the following individuals: Warren Burger, a strict-constructionist with a right-leaning judicial philosophy for the position of Chief Justice;24 Harry Blackmun, a life-long Republican and personal friend, whose moderate tendencies caused him to vote consistently with the liberals after;25 and Lewis Powell, a decided moderate who built a reputation for being the swing 26 vote for compromise. Based on Nixon's nomination pattern as evidenced in the individuals enumerated above, it is easy to understand why Rehnquist was surprised with his nomination, as he was a political conservative, a self-
_____ 20. MALTZMAN, supra note 18, at 121-126. 21. ABRAHAM, supra note 12 at 18. 22. DEAN, supra note 11 at 1-28. 23. HERMAN SCHWARTZ, PACKING THE COURTS: THE CONSERVATIVE CAMPAIGN TO REWRITE THE CONSTITUTION 103 (1988). The John Birch Society is a political action group that supports candidates who are tout values of limited government, personal freedoms, and a Constitutional-Republic. Considered extremely right wing, Nixon wanted his nominations to resemble the group only not to be quite as strict. 24. KIM ISAAC EISLER, A JUSTICE FOR ALL: WILLIAM J. BRENNAN, JR., AND THE DECISIONS THAT TRANSFORMED AMERICA 202 (1993). 25. BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 86-87 (1979). 26. JOHN JEFFERIES, JUSTICE LOUIS F. POWELL: A BIBLIOGRAPHY 12 (2001 ed.). 2016] FEDERALISM LOST 55
described Goldwater Republican with a lucid,27 intellectually and legally- oriented alive-mind, who possessed a devastating sense of humor and wit,28 which he used to make his opinions known. It was Rehnquist’s legal prowess and strong opinions that led his career aide Mary Lawton to say that the law and his orientation to state’s rights always came first to him when making decisions, regardless of whether his colleagues agreed with him or not.29 It was Rehnquist’s awareness of these strong personality and political characteristics, which he knew to be so different from those of his colleagues that caused Rehnquist’s surprise when Nixon nominated him.
V. ASSOCIATE JUSTICE REHNQUIST AND HIS JUDICIAL PHILOSOPHY
Within months of taking his seat, Justice Rehnquist began establishing a judicial philosophy that had elements of ideological conservatism and a strong orientation towards preserving state sovereignty. The former can best be seen in cases that involve Congress’ Commerce Clause power, specifically in instances where federal law conflicts or interferes with interstate commerce. In the earliest of these records, Rehnquist’s deferential 30 posture to state authority is easily recognizable.
Prime examples of this deference to the power and authority of the states is best seen in a number of cases prior to Rehnquist taking over the role of Chief Justice. In Rehnquist’s majority opinion in National League 31 of Cities v. Usery, the Court, for the first time since the Court Packing Scandal of 1937, ruled to limit Congress’s Commerce Clause power. The majority held that the 1974 amendments that were added to the Fair Labor Standards Act of 1938 (FLSA) that regulated minimum wage and the overtime pay of state and local employees was an unconstitutional breach of Congressional authority. In light of the Tenth Amendment, Rehnquist argued that Congress is, “prohibited from enacting legislation, which
_____ 27. DONALD BOLES, MR. REHNQUIST: JUDICIAL ACTIVIST THE EARLY YEARS 112 (1st ed. 1987). 28. ABRAHAM, supra note 12, at 16. 29. BOLES, supra note 27, at 121. 30. SUE DAVIS, JUSTICE REHNQUIST AND THE CONSTITUTION 138 (1989). 31. 426 U.S. 833, 851-52 (1976). 56 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
operates to directly displace the States' freedom to structure integral operations in areas of traditional governmental functions," and furthermore, that regardless of the fact that Congress’s Commerce power is “plenary,” the expansive use of such a power has run afoul and needs to be limited.32 This decision lead Rehnquist to later argue that if the, “Court cannot find direct, explicit conflict between the federal and state 33 laws, the latter should be upheld”. Rehnquist follows the doctrine set forth by NLC in his dissenting opinion in Jones v. Rath Packing Company.34 In this case, the majority held that the Fair Packing and Labeling Act of 1966 implicitly preempted a California State law that regulated weight variations in labeling; therefore, any state law regulating weight and labeling variations is superseded by this federal act. In his dissent, Rehnquist argued that the majority seriously misconceived the doctrine of preemption and failed to highlight any conflict between state and federal law.35 As a result, he argued that the California law should be upheld.36 In Douglas v. Seacoast Products, Inc., Justice Rehnquist again discussed the doctrine of preemption.37 Although concurring in part with the majority, Rehnquist dissented in part pertaining to preemption. By stating, with regard to preemption, that the majority, “cut a somewhat broader swath than is justifiable,” they failed to adequately consider Virginia’s interest in the State’s conservation of fish and game. Rehnquist argued that by failing to 38
do so the majority may be overruling necessary state regulatory action. Lastly, in Arizona Public Service Co. v. Snead, Rehnquist wrote a concurring opinion where he once more questions the majority’s willingness to uphold the preemption doctrine without properly uncovering conflict 39 between state and federal law. In pursuing this path,
_____ 32. Id. 33. DAVIS, supra note 30, at 137. 34. 430 U.S. 519 (1977). 35. Displacement of state law or regulation with federal law or regulation. 36. Jones, 430 U.S. at 543-44. 37. 431 U.S. 287-88 (1977). 38. Id. 39. 441 U.S. 141, 151-52 (1979). 2016] FEDERALISM LOST 57
40 he argues, the Court is doing a disservice to the states. Evidence of this judicial philosophy continues in Rehnquist’s dissents in Kassel v. Consolidated Freightways Corp. and Armco Inc v. Hardesty. Rehnquist argued that the majority in Kassel, “seriously intruded upon the fundamental rights of States to pass laws to secure the safety of their citizens,”41 when they ruled an Iowa State law limiting the length of truck beds was a violation of interstate commerce.42 Also, by ruling that a West Virginia State tax that has an exemption for in-state business, does not necessarily give an economic advantage to in-state business.43 Rehnquist solidified his role in protecting states from the crushing regulation they faced under Congress’ commerce power, even though he found himself, more
times than not, on the opposite side of the majority. Regardless of the fact that Rehnquist’s state deference position did win a
battle in White v. Massachusetts Council of Construction Employers (where a mayor’s executive order required that at least half of all Boston’s workforce on construction projects funded by either city money or a combination of city and federal money, was to be composed of area residents)44 the writing was on the wall regarding the Court’s shifting
position on Congress’ commerce power and the ruling in NLC. In 1976, NLC set a new precedent, and signaled what was believed at the time to be a change in ideological vision. In all reality, the Court, over
the following eight years slowly shifted its stance on the Tenth Amendment’s state sovereignty protections and re-established the precedent set in United States v. Darby Lumber Co. when deciding Garcia v. San Antonio Metropolitan Transit Authority, a subsequent change on federalist rulings was still signaled by the arguments made in the dissenting opinion. Justices Rehnquist, O’Connor, and Powell, who would make up the early core of federalism sympathizers under the Rehnquist Court after Chief Justice Burger stepped down in 1985, argued that the Court’s decision to not grant stare decisis to NLC was incorrect. In so doing,
_____ 40. Id. 41. Kassel v. Consol. Freightways Corp., 450 U.S. 662, 687 (1981). 42. Id. 43. Armco Inc v. Hardesty, 467 U.S. 638, 641 (1984). 44. 460 U.S. 204, 205-06 (1983). 58 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
Justice Powell held that the Court was heading down a crude path of distinction between traditional and non-traditional governmental functions,45 therefore allowing Congress to constitutionally intrude into areas previously left to the states. Justice O’Connor continued the argument set forth by Justice Powell, stating that due to the scope and size of the national economy, Congress’ commerce power had changed from barring interstate tariffs to an unlimited power to regulate every area of economic life, and needed to be limited in order to protect the interests of the states in employment relations.46 Therefore, the power lies with the Court, and the Court alone may determine if an exercise of the Commerce Clause is warranted. For this reason, the unchecked grant of power that stems from the ruling in Garcia is unconstitutional. Finally, Justice
Rehnquist added that the Tenth Amendment’s main purpose is to limit the power of the federal government and that the Court’s majority was incorrect in arguing that state sovereignty is, by nature, protected by the 47
creation of a federal governmental system. Despite the fact that the Court shifted its stance on commerce from NLC to Garcia, the few decisions, and, in most cases, dissents, handed down during this time-period squarely established the federalism doctrine that would become synonymous with the Rehnquist Court after Burger retired as Chief. Due to his established voting record on the previous cases in his fourteen and one-half years as an Associate Justice, and his consistent adherence to federalism and protection of state’s rights from intrusion by the federal government,48 Rehnquist’s nomination to Chief Justice by President Reagan would be met with little surprise.
VI. CHIEF JUSTICE REHNQUIST AND HIS FEDERALISM DOCTRINE
President Reagan took advantage of the unique opportunity he was afforded when Warren Burger retired from office by nominating a chief justice who would establish precedent that would leave a lasting impact on
______45. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 542 (1985). 46. Id. at 559-60. 47. Id. at 579-80. 48. ABRAHAM, supra note 12, at 276. 2016] FEDERALISM LOST 59
the country as a whole many years past the expiration of his term in office. When Reagan, a well known public champion of preserving federalism,49 nominated the established pro-federalism Supreme Court Associate Justice William Rehnquist for the position of Chief Justice, the President was seeking to secure his that his own policy agenda of limiting the size and scope of the centralized federal government would continue for many years past his term in office.50 With Justice Rehnquist as Chief Justice, a change in Court vision loomed, as the last-minute Nixon nomination,51 a man with an established Supreme Court record of supporting state sovereignty, took the reins. Combined with the nomination of Rehnquist to Chief Justice, Reagan also made the strategic nominations of Sandra
O’Connor, Antonin Scalia, and Anthony Kennedy to Associate Justice to assist Rehnquist in furthering the federalist agenda.52 Due to these nominations, the first signs of federalism's reclamation from dormancy came in the 1990s as the Court aggressively used judicial review to 53 restore power to the states. In New York v. United States, the Court ruled that the Tenth Amendment’s federalism principles prohibited Congress from requiring the states to abide by federal regulatory policy.54 By requiring states to take legal control of low levels of radioactive waste, through the Low-
Level Radioactive Waste Management Act Amendments of 1985, Congress violated the Tenth Amendment. Justice O’Connor, on behalf of the majority, stated that by enforcing the, “take-title” qualification of said _____ 49. Exec. Order No. 12,612, 3 C.F.R. 252 (1987) Throughout his two terms in office, President Reagan warned the country of the ills of ‘big government’, and frequently spoke on the issue of the expanding power of the national government coming from the states. In one of his more famous attempts to secure the levels of federalism, Reagan signed Presidential Executive Order 12612, which detailed the restoring the of the division of governmental power to levels established by the framers in the U.S. Constitution. See id. 50. Joseph F. Zimmerman, Federal Preemption under Reagan’s New Federalism, PUBLIUS: J. FEDERALISM 7, 27 (1991). Even though President Reagan outwardly supported a limited federal government, he signed a number of Congressional preemption enactments that centralized the federal power over the states, specifically in terms of limiting state economic regulatory control on industry. See id. 51. DEAN, supra note 11, at 251. 52. DAVIS, supra 30, at 138. 53. Hulsebosch, supra note 14, at 653. 54. 505 U.S. 144, 162 (1992). 60 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
act, the federal government was ‘commandeer[ing]’ the states into the regulatory service of the federal government, which is violation of the separation of powers doctrine of the U.S. Constitution.55 Printz v. United States expanded the ruling in New York, as the Court held that Congress again overstepped its Tenth Amendment boundaries by enforcing certain 56 provisions of the Brady Handgun Violence Prevention Act. Justice Scalia, on behalf of the Court, held that, “the federal government could neither issue directives requiring the States to address particular problems, nor command the States’ officers… [t]o administer or enforce a federal regulatory program,” as it violated, “the constitutional system of dual sovereignty.”57 Besides New York and Printz, the Rehnquist Court ruled in a similar manner in the cases of City of Boerne v. Flores and Kimel v. Florida Board of Regents. In both cases, the Court found that Congress had violated the Equal Protection Clause of the Fourteenth Amendment by interpreting the meaning of their own statutes (the 1993 Religious Freedom Restoration Act and the Age Discrimination in Employment Act of 1967), a power specifically delegated to the Courts and therefore in violation of each state’s rights.58 Hence, these rulings demonstrate the Rehnquist Court’s movement to reestablish, what they believed to be, the appropriate levels of governmental sovereignty.
The most important and influential decisions of the Rehnquist Court’s federalism doctrine came from the Chief Justice himself regarding the topic of commerce. In United States v. Lopez,59 the Court, for the first time since Garcia, ruled a congressional enactment using the Commerce Clause unconstitutional.60 In the Opinion of the Court, Chief Justice Rehnquist states that The Gun Free School Zone Act of 1990 is unconstitutional because the possession of a gun in a school zone does not constitute an economic activity, and therefore does not/cannot substantially affect
interstate commerce. Hence, the enactment of the Gun- _____ 55. New York, 505 U.S. at 162; GARRY, supra note 4, at 851. 56. Id. 57. Printz v. United States, 512 U.S. 898, 935 (1997). 58. City of Boerne v. Flores, 521 U.S. 507, (1997), Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000). 59. 514 U.S. 549 (1995). 60. WILLS, supra note 2, at 870. 2016] FEDERALISM LOST 61
Free School Zone Act exceeds the regulatory power Congress has over commerce. Due to this, Lopez should have been tried under Texas State 61 law, not federal statute. In United States v. Morrison, the Court more clearly defined when
Congress could use the Commerce Clause to create law. Chief Justice Rehnquist argued that commerce could only apply to, “economic endeavors,”62 and the Violence Against Women Act of 1994, which provided federal monetary remedy for “gender motivated violence,”63 was regulating a deed that had no interstate commerce ties. As a result, the act was unconstitutional, and monetary remedy for such crimes 64 needed to come from the state where the attack occurred. When Morrison is viewed in combination with Lopez, it can be seen that the Rehnquist Court limited the scope of the Commerce Clause to its historical power, ruling, “family law, criminal law enforcement, and 65
education are beyond Congress’ power under the Commerce Clause.” Besides taking the lead in the case that limited the Commerce Clause, Chief Justice Rehnquist also wrote important decisions on the Equal Protection Clause of the Eleventh Amendment. In Seminole Tribe of Florida v. Florida, Chief Justice Rehnquist ruled that states are sovereign entities as provided by the Eleventh Amendment, and are immune to 66 being sued without their consent.
Combining this with the ruling in Board of Trustees of the University of Alabama v. Garrett, where Chief Justice Rehnquist wrote that Congress went beyond their regulatory powers by instituting the Americans with Disabilities Act, as they could not find a pattern of work place discrimination against the disabled, therefore making the necessity of the Act null in void, it is seen that, a suit against a state, even in acts where Congress allows for the abrogation of states sovereign immunity, is 67 unconstitutional. Overall, it can be seen that the Rehnquist Court, and
______61. Lopez, 514 U.S. at 549. 62. 529 U.S. 598, 611 (2000). 63. Id. at 602. 64. Id. at 627. 65. WILLS, supra note 2, at 871. 66. 517 U.S. 44, 76 (1996). 67. 531 U.S. 356, 374 (2001). 62 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
the Chief Justice himself, took an, “aggressive stance in safeguarding states from perceived overreaching by the federal government,”68 and used three different approaches to restore the levels of federalism.69 By extending state immunity under the Eleventh Amendment, limiting powers of Congress under the Commerce Clause, and breathing life into the Tenth Amendment, the Rehnquist Court became synonymous with a pro-state sovereignty stance. As seen throughout the previous decisions and dissents, Chief Justice Rehnquist compiled a Supreme Court record that supported a limited role of the central government in federalism cases. As a result, the Chief Justice was said to have a federalism doctrine, but the question remains as to whether this federalism doctrine was unique to this particular conservative chief justice or whether conservative majorities lead to higher rates of state sovereignty supporting Supreme Court decisions.
VII. CONFIRMING A NEW CHIEF JUSTICE
Upon Chief Justice Rehnquist’s death in 2005, President George W. Bush had the rare opportunity to appoint a new Chief Justice to the Supreme Court. However, during the tumultuous political environment of the mid-2000s, the confirmation process in the Senate proved to be rather challenging. John G. Roberts, Jr. was nominated for a position on the D.C. Circuit in 2003, after the Republicans had taken control of Congress once more. Roberts had previously been nominated for a judicial position twice before, once in 2001 by George W. Bush, and also in 1992 by George H. W. Bush, but was never confirmed by the Senate. In the summer of 2005, George W. Bush nominated Roberts to the U.S. Supreme Court to fill the vacancy that would soon be created by the retirement of Justice Sandra
Day O’Connor. Roberts’ path to the Supreme Court would take yet another odd turn though, as Chief Justice Rehnquist died in early September of that year. This sudden opening for the country’s highest _____ 68. A. Brooke Overby, Our New Commercial Law Federalism, 76 Temp. L. Rev. 297, 305 (2003). 69. WILLS, supra note 2, at 868. 2016] FEDERALISM LOST 63
judicial post prompted Bush to withdraw Robert’s nomination for the Associate Justice position, and re-nominate Roberts for the office of
Chief Justice. Although perceived as a conservative-minded jurist, Roberts described himself as not having any comprehensive judicial philosophy or all-encompassing approach to interpreting the Constitution during his own confirmation hearings. Roberts likened himself to a baseball umpire, in that he merely rendered decisions on plays, rather than play the game itself. Roberts exhibited an extremely proficient knowledge of constitutional precedent during his confirmation hearings.
During the confirmation process, Roberts asserted his belief in the
principles of federalism, stating, “I think it was part of the genius of the Founding Fathers to establish a Federal system with a national government to address issues of national concern; State and local government more close to the people to address issues of State and local concern; obviously, issues of overlap as well.”70 This view was reinforced regarding his discussion of the Commerce Clause, in which Roberts cited the decision in Lopez as one of the most important cases of recent times. He went on to say, “many of us had learned in law school that it was just sort of a formality to say that interstate commerce was affected and that cases weren’t going to be thrown out that way.”71 Although this opinion supported Roberts’ federalist
principles, recognizing that the Commerce Clause had become an extremely powerful tool for Congress to rely on as it worked to expand the powers of the Federal Government, the soon-to- be Chief signaled that his support of state-sovereignty would not be as strong as his predecessor.
VIII. JUSTICE ROBERTS ON THE D.C. CIRCUIT
The United States Court of Appeals for the District of Columbia Circuit has the responsibility of directly reviewing the decisions and
_____ 70. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 190 (2005) (statement of John Roberts, Supreme Court Nominee). 71. Id. at 164. 64 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
rulemaking of many federal independent agencies that are based in the nation’s capital. The nature of these decisions provides a glimpse of Justice Roberts’ interpretation of the relationship of the federal government with the state governments’ in their division of power. Although Roberts spent just over two years on the court, he authored several decisions during his tenure that present some insight into his judicial philosophy in this area.
A month after Roberts took the bench, he issued a strong dissent focused on the scope of the Commerce Clause in Rancho Viejo v. Norton. In this case, the developers of a proposed housing development were seeking a rehearing en banc, following the Department of the Interior’s blockage of the construction due to claims that the development would disrupt the habitat of an endangered toad.72 In his dissent, Roberts stated that the court’s analysis focused on whether the challenged regulation substantially affected interstate commerce, rather than whether the 73 activity itself did so.
Roberts argued that the approach was inconsistent with the Supreme Court’s holdings in United States v. Lopez and United States v. Morrison, where the Court upheld facial Commerce Clause challenges; as such a challenge can only succeed if there are no circumstances in which the 74 Act at issue can be applied without violating the Commerce Clause. The approach used by the D.C. Circuit in this case, said Roberts, “leads to the result that the regulating of a toad that spends its entire life in California constitutes regulating Commerce among the States.”75 Accordingly, he would have granted en banc review due to the conflict between this ruling and those of the other Circuit Courts. In this decision, Roberts demonstrates his support of the limitations that the Rehnquist Court had begun placing on the Commerce Clause during the past two decades.
Just a few months later, Roberts had the opportunity to write for the majority of the court in Ramaprakash v. FAA, another case involving _____ 72. Rancho Viejo, LLC v. Norton, 323 F.3d 1158 (D.C. Cir. 2003). 73. Id. at 1158-59. 74. See 514 U.S. 549 (1995); 529 U.S. 598 (2000). 75. Rancho Viejo, LLC, 323 F.3d at 72.'76. Ramaprakash v. FAA, 346 F. 3d 1121, 1122 (D.C. Cir. 2003). 2016] FEDERALISM LOST 65
issues of federalism. That case involved a petitioner who was convicted of DUI in Georgia, and due to his status as a licensed pilot, was required to provide a written report of any motor vehicle action within sixty days to the Federal Aviation Administration (FAA).76 Ramaprakash failed to make the necessary report, but on his appeal to the National Transportation Safety Board (NTSB), argued that the FAA failed to meet
its own deadline rule in taking action to suspend his pilot’s certificate. The court ruled that the NTSB departed from its own precedent in its ruling on this matter, by changing the triggering requirement to be discovery of the violation itself, rather than the receipt of information concerning possible violations. Roberts ruled that the NTSB’s decision must be vacated as arbitrary and capricious due to their departure from established precedent without reason. In doing so, Roberts demonstrated his willingness making rulings that keep governmental agencies in check. Irrespective of the state law violation, the federal government was required to maintain uniform consistency in its enforcement of aviation regulations. Despite being granted the distinct authority to regulate pilot certificates, the court forced the FAA to maintain consistency in its approach to these standards.
Just prior to ascending to the Supreme Court, Roberts provided another example of his judicial philosophy regarding the status of federal governmental agencies and their relationships with state governments’, which can be found in Brady v. FERC. This was a case involving a dispute over the Federal Energy Regulatory Commission’s (FERC) approval of an amendment to expand a commercial marina.77 The marina in question was located on a lake that is regulated by the Grand River Dam Authority (GRDA), an Oklahoma State agency, pursuant to a license issued by the FERC.
Due to the fact that the GRDA failed to complete its comprehensive shoreline management plan, the court held that FERC was forced to consider license requirements on a case-by-case basis, and so long as the resulting decisions are not arbitrary, capricious, or lacking in substantial
______76. Ramaprakash v. FAA, 346 F. 3d 1121, 1122 (D.C. Cir. 2003). 77. 406 F.3d 1, 3-4 (D.C. Cir. 2005). 66 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
evidence, they would not alter the Commission’s judgment.78 Thus, the petition to review the marina expansion approval was denied. In comparison to the decision in Ramaprakash, this decision demonstrates Roberts’ equal willingness to force a State agency to comply with the terms of its regulatory authority as well. Even though the lake in question was within the boundaries of Oklahoma, the GRDA’s failure to abide by licensing requirements set forth by the FERC resulted in a loss of its power. Compared to Rancho Viejo, the holding in Brady reveals that Roberts’ interpretation of the federalism doctrine is not just a mere exertion of States’ rights, but rather the management of the spheres of authority between the State and Federal governments.
IX. THE ROBERTS COURT BRINGS CHANGE: A REASSERTION OF FEDERAL AUTHORITY
The Roberts Court ushered in a new era of the Supreme Court in a way that had not been felt in more than three decades. After nearly twenty years on the bench as Chief Justice, William H. Rehnquist had passed on, leaving the Supreme Court without a leader or without any clear-cut successor to his post. Although he became Chief Justice during the Reagan administration, Rehnquist’s presence had influenced the Court since his appointment as an Associate Justice under Richard M. Nixon in January of 1972. To say that the Court was moving into unfamiliar territory would be a gross understatement.
Although not a member of the Supreme Court before his appointment
to Chief Justice, to the casual observer it would seem that George W. Bush’s nomination of D.C. Circuit Court of Appeals Judge John Roberts should be more of the same types of policies that had been in place under his predecessor. Roberts, like Rehnquist, had been appointed by a conservative-minded president, and was inheriting most of the same Associate Justices that had been in place for over a decade. However, the tenure of the Roberts Court has shown that not all
conservative courts operate the same way, particularly when considering _____ 78. Id. at 5. 2016] FEDERALISM LOST 67
cases involving questions of federalism. An analysis of the decisions made during the first ten years of the Roberts Court reveals that the Court is largely backing away from this era of, “new federalism,” and is instead reverting back to decisions that push the balance of power in favor of the federal government once again. Reviewing the body of federalism-oriented cases that have been decided during the Roberts Court era reveals that the instances in which Roberts himself authors the decision for the Court are infrequent to begin with. In those decisions in which Roberts does write the decision, the Court usually is on the side of expanding the authority of the Federal government to the detriment of the states.
The first federalism case of the Roberts Court era in which the Chief Justice himself wrote the majority decision can be found in the case of Medellín v. Texas.79 This case brought before the Court the question of whether or not a Texas State law limiting the filing of habeas corpus petitions was limited by U.S. treaty obligations under the Vienna Convention after when the President issued a memorandum to the attorney general effectively forcing Texas to comply with a decision by the International Court of Justice. Writing for the majority, Chief Justice Roberts determined that while a self-executing treaty automatically binds law in the United States, a non-self-executing treaty does not automatically bind law, unless Congress passes legislation to do so. Rather, according to the Court, the United States has merely expressed its commitment to abide by further International Court of Justice decisions, but has not bound itself to these individual provisions. Thus, in this case, while the rights of the State of Texas to limit the filing of habeas corpus petitions were upheld, the Court did open the doorway for future treaties to be automatically binding on the states, if in fact a treaty was self- executing, or if legislation was passed by Congress to call for a non-self- executing treaty to bind the states.
Perhaps there is no case which further drives home the shift in judicial philosophy that the Court has gone through in the last eight years than
National Federation of Independent Business v. Sebelius, also known
_____ 79. 552 U.S. 491 (2008). 68 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
80 as the “Obamacare” case.” Writing for the majority, Chief Justice Roberts fell short of ruling that the Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance was justified under the Commerce Clause or the Necessary and Proper Clause of the Constitution. A majority of the Court agreed with Roberts in this finding, stating that Congress did not have the authority to regulate economic inactivity, but only an action taken in the affirmative that would have an effect on the economy.
Nevertheless, the law was upheld as constitutional, as Justice Roberts joined with a majority of the liberal justices on the position that the individual mandate to obtain health insurance could reasonably be characterized as a tax. The Court held that such tax was indeed permitted under the Constitution, and found that, “it is not our role to forbid it, or to 81 pass upon its wisdom or fairness.”
By walking the fine line between the position of the conservative- minded justices and the liberal-oriented justices of the Court, Roberts nonetheless expanded the power of the federal government by providing a mechanism for it to create an individual mandate. Although not as strong of a position as if the law had been upheld as constitutional under the 82 Commerce Clause, by finding a means of upholding the law as within
Congress’ taxing authority, the balance of power under federalism was shifted in favor of the federal government unlike any other case in recent history. Such a decision obviously creates a precedent for further individual mandates on the country’s populace, as Congress now has the power to levy a penalty against individuals that make a choice to not purchase something and have such a law upheld as a constitutionally valid tax. It is hard to imagine that a holding of this kind that falls squarely in-between the opinions of the other eight justices on the bench
would have ever taken place during the tenure of the previous Court. Another recent example of the Roberts Court’s expansion of the _____ 80. 132 S. Ct. 2566 (2012). 81. Id. at 2600. 82. See, e.g., Wickard v. Filburn, 317 U.S. 111, 133 (1942); Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241, 261-62 (1964); Katzenbach v. McClung, 379 U.S. 294, 305 (1964). 2016] FEDERALISM LOST 69
federalism doctrine in favor of the federal government can be found in Wos v. E.M.A. This case called into question a North Carolina law that required Medicaid beneficiaries who received money from a tort judgment or settlement to reimburse the State with one-third of that money in return for the free medical care that had been provided to them.83 In a 6-3 decision, the Court found that the “anti-lien provision” of the federal Medicaid law preempted the North Carolina State law, and that as a result the individuals 84 did not have to provide the State with any reimbursement.
Chief Justice Roberts authored a dissent in this case, in which he argued that nothing in the Medicaid Act worked to shift the power away from the states and to the federal government. Citing the Court’s earlier decision in Wyeth v. Levine, Roberts set forth the basic premise that, “the historic police powers of the States were not superseded by the Federal Act unless that was the clear manifest purpose of Congress.”85 Roberts believed that Congress did not specify enough that it was their intent to override the State’s powers, as they merely mentioned State laws existed that provided for the, “State to be considered to have acquired the rights of such individual to payment by any other party for such health care items or services.”86 Nowhere in the law, said Roberts, did Congress specify what recovery a state must allow, despite being aware that states traditionally have the power to regulate recoveries under private law.
It is in this dissent that Roberts helps re-establish himself from what seemed to be a departure from Federalist principles in the “Obamacare” case, and asserts his belief that Congress must use specificity in the drafting of laws if it intends to override the powers of the states. However, it should be noted that this strict interpretation remains distinct from that of Rehnquist, who would have been more likely to argue that if the power is not enumerated in the Constitution, Congress lacks any ability whatsoever to adjust the power in favor of the Federal government.
_____ 83. Wos v E.M.A., 133 S. Ct. 1391, 1394-95 (2013). 84. Id. at 1395. 85. Wyeth v. Levine, 555 U.S. 555, 565 (2009). 86. Wos, 133 S. Ct. at 1396. 70 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
X. A LACK OF INFLUENCE
There are several other examples of cases during the Roberts Court’s tenure that indicate that there has been a great reassertion of federal authority, even when the Chief Justice argues on the side of states’ rights.
These cases suggest that although John Roberts himself still may take a “new federalism” approach to such cases, his influence is not strong enough to sway the opinions of a majority of the justices on the Court. As a result, the federalism principles that were in place under the Rehnquist Court are beginning to erode. One such example, in which the Roberts Court again addressed a federalism issue, was Central Virginia Community College v. Katz.87 This case concerned the bankruptcy trustee for a defunct bookstore that did business with Central Virginia Community made to the State to satisfy debts. In response to this claim, Virginia raised the defense of sovereign immunity. In a decision written by Justice John Paul Stevens, the Court found that the Bankruptcy Clause of the Constitution, giving
Congress the power to make, “uniform laws on the subject of bankruptcies,” included the power to abrogate the sovereign immunity of the states.88 This decision was largely grounded in historical comparisons of how bankruptcy laws of the States functioned under the Articles of Confederation, and failed to give any credit to the dicta of the earlier Seminole Tribe of Florida v. Florida,89 which also addressed the sovereign immunity issue. Essentially, this case allowed for a greater expansion of federal power by expanding the breadth of the Bankruptcy Clause in favor of Congress and against the state. Several years later, the Court gave more authority to the federal government by expanding the scope of the Family and Medical Leave Act (FMLA). In Coleman v. Court of Appeals, the petitioner, a former Maryland Court of Appeals employee, filed a lawsuit under the self-care provision of FMLA, alleging that he was fired after 90 requesting sick leave for a documented medical condition. In Justice
Anthony Kennedy’s decision, the Court held that the self-care provision _____ 87. 546 U.S. 356 (2006). 88. Cent. Va. Cmty. Coll., 546 U.S. at 359. 89. 517 U.S. 44 (1996). 90. 132 S. Ct. 1327 (2012). 2016] FEDERALISM LOST 71
did not validly abrogate Maryland’s immunity from suits for damages. In passing the medical leave portion of the Act, Congress considered evidence that there are roughly equal numbers of men and women on medical leave, and thus the self-care leave provision was not a congruent and proportional response to discriminatory conduct under §5 of the Fourteenth Amendment. As a result, that portion of the Act was not found to abrogate Maryland’s sovereign immunity under the Eleventh Amendment. The Court’s interpretation in this 5-4 decision provided the federal government with another means of passing legislation that supersedes the individual authority of the states.
Most recently, the authority of the federal government over that of the states was demonstrated in Mutual Pharmaceutical Co. v. Bartlett. This case involved a dispute between a New Hampshire State law and the Drug Price Competition and Patent Term Restoration Act of 1984.91 The New Hampshire product liability law imposes a duty on drug manufacturers that the drugs they produce are not unreasonably unsafe, the basis of which is established by the drugs chemical properties and its warning label. The 1984 Federal Act provides that once a generic drug is approved for use, the manufacturer is prohibited from making any changes in the drug or from making any changes to the pre-approved label of the drug’s brand-name counterpart. The respondent in this case had brought her original claim as a result of toxic epidermal necrolysis she suffered as a result of the warning label failing to disclose this specific skin reaction. On review, the Supreme Court ruled that it would be impossible for the generic drug manufacturer to meet its obligations under both the State and federal laws, and therefore the Supremacy Clause dictates that the State law must be struck down. As a result, irrespective of the State’s efforts to protect its residents by ensuring drugs sold there have adequate warning labels, the Federal law prevailed, thus eroding the State’s authority to pass product liability laws if there is any conflict with a Federal Act.
Another example of the Court’s recent expansion of federal authority can be found in their interpretation of the Federal Arbitration Act. In Preston v. Ferrer, the Court was faced with deciding if the issue of the
______91. Mut. Pharm. Co. v. Bartlett, 133 S. Ct. 2466 (2013). 72 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
validity of a contract agreement between a California attorney who was owed fees from a client under a personal management contract should be decided through arbitration. The contract itself called for arbitration to take place, while Judge Alex Ferrer argued that all administrative remedies had to be exhausted before the matter could go to arbitration, as per California State law. In an 8-1 decision, the Court ruled in favor of arbitration, citing the 92 Federal Arbitration Act as a “national policy” in favor of arbitration.
The remaining four justices joined in a dissent stating that the Federal Arbitration Act should not apply, because the issue as to the contract’s validity had to be decided in state courts, rather than through arbitration called for in the very contract that was in dispute. This case is an obvious assertion of the federal government’s enforcement of its own law through the Federal Arbitration Act. The real effect, however, is an undermining of the authority of the state courts to rule on the validity of a simple contract, in favor of the Federal arbitration policy.
Among the most high-profile cases that the Roberts Court addressed on the issue of federalism in recent times was Arizona v. United States. The Court was presented with the question of whether the Federal immigration laws preclude Arizona’s efforts at cooperative law enforcement under the provisions of the, “Support Our Law Enforcement and Safe Neighborhoods Act.”93 Specifically at issue were provisions of the Act which created state-law crimes for being unlawfully present in the United States, for working or seeking work while not authorized to do so, which required state and local officers to verify the relationship or alien status of anyone who were lawfully arrested or detained, and which authorized warrantless arrests of aliens believed to be removable from the United States. The Court rendered a mixed opinion in this case, holding that the provisions creating state-law crimes conflicted with federal alien registration requirements and enforcement already in place and federal laws regarding the unauthorized employment of aliens. The provision regarding warrantless arrests of aliens was similarly preempted because it was found to usurp the federal government’s discretion in the removal
_____ 92. Preston v. Ferrer, 552 U.S. 346 (2008). 93. Arizona v. United States, 132 S. Ct. 2492(2012). 2016] FEDERALISM LOST 73
process.94 The provision regarding the verification of a detainee’s alien status was upheld, as it merely allows state law enforcement officials to communicate with the Federal Immigrations and Customs Enforcement office during arrests that are otherwise lawful.95 The ruling in this case strongly reaffirmed the Federal government’s sole authority to act in the area of immigration by essentially rendering Arizona’s efforts to take authority into its own hands null and void. On a larger scale, due to the high volume of illegal immigration issues that Arizona was facing, the
Court’s ruling forced the state to rely solely on the federal government’s
judgment when seeking to project itself in this area. In one recent federalism case, the Court actually reaffirmed the 96 power of the state governments in Cuomo v. Clearing House Association. Roberts, however, was not part of the majority that did so. In this case, the New York State Attorney General was investigating possible racial discrimination in the real estate lending practices of several national banks, and was requesting that the implicated banks turn over certain non-public information as part of his investigation. The Attorney General argued that the Federal Housing Act provided an exception to authorize his investigation into matters otherwise regulated by the Office of the Comptroller of the Currency, a federal agency, under the National Bank
Act (NBA). The Court distinguished between a state’s supervisory powers and its enforcement powers, and held that the NBA only prevented a state from exercising its supervisory powers over banks, and therefore could exercise its ordinary powers to enforce state laws.97 This case, a 5-4 decision, provides one of few examples where the Roberts Court actually expanded the authority of the State governments over an area normally reserved for the Federal government.98 Despite the authority of the Office of the Comptroller of the Currency, the Court still allowed New York to conduct an investigation to enforce its own banking
laws without first getting federal approval to do so. _____ 94. Id. 95. Id. 96. 557 U.S. 519 (2009). 97. Id. at 520-21. 98. Id. 74 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
These cases indicate an important trend in the Roberts Court. In all but one of them, the role of the federal government was expanded at the expense of the states, regardless of the fact that five conservatives still sit on the bench. The presence of Chief Justice Roberts signifies a shift in federalism vision, and, in fact in Arizona v. United States,99 Roberts himself even joined with the liberal wing of the Court on the vote in favor of the federal government.100 The one case where the Court favored the rights of the states, Cuomo, found Roberts actually voting with the dissenting justices.101 This pattern of decisions indicates that the Court is moving away
from the Rehnquist Court’s “new federalism,” and that Chief Justice Roberts lacks an adherence to preserve state sovereignty that was synonymous to his predecessor term. Overall, it can be seen that regardless of the fact that both chief justices are conservative in ideology, conservatism during the Rehnquist Court manifested itself as a state- sovereignty protecting ideology, or one that re-establishes the lines of
federalism. XI. AN EVOLUTION IN JUDICIAL CONSENSUS?
In a fair number of cases during Roberts’ tenure, the Court has actually unanimously favored the federal government over that of the states on federalism issues. Unanimous cases in favor of the federal government would be almost unheard of during the Rehnquist Court era, but now appear relatively common. For example, in United States v. Georgia, the Supreme Court expanded the scope of the application of the Americans with Disabilities Act of 1990 (ADA).102 There, a paraplegic prisoner using a wheelchair sued the State of Georgia on allegations that the state prisons violated the ADA, as he was kept in his narrow cell for twenty-three hours per day and denied access to programs and classes from which other prisoners benefitted.103 In response, Georgia argued that the U.S. Congress
had exceeded its constitutional authority in authorizing suits _____ 99. Arizona, 132 S. Ct. at 2497. 100. Id. 101. Cuomo, 557 U.S. at 536. 102. 546 U.S. 151 (2006). 103. Id. at 156. 2016] FEDERALISM LOST 75
for damages against the individual states under the ADA. The Court, in a decision by Justice Antonin Scalia, unanimously ruled that the Constitution allowed the ADA to be applied to the administration of state prisons to the extent that it relates to conduct that violates the Fourteenth Amendment, and therefore expanded Federal authority in the area of 104 disability rights.
During the same term of the Court as the United States v. Georgia ruling, the Court also upheld a statute that further expanded the power of the federal government. In Arkansas Department of Health and Human Services v. Ahlborn, the Court had to interpret the ability of States to claim personal injury settlements to reimburse themselves for Medicaid benefits expended for the treatment of injuries.105 The Court ruled, in a unanimous decision, that Federal Medicaid law and the Federal anti-lien provision provided no authorization for State agencies, like the Arkansas Department of Human Services, to assert liens against personal injury settlements beyond the amount specifically stipulated.106 Thus, the Court struck down the power of the states to offset their losses expended under the Medicaid system, thereby further limiting their sovereign ability to help manage their own fiscal responsibilities.
The trend of the Roberts Court toward federalism rulings unanimously favoring the federal government is also well-demonstrated in a pair of rulings involving the Federal Aviation Administration Authorization Act of 1994 (FAAAA). The first of these, Rowe v. New Hampshire Motor Transport Association, was about a Maine law which imposed certain requirements on air and motor carriers of tobacco products, including that retailers could only use carriers that verified the age of each tobacco purchaser, and that carriers had to ensure that no tobacco was shipped to unlicensed retailers.107 The petitioner contended that the Maine law was preempted by the FAAAA, which prohibits states from enacting laws related to the prices, routes, or services of air and motor carriers, and that it placed a burden on the delivery procedures of the
_____ 104. Id. at 159. 105. 547 U.S. 268, 282 (2006). 106. Id. at 292. 107. 552 U.S. 364, 372 (2008). 76 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
carriers that significantly affected their prices and services. The Court unanimously ruled that the FAAAA preempted the Maine laws, asserting that the laws had a significant and adverse impact on the congressional goal of precluding State regulation in lieu of competitive market forces.108 Five years later, the Court again addressed the FAAAA in American Trucking Associations v. City of Los Angeles. There, Los Angeles had adopted a Clean Air Action Plan (CAAP) to reduce emissions and specifically target drayage trucks from the Port of Los Angeles by forcing them to enter into a series of concession agreements imposing a progressive ban on older, less environmentally-friendly trucks.109 The petitioner challenged several provisions of CAAP, arguing that the FAAAA prohibits a state from enacting any regulation related to the price, route, or service of any motor carrier. The Court unanimously ruled that Los Angeles wielded a coercive power over private companies by threatening criminal punishment for non-compliance with concession agreements.110 Such actions, said the Court, fit within the FAAAA’s prohibition on government regulating the price, route or service of any motor carrier, and thus placed the city government into a regulator role 111 reserved for the federal government.
In both American Trucking Associations and Rowe, the Court unanimously reinforced the power of the federal government over the area of interstate travel and aviation regulations by striking down state laws that sought to usurp the FAAAA. Despite the intent of the laws here being put in place to help regulate tobacco products and to strengthen environmental standards, the state laws’ attempts to override provisions of the Federal Act resulted in them being declared invalid.
One of the most surprising cases regarding this relationship between the state and federal government is found in National Meat Association v. Harris. In this case, the Court established that federal and state laws do not necessarily need to be contradictory of one another for
_____ 108. Id. at 367. 109. Am. Trucking Ass'ns v. City of L.A., 133 S. Ct. 2096, 2100 (2013). 110. Id. at 2103. 111. Id. 2016] FEDERALISM LOST 77
the state law to be struck down.112 The relevant facts show that the State of California had passed a statute in order to strengthen regulations governing the treatment of nonambulatory animals and apply that statute to slaughterhouses within the state. Such regulations, and the slaughterhouses in question, however, were already regulated under the Federal Meat Inspection Act (FMIA), which had been in effect since 1906, following the famous Upton Sinclair novel The Jungle. California argued its statute should be upheld, as the State law does not require anything that FMIA forbid, or vice-versa. The Court held in its unanimous decision, written by
Justice Elena Kagan, that FMIA’s preemption clause covers not only conflicting, but also different or additional State requirements.113 Thus, because the State statute attempted to regulate the same matter, at the same time, in the same place, while imposing different requirements, the Federal Act must prevail. The resulting outcome of the case is that a state is precluded from passing any regulations that attempt to regulate the same issue that are already covered in a Federal Act, even if there are not any conflicts found between the two. When federal legislation places an issue within the purview of the federal government to regulate it, the states are thus precluded from attempting to regulate the same issue in any manner.
These cases appear to show a significant shift in the overall ideology of the Court as a whole. Although the Court is still predominantly conservative in makeup, cases such as these show that the Court is willing to unanimously rule against allowing the state governments even niche rights to impose individual regulations if there is any claim of federal authority over the given subject matter. While most of the cases would seem to be simple Supremacy Clause issues, where the federal government wins out due to a conflict, National Meat Association114 provides an example where the Court deprived a state of any regulatory authority where no actual conflict existed between the two laws. Such trends show a stark change in the consensus thinking of the Court during the last decade since Rehnquist was last on the bench.
_____ 112. Nat'l Meat Ass'n v. Harris, 132 S. Ct. 965, 970 (2012). 113. Id. 114. Id. 78 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
Another example of the Court’s recent expansion of Federal Authority can be found in their interpretation of the Federal Arbitration Act. In Preston v. Ferrer, the Court was faced with deciding if the issue of the validity of a contract agreement between a California attorney, who was owed fees from a client under a personal management contract, should be decided through arbitration.115 The contract itself called for arbitration to take place, while Judge Alex Ferrer argued that all administrative remedies had to be exhausted before the matter could go to arbitration, as per California State law. In an 8-1 decision, the Court ruled in favor of arbitration, citing the Federal Arbitration Act as a “national policy” in favor of arbitration. The remaining four justices joined in a dissent stating that the Federal Arbitration Act should not apply, because the issue as to the contract’s validity had to be decided in state courts, rather than through arbitration called for in the very contract that was in dispute. This case is an obvious assertion of the federal government’s enforcement of its own law through the Federal Arbitration Act. The real effect, however, is an undermining of the authority of the State Courts to rule on the validity of a simple contract, in favor of the federal arbitration policy.
These cases indicate an important trend in the Roberts Court. In each of them, the role of the federal government was expanded at the expense of the states, regardless of the fact that five conservatives still sit on the bench. The presence of Chief Justice Roberts signifies a shift in federalism vision and, in fact, in Arkansas Department of Health and Human Services,116 Roberts himself even joined in the vote in favor of the federal government. This pattern of decisions indicates that the Court is moving away from the Rehnquist Court’s “new federalism,” and that Chief
Justice Roberts lacks an adherence to preserving state sovereignty that was synonymous to his predecessor’s term.
The most recent example of this trend is seen with the decision in Obergefell v. Hodges.117 Although Chief Justice Roberts writes the dissent to Justice Anthony Kennedy’s opinion that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as a fundamental _____ 115. 552 U.S. 346 (2008). 116. Ark. HHS, 547 U.S. at 268. 117. 135 S. Ct. 2584 (2015). 2016] FEDERALISM LOST 79
liberty, his argument is that the Constitution is silent on the topic and, therefore, is a topic that should be decided by state legislatures. Although this sounds similar to an argument that could be made by Chief Justice Rehnquist, the substantial difference is that Chief Justice Roberts is arguing that the states are to be the decision maker by virtue of a silent document, and not that marriage is a state issue. Much like the ruling in
National Federation of Independent Business v. Sebelius, if the Constitution provides for a power, in that instance taxation, he would uphold such power over the states, which is a clear deviation from
Rehnquist. Even though Roberts’ dissent has a state sovereignty flavor, it is far from the federalist doctrine supported by Chief Justice Rehnquist and his Court. Overall, it can be seen, based on the two Chief Justice’s voting records, and regardless of the fact that both chief justices are conservative in ideology, conservatism during the Rehnquist Court manifested itself as a state-sovereignty protecting ideology, or one that re-establishes the lines of federalism and is a unique characteristic of that Court.
XII. CONCLUSION: CHIEF JUSTICE REHNQUIST’S INFLUENCE OVER THE CONSERVATIVE JUSTICES OF HIS COURT AND THAT COURT’S SUPPORT OF STATE SOVEREIGNTY
During William Rehnquist’s confirmation hearings to become Chief Justice, he openly stated that the Chief Justice can influence the other justices through powers such as opinion assignment. Specifically, Rehnquist stated that opinion assignment during his tenure would be taken more seriously then it was during the Burger Court, as it is an important 118 responsibility, and would be, “discharged carefully and fairly.”
Specifically, Chief Justice Rehnquist sought equal distribution of assignments across the bench and assigned cases based on a justices’ legal
_____ 118. WILLIAM H. REHNQUIST, THE SUPREME COURT: HOW IT WAS, HOW IT IS 297 (1987). 80 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:49
expertise, and how efficient they were with completing their work.119 Rehnquist made sure that no justice, including himself, was assigned a second opinion before everyone else had one and made no attempt to 120 interfere with assignments when he was in the minority. The Chief Justice himself stated, “I tried to be as evenhanded as possible as far as number of cases assigned to each justice.”121 Even though Rehnquist himself promoted an assignment method based on equality and keeping the operations of the Court running smoothly, empirical analysis suggests that the Chief Justice was not, “entirely devoid of strategic calculations” 122 and policy considerations. Specifically, Maltzman and Walbeck found that ideology of a justice
played a prominent role in opinion assignment for Rehnquist under two separate conditions; (1) when cases were considered important and (2) when the majority margin at the conference was minimal.123 When a case was of high salience, Chief Justice Rehnquist would disproportionately assign opinions to justices ideologically similar to him or save them for himself. Rehnquist stated, “The Chief Justice is expected to retain for himself some opinions that he regards as of great significance,”124 and used this philosophy to influence his conservative colleagues towards voting to preserve state sovereignty when deciding federalism cases. Seeing that Rehnquist wrote a majority of the Court opinions supporting a limited
_____ 119. Forrest Maltzman & Paul Wahlbeck, Opinion Assignment on the Rehnquist Court, JUDICATURE 89, 121-126 (2005); FORREST MALTZMAN ET AL., CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME (2000); FORREST MALTZMAN & PAUL J. WAHLBECK, May It Please the Chief? Opinion Assignment in the Rehnquist Court, 40 AMERICAN JOURNAL OF POLITICAL SCIENCE 421-443 (1996); Sue Davis, Power on the Court: Chief Justice Rehnquist Opinion Assignments, 74 JUDICATURE 66-72 (1990). 120. Jeffrey Toobin, Money Unlimited: How Chief Justice John Roberts Orchestrated the Citizens United Decision, THE NEW YORKER, May 21, 2012. 121. REHNQUIST, supra note 118, at 297. 122. Forrest Maltzman & Paul Wahlbeck, Opinion Assignment on the Rehnquist Court, JUDICATURE 89, 121(2005); FORREST Maltzman & Paul J. Wahlbeck, May It Please the Chief? Opinion Assignment in the Rehnquist Court, 40 AMERICAN JOURNAL OF POLITICAL SCIENCE 421-443 (1996). 123. Forrest Maltzman & Paul Wahlbeck, Opinion Assignment on the Rehnquist Court, JUDICATURE 89, 121-126(2005). 124. See REHNQUIST, supra note 118, at 297. 2016] FEDERALISM LOST 81
central governmental authority in federalism cases, it is reasonable to argue that Rehnquist believed federalism, and the devolution of federal power, were the most salient issues during his tenure. As this topic was of high importance, it is also reasonable to believe that Rehnquist would seek out justices ideologically similar to him, on said cases, to write opinions when his workload was full. By either writing opinions himself, or assigning opinions to justices with similar policy preferences on this topic, such as
Justices White, Powell, and O’Connor, the Chief Justice was attempting to influence the Court to rule in favor of state sovereignty. Having opinions crafted by him, or any of the previous justices, Rehnquist was transposing his federalism doctrine onto the conservative justices, who composed the majority of the Court’s membership. In comparison to the Roberts Court, the majority of the Rehnquist Court Justices’ vote choices were directly related to preserving what they considered to be the appropriate powers for the different levels of government. It seems that the Justices of that Court relied on the most fundamental conservative ideal of supporting a limited national government, and took voting cues from the Chief Justice himself and cast their votes accordingly to preserve their definition of federalism.
Due to the fact that Rehnquist’s influence is no longer present on the Court and the de-emphasis of importance on federalism cases by Roberts, it is safe to conclude that the topic of federalism does not hold the same weight with all conservative courts. In fact, the promotion of distinct lines of federal and state sovereignty was unique to the Rehnquist era. As a result, Chief Justice Rehnquist‘s influence on his conservative counterparts lead to the increased number of state-sovereignty promoting rulings that uniquely occurred during that era.
The New Italian Anti-corruption Authority: Duties and Perspectives
* RAFFAELE CANTONE
Presentation of the ANAC Annual Report to the Parliament, based on the President Raffaele Cantone’s speech of July 2, revised in November 2015.
The first annual report of the new Italian National Anti-Corruption Authority (ANAC), presented to the Italian Parliament on the 2nd of July 2015, was particularly significant for the Authority. I have the honour to preside over; it is an “official baptism”, considering that last year was the year in which in Italy an Authority charged with preventing corruption functions was effectively structured.
I. PREVENTING CORRUPTION AND TRANSPARENCY
The Anti-Corruption Law, Law No. 190/2012, in execution of the Article 6 of the United Nations Convention against Corruption, designed an anti- corruption system based on prevention and introduced in Italy the National Anti-Corruption Authority that is the central actor of the system.
The provisions introduced by the Anti-Corruption Law find an essential complement in the Legislative Decrees No. 33 and No. 39 of 2013, to which the Law has delegated the implementation of important
principles and guidelines with reference, respectively, to the transparency
_____ * Mr. Raffaele Cantone was born in Naples and started his career in the judiciary in 1991, acting as a public prosecutor. As member of the District Anti-mafia Directorate of Naples, Mr. Cantone was involved in major investigations on the organized crime in Italy: for the key role he played in the conviction of several important members of the 'camorra' he has to live under protection since 1999. In 2013 the President of the Council of Ministers appointed him as a component of the task force created to develop proposals on the subject of the fight against the organized crime; on March 2014 the President of the Council of Ministers appointed Mr. Cantone President of the Italian National Anti-Corruption Authority, designation confirmed unanimously by the competent parliamentary commissions. Mr. Cantone is the author of several articles and volumes on the subject of the organized crime and its infiltrations in the economy and society.
83 84 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:83
and to the system of ineligibility and incompatibility of positions in public administration and in the Presidential Decree No. 62/2013 which
sets out the rules of conduct for all civil servants. The system has been completed in 2014 with the integration of the supervision on public contracts in the system of corruption prevention, according to the law decree No. 90/2014, converted with modification by the Law No. 114/2014.
Among the most significant interventions intended to sharply affect the fight against corruption in Italy, in fact, it must be counted the legislator's choice of anchoring the supervision on public contracts already performed by the Authority for the Supervision of Public Contracts (AVCP) in the system of corruption prevention outlined by Law No. 190/2012.
The integration of the functions of the two institutions and the consequent extension of the powers of ANAC, set the conditions to oversee more effectively the scope of the contracts and public procurement in which nestles a substantial part of the corruption phenomena. The new institutional mission of ANAC consists in the prevention of corruption in public administrations and in subsidiaries and state- controlled companies through the implementation of transparency in all aspects of management; through supervisory activities in the framework of public contracts, and in every area of the public administration that can potentially develop corruption phenomena, as well as through the orientation of the behaviors and activities of public employees by means of advisory and regulatory interventions.
In these new, yet to be experimented, contexts the Authority has chosen not to behave self-referentially, labouring instead to ensure
institutional cooperation, on both national and international levels. The first aspect to be detailed is the one pertaining to the duties and the powers defined in Law No. 190 of 2012 and in its implementation decrees No. 33 and 39 of 2013 which define the three intervention directives aimed at preventing corruption in the public administration, articulated in the making public administrations more responsible , the implementation of the administrative activity transparency and the guarantee of public official's impartiality. 2016] ITALIAN ANTI-CORRUPTION 85
Specifically speaking, the goal of making public administrations more responsible rests essentially upon the effective drafting of a triennial plan to prevent corruption (Piano Triennale per la Prevenzione
della Corruzione, PTPC) within each public organization. The PTPC, which is required of all administrations in conformity with a general guidance act prepared and approved by ANAC, namely the national anti-corruption plan (Piano Nazionale anticorruzione, PNA), is modelled on the plan adopted by private companies pursuant to the Legislative Decree No. 231 of 2001, albeit with a few modifications, among which the appointment of a figure in charge of Corruption Prevention (Responsabile della Prevenzione della Corruzione, RPC)1 within each administration, who must arrange a PTPC to be submitted to the political-administrative body.
The PNA ensures the coordination of national and international strategies for the prevention of The PNA is structured as a programmatic tool subjected to an annual update with the inclusion of indicators and targets in corruption in public administration. order to make the strategic objectives measurable and to ensure the monitoring of the possible divergences from these targets arising from the implementation of the PNA. The PTCP within each public administration identifies, on the basis of the PNA, the specific risks of corruption in individual administrations and the measures deemed necessary to prevent them.
After the first application of this “cascade model”, the analysis conducted by the new ANAC on PTPCs, carried out on over 1,300 administrations, led to contrasting results; PTPCs were widely adopted and published (90% of PAs adopted a PTPC and of these, over 50% had updated the document in the previous year) although they were perceived as an act of mere bureaucratic compliance; the quality of the documents
_____ 1. The RPC, in the prevention of corruption system, is a central figure, with significant responsibilities, as well as a privileged interlocutor of the Authority, which hold a number of important functions. He has the crucial task of proposing the adoption of the PTPC to the political bodies of the PA, verifying its correct implementation and its continuing suitability, as well as reporting the results of the activity at the end of each year. Among the obligations of the RPC there is also the one to report to the judicial authorities about eventual corruption cases. 86 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:83
produced, in terms of the methodologies used and the sustainability and efficacy of the whole process, was, in many cases, poor. The disappointing result can be explained considering the novelty of the anti- corruption normative, the great variety among administrations and the levels of competence within them but also the lack of preparation which, in some cases, led to an underestimation of the task's importance.
Various critical issues emerging from the analysis: substantial absence of the deepening of the external context within which the administration operates (in over 80% of cases); poor mapping of internal processes (accurate in only 10% of cases); inadequate inclination to apply methods of risk weighting (in 35% of cases no method was proposed) or application of ineffective measures (in 45% of cases); poor integration with other tools, such as the performance management cycle (present in but 15% of cases); a tendency not to put in place specific measures to prevent corruption in addition to those mandatory in the PNA, and, when further measures (in 40% of cases) are proposed, they are superficially mentioned.
A specific analysis of the PTPCs was also focused on the creation of protection systems for state employees who report unlawful behaviour
at work (so called “whistle-blowers”). The whistle-blower system is struggling to catch on because the normative protection offered to the whistle-blower is not considered to be effective and because there is little inclination to report unlawful behaviour
(reporting is often considered a form of “delation”). In order to stimulate more frequent use of this measure by Public Administrations, the Authority, following a wide-reaching public consultation, published ad hoc guidelines (resolution 6/2015): these provide the administrations with recommendations on how to adequately protect whistleblowers while creating awareness on the necessity of having systems of protection in place.
In general, The Authority believes that the PTPC tool deserves to be pursued and so an adequate awareness of the public administrations
and a simplification of the plans' structure is needed. The second challenge is to implement in public activities transparency, which is, according to the most credited international 2016] ITALIAN ANTI-CORRUPTION 87
researches, the best way to prevent corruption; illicit affairs prefer the shadows and shirk from the light shed by transparency. However, for transparency to be genuinely useful, it must favour quality over quantity that is allow citizens easy access to clearly presented, useful information and thus stimulate civic and democratic participation.
Legislative decree No. 33 of 2013, which deals with transparency and requires all administrations adopt a Triennial Transparency and Integrity Program, is a step in the right direction though it is somewhat limited in some aspects. It dictates that administrations create an area on their websites called “transparent administration”, containing easy-to-find information on the most important facts concerning institutional bodies, executives, managers and activities carried out.
The Authority, which has supervisory powers in these matters, has registered a very high overall level of data publication for almost all public administrations regarding a large number of obligations imposed by the Law. However, this positive evaluation conflicts with the scarce attention to quality and completeness of information provided by some public administrations.
In this case too, public administrations should be sensitized to not experience the fulfilment as a bureaucratic-compliance attitude but as a “civic” accountability duty. The supervision of the Authority in this field was effective: the supervisory activity, activated in consequence of a report received from stakeholders concerning misapplication of the norm on transparency, obtained satisfactory results in terms of the percentage of administrations which comply with existing norms (80% totally compliant and 90% partially compliant). The choice to accompany and encourage administrations on their path to enforcement of anti-corruption and transparency norms has proven to be a winning one.
Also positive was the awareness demonstrated by citizens “:most
wrongdoings reported to the Authority (roughly 68%) are reported by “normal” citizens, not solely by state employees but also by professionals, and mainly concern councils and local public bodies (more than half of cases), that is those institutional subjects which are closest to citizens' needs; this is a sign that the general public appreciates and makes good use of the new “tool”. 88 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:83
The third aspect of the corruption prevention strategy is related to the guarantee of the elected and other public officials' subjective impartiality, as granted by the Italian Constitution (articles 97, 98 and 54 especially). To this end in the Italian legislative framework two provisions are adopted; the first, called a pre-employment provision, aims to prevent access or permanence in office to those who, for various reasons, the Law deems unsuitable or incapable of performing their public function impartially. The second, called a post-employment provision, endeavours to avoid situations that, were they to occur while in office or afterwards, could undermine a public official's impartiality.
Said provisions are detailed in two legislative decrees both of which enforce Law No. 190/2012; one (legislative decree No. 235/2012) deals with eligibility to run for elective posts and the other (legislative decree No. 39/2013) with incompatibility and ineligibility concerning administrative functions. It is only in the latter case, though, that the ANAC has supervisory powers while, in the former said case, powers are in charge of the Prefects and Antitrust Authority.
The importance of this legislation as a preventive tool against corruption would appear to have been understood not only by Public Administrations but also by the general public: associations and politicians (especially local) have reported on many issues and requested the Authority's opinions (which was promptly and clearly offered) in many cases.
To name but a few, the Authority expressed its opinions with reference to the incompatibility between the presidency of Professional Registers and the role of member of the parliament (resolution No. 8 of 2015) and established that provisions contained in legislative decree No. 39 should extend to all national health structures providing care.
Though fewer than three years have passed since Anti-Corruption Law (Law No. 190) came into force, and fewer still for its delegate decrees No. 33 and No. 39, recurrent issues and doubts about its application have arisen.
Many matters have been addressed by recurring to interpretation, adopting resolutions of a general nature; the reference, in particular, is to resolution No. 143 of 2014 which defines the political bodies subject to 2016] ITALIAN ANTI-CORRUPTION 89
particular transparency requirements; to resolution No. 146 of 2014 which considers the anti-corruption and transparency legislation applicable to Professional Registers; to resolution No. 10 of 2015 which defines the competent authority to issue penalties on transparency and to the recent resolution No. 8 of 2015, which includes guidelines for applicability of anti- corruption and transparency provisions in public companies, issued following a joint effort with the Minister of Economics.
There are however some flaws in the legislation which require legislative action to ensure the provisions are genuinely useful and
effective. Enforcing transparency, for example, would be a lot easier if the requirements for compliance were simpler, if civic access was better regulated, if access was generally granted even for activities which do not warrant publication of documents, if transparency was offset by some degree of confidentiality protection and, especially, if the sanctioning power was reviewed; for example, the lack of punitive consequences for those who chose not to comply with the Authority's rulings makes supervisory activity ineffective and keeps administrations from meeting the goals set for them by the legislative framework. As regards incompatibility and ineligibility, numerous amendments are yet to be made; some areas of legislation are uncertain and contradictory; the Authority's supervisory power is often limited to the expression of mere non-binding recommendations and the sanctioning tools are very difficult to implement concretely.
ANAC has highlighted and lamented these problems on many occasions through the work of a commission (collaborating with Italy's Privacy Authority on transparency issues), set up since late 2014, also thanks to the contribution of external experts and scholars; recently, for example, ANAC has submitted a report to Parliament, detailing 25 critical issues with reference to legislative decree No. 39.
The bill concerning PA reform includes a new mandate for the Government to change legislative decree No. 33 in such a way as to overcome many of the flaws lamented by the Anti-corruption Authority. Instead changes to legislative decree No. 39 have been postponed and will be affected by another forthcoming bill which the Authority hopes will be 90 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:83
adopted as soon as possible.
II. SUPERVISION, GUIDANCE AND CORRUPTION PREVENTION IN PUBLIC PROCUREMENT
Another of the Authority's areas of competence is that concerning supervising, advising, guiding and regulating PAs in the field of public procurement, a task which was formerly carried out by the suppressed AVCP. Law-decree No. 90 configures the Anti-corruption Authority's powers in such a way that they cannot be considered as merely functional to promoting Italy's development through efficiency and competitiveness; in fact they are also aimed squarely at preventing corruption and directing PAs towards proper application of tender assignment and execution.
Beginning with supervisory activity, the Authority has re- organised its work and approach in this field with the aim of reducing the level of bureaucracy and making so-called “traditional” oversight procedures more transparent, considering essential dealing with the most (also financially) important public contracts and doing so with rapid and timely decisions.
The first results, albeit relative to the first period, seem to indicate that things are proceeding in the right direction; 51 procedures have been completed in the public contracts for works sector, including oversight of Rome's Metro C line, Firenze's high speed railway, the A4 motorway : many anomalies have emerged in the assignment and/or execution of the works, leading to charges brought against the contacting authorities and to the denunciation of the anomalies to the National Court of Auditors and to the competent courts.
Oversight of the services and supplies sector, long side-lined in favour of that of works, has been revived by assigning it a dedicated division.
The division dealing with variations (the changing of some aspect in a public procurement phase) during the implementation of the project (whose transmission to the ANAC has become mandatory under the art. 37 of decree law n.90) is an absolute novelty and has led to the first sample examination of over 90 cases which, in turn, has shed some light on the 2016] ITALIAN ANTI-CORRUPTION 91
causes of this widespread anomaly. In the field of supervision, moreover, the oversight of Qualification bodies (SOA2), which had been the scene of many problems in the past, has
received a substantial boost also thanks to the adoption of a “Qualification Manual”, that endeavoured to offer operatives clear guidelines to stick to and has allowed to a far-reaching investigation into the conflicts of interest held by the owners of certifying bodies. The supervision activity also affects the system of qualification of competitors participating in public procurement contracts because this is a particularly exposed area to corruption phenomena, in which the role of the Authority is crucial in terms of prevention and repression with strong punitive measures, which include, among others, suspension and cancellation of certificates, suspension and the loss of the authorization for the SOA activity.
The most significant innovation, also contained in the new Supervisory Regulation, is certainly the new monitoring methodology called “Collaborative Supervision”, activated upon request of the contracting authorities themselves.
ANAC introduced “collaborative supervision” as a particular and exceptional form of verification, above all preventive, aimed at fostering a profitable control collaboration with the contracting authorities and thus guaranteeing the correct functioning of the tender operations and the contract execution, also preventing attempts of criminal infiltration in the tenders.
Coming from the positive experience made at “EXPO 2015”, the “collaborative supervision” could be systematically introduced in the organization of great events, initiatives and works of national or strategic interest in order to guarantee the transparency, correctness and quality of administrative choices from the very beginning.
This tool marks a cultural change: ANAC no longer intervenes to sanction and condemn illicit behaviour ex post (after the fact), when
_____ 2. Qualification is not carried out by public authorities or by other bodies governed by public Law: qualification is carried out by companies regulated by common Law, which are authorized by Italian Anticorruption Authority. 92 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:83
damage done is often difficult to remedy, but to prevent anomalies ex ante (before they occur) by guiding the administration towards better and more transparent choices and discouraging improper economic operatives
from responding to calls to tender. Memoranda of Understanding (MoU) specifying the conditions and the methods for the implementation of “collaborative supervision”
have been signed between ANAC and several contracting authorities. In fact the novelty appears to respond to the contracting authorities’ needs; proof being in the numerous MoUs stipulated – with Regione Lazio, Invitalia (including contracts for the Pompei project), Florence Airport, the Mission Structure to combat hydro-geological instability, the Industrial Development Area in Caserta, the INPS, Regione Puglia, SoGESID – and many others currently being agreed upon.
Always with respect to the supervisory activity, great stimulus has also been given to inspections which are assigned to a specific division, employing ten managers with significant skills, know-how and technical backgrounds. This team has fielded a plan of routine inspections together with the Guardia di Finanza (Italy's revenue and financial crimes police) and with the The State General Accounting Department's Inspectorate, alongside a plan for targeted investigations directed at those contracting authorities which had already shown up on the Authority's radar as possible sites of unlawful behaviour. In this sense, inspections have been directed at Roma Capitale (Rome City Council) to acquire information concerning contracts signed in the 2011-2014 period (a first report has already been submitted to the access committee set up by the Prefect) and, with similar goals, at Caserta hospital, disbanded by the courts because of mafia infiltration.
With a view to guiding administrations towards making the right choices, a couple of far-reaching investigations into the main Italian cities are worthy of note. One looked into contract negotiation processes, the other investigated contrived fractioning of contracting work; both discovered anomalies (especially the first) of which, in the best interest of collaboration, the administrations responsible were informed, in order to
put in place corrective measures. The Authority's advisory function for public procurement has also 2016] ITALIAN ANTI-CORRUPTION 93
undergone changes in terms of both norms and organisation; a new pre- litigation regulation (an extra-judicial controversy settlement) has been introduced and the conditions for asking the Authority to express recommendations have been defined. The activities just described are undertaken by one division which is directly liable to the ANAC President .
So-called pre-litigation has been restructured as a form of alternative dispute solution. It has been well received among users who see it as a free and fast path to obtain rulings on controversies that, while not-binding, have often been accepted and acted upon by contracting authorities.
Advices different to those of the pre-litigation should be made, instead, only when the issues raised by contracting authorities and private companies transcend the specific case at hand and are in the general
interest. In this light, the Authority's advisory function works as a corruption prevention tool for it preventively suggests the correct course of action not only for the case in question but for all analogous cases too.
Finally, the effects of the new institutional setup have also affected the Authority's regulatory activity which is carried out mainly by issuing guidelines and models for calls for tender. The past regulatory activity shows a common thread in that the Authority has attempted to open up the market to small and medium-sized companies (PMI), believing this will foster competition, in itself a force in opposition to corruption.
The opportunity of dividing contracts into lots, the provision of access requirements proportionate to the size of the participants - so that smaller companies are not penalized - are some of the distinguishing traits of the call for tender model (resolution No.1/2014) for cleaning of buildings services and of the resolution No.7/2015 for maintenance work. Even in the quite delicate sector of construction work projects, the resolution No.4/2015 has provided the contracting authorities with key directives on turnover and minimum staff requirements so as to open up the market to young professionals. Instructions to proceed with the division of contracts into lots have also been given for other services (e.g.
postal services). Numerous other types of contract will be subject to regulation in 94 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:83
the coming months, especially those concerning the award of service contracts to tertiary sector bodies and social cooperatives; contracts which in recent times have shown severe anomalies.
III. SPECIAL AUDITS AND EXTRAORDINARY MEASURES FOR PUBLIC CONTRACT MANAGEMENT
In addition to the ordinary supervision and guidance functions in the assignment and execution of public contracts, Law-decree No. 90 has provided for a series of additional innovative special tools, such as audits of the Expo 2015 procedures and other extraordinary measures for the monitoring and management of public contracts.
As for the Expo 2015 procedures, Law-decree No. 90 has introduced special auditing powers over Società Expo 2015's tender
contracts to be exercised by ANAC's President with the support of a “special unit” (UOS) also including Guardia di Finanza (Italy's revenue and financial crimes police) officers. Immediately the UOS, formed the day after the decree by three full-time auditors coordinated by a senior Guardia di Finanza officer with the support of ANAC staff, has initialised controls, following the guidelines agreed to by Società Expo 2015 itself, making use of an IT platform which made it possible to complete the
audit in a short period of time (average 7 days). The UOS verify, in advance, the legality of the acts connected to the award and implementation of contracts for works, services and supplies for the execution of works and activities related to the development of the EXPO particularly with regard to the compliance with the provisions on transparency.
The numerous procedures audited until now (about 200) led to legitimacy and merit instances which, in almost all cases, were acknowledged by Società Expo 2015.
Inspections, carried out jointly with the Milan Prefecture's antimafia (counter-mafia) division, did not get in the way of the Società's activities, on the contrary they allowed work (which had been interrupted following 2014 spring's arrests) to resume quickly and to be completed on the established date, in time for the Universal Exposition's inauguration 2016] ITALIAN ANTI-CORRUPTION 95
(1st of May, 2015). The work on EXPO was also an opportunity to experiment and put in practice the integration between anti-corruption controls and “antimafia controls” performed by an inter-institutional unit established in the
Prefecture of Milan and the methodology of “collaborative supervision”. This kind of supervisory approach received an important imprimatur by OECD, with whom a Memorandum of Understanding concerning the audits in question was been previously signed.
The memorandum of understanding between the ANAC And OECD set out the conditions for co-operation in order to achieve the following common objectives: increasing transparency and accountability of the procurement procedures related to EXPO 2015; increasing investors’, stakeholders’, and other actors’ confidence in the major event “EXPO Milano 2015”; identifying potential causes and eventual instances of corruption in the context of EXPO 2015 to prevent and counteract it; and reinforcing the know-how of both Parties regarding the prevention of and fight against bribery and corruption.
ANAC and OECD co-operated by sharing methodologies, exchanging information, supervising the oversight of procurement procedures related to the major event “EXPO Milano 2015”, and organising events, workshops and initiatives promoting transparency, accountability and reliability, involving EXPO 2015 stakeholders.
OECD, in two reports, stated that the system was an effective method of impeding corruption, applicable to other tenders associated to major events, in Italy and beyond.
In particular OECD underlined; the general increasing of EXPO transparency; the effectiveness of the problem-solving approach through the opinions sent by UOS to the contracting authority on the procedures under review and through continuous and real time contacts between EXPO and UOS to ensure that the contractual procedures meet from the very first moment the standards required; the effectiveness of the very timely control performed by UOS that were able to respond quickly to requests from the contracting in order to allow the processes to continue without major interruptions or delays. The general raising of the level of controls performed was also considered useful in order to potentially 96 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:83
dissuading future instances of corruption, given the explicit checks on the propriety of each procedural step in the tenders, and to restoring confidence among operators in the relevant market about the transparency and probity of award procedures and the subsequent management of tenders.
The Memorandum of Understanding between ANAC and OECD has been conceived as a kind of pilot project that may provide a more general control template for institutional cooperation on the supervision of public contracting procedures and of their subsequent performance, in accordance with the highest possible standards and leading international best practices.
Indeed, just as in the case of EXPO 2015, where it was indispensable to construct infrastructures by a given date to welcome visitors, the creation across the world of other large infrastructure projects and major events with a fixed opening date must necessarily aim at efficiently balancing the integrity and speed of the works.
For this reason, within the framework of the Memorandum of Understanding and building on the EXPO Milano 2015 experience, ANAC and OECD have drawn more general lessons and principles, the so called
“High Level Principles for integrity, transparency and effective control of major events and related infrastructures”, presenting them as a possible model for the international community and actors involved in delivering large one off events and related infrastructures such as
universal expositions, sporting, political and cultural events.
Law-decree No. 90 also introduced a new legal institution named “Measures for extraordinary and temporary management” more commonly referred to as “compulsory external administration of public procurement”
(commisariamento degli appalti); it was intended for application where contracts and concessions had been obtained by illicit, corruptive means (subsection/comma 1) or obtained by companies disqualified because of
mafia infiltrations (subsection/comma 10). The legislator's goal was that of allowing public works already contracted which was the subject of investigation to be completed without the bid-winners pocketing the profit. The latter had to be set aside while the judiciary decided whether to carry out seizures and/or requisitions. In the event that the judicial authority processes certain crimes 2016] ITALIAN ANTI-CORRUPTION 97
against the public administration, that is, in presence of detected anomalous situations and nevertheless symptomatic of illegal conducts or criminal events attributable to a company awarded a contract for the construction of public works, services or supplies, the President of ANAC proposes to the competent Prefect, either: to order the renewal of the corporate bodies by replacing the person involved and, if the company does not abide by the terms established, to provide for the extraordinary and temporary management of the contractor only for the full implementation of the contract covered by the criminal proceedings; to engage in the extraordinary and temporary management of the contracting company limited to the complete execution of the contract
subject to criminal proceedings.
The provision has the merit of acting solely upon the “incriminated” tender contract and not affecting the company as a whole. At the time of its introduction, the provision was received with great scepticism and bitterly criticised, being considered a potential limit to the entrepreneurial freedom and/or an interfere with judges' work.
The provision on-the-practical application has, to date, shown that most concerns were unjustified. Thanks also to the interpretational guidelines adopted jointly with the Home Office (Ministero dell'Interno), the measure was enforced only in confirmed and particularly severe cases and it allowed for complex public work to be completed, in some cases averting negative consequences in terms of employment. No conflict arose with the Judiciary; instead, fruitful collaboration ensued and obtaining the necessary documentation to proceed with compulsory external administration was always possible.
IV. CONCLUSIONS
In proceeding towards the conclusion, I feel I should spend a few words on the, until now but evoked, real protagonist of the report: the
corruption itself. It is common knowledge that, from a legal point of view, corruption is a criminal pact whereby there is a mutual exchange of favours: a public official does or promises to do something, in exchange for sums of money 98 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:83
or promise of other benefits. In everyday terms, corruption takes on a broader meaning thus defining an illicit system capable of perverting the course of public endeavours and activities.
The Judiciary, who should be thanked for their everyday efforts, have revealed through their investigations how corruption has become a systemic phenomenon that inhabits public contracts and other administrative environments; not only those one would “expect” to be infiltrated such as the authorisations and concessions sector, but also others commonly held to be above suspicion, like social initiatives assigned to the so-called social service organizations.
The structure of corruption has changed too; it is increasingly rare for corruption to occur as a bilateral relationship between he who gives and he who receives, instead it answers to and derives from unofficial organisations, sometimes of a mafia-type, in which there are public officials, entrepreneurs and fixers with common interests; they make up a
“gelatinous system” where one struggles to distinguish between bribed
and briber. Corruption is unfortunately a widespread phenomenon and not only because international rankings, based on citizens’ perception, paint such a picture (rankings which shouldn't be taken as Gospel truth) nor because of the supposed impact corruption has on the economy, estimated in figures which are as astonishing as they are of unknown origin (I refer to the famous and author-less estimate of €60 billion), but because it’s the empirical experience of it in everyday life, that can prove its existence and confirm its prevalence.
Finally, corruption is a phenomenon which has been underestimated for too long: even in reports by public bodies dating back only a few years, its existence was questioned and public concern was attributed to biased or captious media reports.
Today underestimation of corruption has, at least in part, been overcome; people are aware that the damage it causes goes beyond the scope of any individual public contract, act or behaviour. Corruption has a far-reaching impact on society, it undermines citizens' faith in their Institutions, it perverts the democratic contest, distorts competition, 2016] ITALIAN ANTI-CORRUPTION 99
discourages investment and it even contributes to the “brain drain”
phenomenon. And for this greater awareness the Italian President of the Republic deserves recognition for he has always underlined, starting from his inaugural address, the harmfulness and pervasiveness of this veritable social cancer. Pope Francis too tackled the issue going as far as to affirm several times that corruption is worse than sin for sin may be forgiven, while corruption may not.
These remarks on the seriousness and complexity of the phenomenon lead to clearly affirm that corruption cannot be combated unilaterally but requires multilateral, concomitant intervention; effective repression, prevention capable of injecting the system with the necessary antibodies and a cultural shift which raises citizens' awareness.
The duty of the ANAC , as stated, is to deal with prevention, but it must be made absolutely clear – and it isn't a way of reducing our own responsibility or preparing for failure – that we are charged with tackling but one aspect of the phenomenon; there are many other forms of intervention which take on a preventive function and depend on the actions of others different subjects: a more efficient and less invasive bureaucracy, honest, authoritative and credible politics, a business world that, as occurred in the struggle against the mafia, chooses to be on the right side would all contribute invaluably to the prevention of corruption.
Our task remains a highly challenging one and the contexts in which we operate are strategic in the struggle to limit corruption but the tools we have at our disposal require time and institutional collaboration to take effect, because nobody should be led to believe that we are the bringers of miraculous and salvific remedies.
During this last year, the Authority has tried to field many initiatives; it's presence didn't go unnoticed and it received ample media coverage for its efforts.
Daring challenges await us in the near future. The enabling act that provides the rewriting of the “Public Procurement Code”, unanimously approved by the Senate, and now at the examination of the Chamber of Deputies , adopts the latest EU directives heralding a new tender contract policy, and relies heavily on the Anti-corruption Authority which it 100 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:83
bestows significant regulatory and supervisory powers, so much so that it is recommended for the future role of arbiter of the system. I consider the Senate's vote to be a great reward and, to some degree, as recognition of the worth of what we have attempted to do, at least in terms of credibility. I can promise, on my and ANAC behalf, that if that definitive investiture should take shape, we will rise to the challenge and see it through to the end, taking on the enormous responsibility that it would entail.
Competition Policy in the Italian Economy: Current Developments and Lines of Action
Presentation to the Italian Parliament of the 2015 Annual Report of the Italian Competition Authority. Rome, 18 June 2015.
* GIOVANNI PITRUZZELLA
I. ON GLOBAL TRENDS AND NATIONAL ISSUES
Europe and Italy are finally emerging from recession. The OECD forecasts 0.6% growth in GDP for Italy in 2015, with potentially even more significant growth in 2016 (1.5%). The European Commission, too, is forecasting recovery, albeit limited, in Europe and Italy. The signs of recovery are weak but certain. In our country, sustained economic growth is essential both to maintaining social cohesion, which has been severely put to the test by high unemployment, and to ensuring the sustainability of the public debt.
During the years of crisis, anti-trust enforcement has held firm in Europe. Former European Commissioner for Competition Joaquín Almunia has always maintained that competition policy is one of the key instruments to end the crisis and get back on track to growth. The new Commissioner Margrethe Vestager began, in 2015, with a series of hard- hitting competition protection measures, i.e. the statement of objections against Google of favoring its own Google Shopping sites, followed by the filing of antitrust charges against Russian energy giant Gazprom.
In the broad arena of European constitutional law, competition
policy has remained a constant. More recently, it has also become a
_____ * Mr. Pitruzzella is the chairman of the Italian Competition Authority (ICA) since November 2011. A full professor of constitutional Law since 1994, he is currently on leave from the University of Palermo; prior to join the ICA, Mr. Pitruzzella has been a member and then the chairman of the Strike Regulatory Authority (an authority set up in Italy for implementing the law on strikes in essential public services). As a legal scholar, he is well-known for being the co-author (with Roberto Bin) of a manual on constitutional Law, now in its eleventh edition; he has also written six monographs and many articles on constitutional law and the law of economics, as well as edited numerous anthologies.
101 102 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:101
cornerstone of unwritten national constitutions. This has been possible not only because of the explicit recognition accorded to it at the formal level (see Article 117 of the Italian Constitution, as reformed in 2001 and consequently interpreted by the Constitutional Court), but also and above all because of the so-called modernization of EU competition law implemented by Regulation 1/2003, which has decentralized the application of European Competition law to the national authorities.
In 2014, the Commission adopted the Communication Ten Years of Antitrust Enforcement under Regulation 1/2003. Achievements and future perspectives, which stressed among other things that after ten years of reform, national competition authorities – such as the Italian Competition
Authority (hereinafter also “ICA”) – have become fundamental in the
application of European competition law. Rigorous enforcement of competition law, with its robust system of sanctions, allows three particularly important objectives to be achieved in terms of growth and equity: a) firstly, competition stimulates innovation, which is the main engine of growth; b) secondly, it prevents the proliferation of rent-seeking behavior by players who, instead of competing on merit, leverage their relationships with public authorities to obtain privileges or excess profits by abusing their market power or even concluding agreements to ensure higher prices. Such rent-seeking behavior does not create new wealth, but removes resources that would have been left for others, such as consumers or public entities, from the system, impacting negatively on the increase in aggregate demand or their use in public budgets to stimulate growth and foster social cohesion; c) finally, competition counteracts excessive inequalities (which, according to an influential school of thought, have engendered the crisis) as by limiting privileges based on rent-seeking positions, it prevents wealth from being concentrated towards the top of the social structure.
A properly functioning competitive market is therefore one of the most effective tools for preventing the spread of corruption, which is a pervasive cancer of the economy.
While the aforementioned are the “virtues” of the Euro-national competition protection system, switching our attention to the specific dynamics of the Italian economy it should be stressed that, even before the 2016] COMPETITION POLICY 103
crisis started, it was characterized by relatively weak growth, linked to low competitiveness. One reason for this, according to analyses by a number of international organizations, was the lack of openness to competition of the structure of its markets, where – as highlighted in the report of the Antitrust to Parliament last year – “crony capitalism” and rent seeking have long dominated.
In this context, inequalities have grown too. According to a recent analysis by the Kiel Institute for the World Economy, Italy’s situation is unique. Not considering state intervention, namely the redistributive effect of taxes and government expenditure, the Gini coefficient (which measures inequality) rose from 0.42 to 0.53 between the mid-eighties and 2010 (the index ranges from 0, in the case of complete equality, to 1, where all wealth is concentrated in a single person). In the USA, the pre-welfare coefficient is 0.48. This means that the economic structure in Italy, at least until 2010, has created large areas of privilege: instead of an open market, rent-seeking positions have prevailed. Italy is passing through a phase of profound change and the ICA is part of this process. Vigorous enforcement, of which much has been made recently, and encouraging, through the extensive use of powers of advocacy, the removal of regulations that create market barriers and bottlenecks, are part of the broader context of structural reforms adopted by the Government and Parliament.
Opening up to competition is part of a change in the legal framework which is finally creating conditions conducive to enterprise and removing some of the main reasons for this lack of competitiveness. In this area, mention should at least be made of labor market reform and the Jobs Act, the enabling law for public administration reform, the new civil justice rules, the forthcoming reforms of fiscal law, public procurement code and the ultra-wideband project.
Further impetus to the opening up of markets and increased competitiveness may come from approval of the annual competition bill submitted before Parliament by the Government in April, which incorporates most of the recommendations sent by the ICA in July 2014. It regards markets that are still subject to regulations which create privileges and rent-seeking behavior, thus stifling competition and innovation: insurance, professional services (pharmacies, notaries, 104 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:101
lawyers), telecommunications, fuel and power distribution. Opposition from lobbies defending their privileged positions will certainly make
itself felt; however, we are sure that Parliament will not yield. In this changing context, businesses are beginning to hire (employment is finally growing: +0.6 in the first quarter of 2015), their propensity to invest remains high (although their commitment to research and development remains weak), exports are increasing (+2%), a number of firms have consolidated their global leadership in innovation in key sectors (from energy to precision engineering, agri-food and Italian-made goods), there is major foreign investment, the numbers of new businesses (275,000 in 2014 alone) and innovative start-ups (over 3,000, more than one third of them in 2014) are increasing, businesses in certain sectors that seemed to have stagnated have begun investing again (as is happening with the commitments of telecommunications operators to ultra-wideband, with over 5 billion euros of planned investments).
Virtuous interaction between public policies, the ICA’s activities and firms’ behavior imparts a specific direction of change to the Italian economy: from rent-seeking behavior and crony capitalism to an economy that is open to competition “on merit” and on innovation. The transition is still incomplete and not without contradictions. However, it is essential if we wish to set in motion sustainable economic growth with a view to safeguarding democracy and social cohesion. It is now a shared theoretical tenet that innovation is the key driver of economic growth. According to Nobel laureate Edmund Phelps, western nations in which growth historically has been strong and sustainable and which have most easily overcome the crisis are the ones which have dynamic, innovation- based economies seeking new products and services, or new ways to produce them. This requires a business environment where new ideas can flourish and find the space to be tested, implemented and funded. This requires a culture that places value on creativity and institutions that ensure that markets are opened up to innovators. The guarantee of open market structures, innovation and growth are closely interlinked. 2016] COMPETITION POLICY 105
II. ON COMPETITION POLICY AND ITS TOOLS IN ITALY
We have discussed the importance of antitrust enforcement. It is now time to go into more detail by providing some figures regarding enforcement activities.
Since the beginning of 2014 to date, 266 million euros of fines have been imposed (specifically 186 million euros in 2014 and 80 million euros in the first five and a half months of 2015). The focus has been on the more serious attacks on competition, namely cartels and agreements. Indeed, 23 proceedings concerning agreements and 3 concerning abuse of a dominant position were concluded. In the same period, 10 new cases concerning agreements and 3 relating to abuse of a dominant position were initiated. All of the proceedings were highly complex, involving sophisticated investigations including computerized inspections, detailed economic analyses, market studies and considered legal assessments, extensive investigative findings and defenses of the parties. The ICA has wielded its powers equally vigorously to protect consumers against unfair commercial practices. A total of 210 cases were concluded (163 in 2014 and 47 in 2015), resulting in 30 million euros of fines (including 19.5 million euros in 2014).
Protection of competition and consumer protection are highly interdependent. The Italian model, in which both tasks are assigned to a single institution, is seen as a success in Europe. This model has been consolidated by Legislative Decree no. 21 of 2014, which recognizes the
“general” competence of the ICA in all economic sectors, including the consumer protection sphere. Protection of competition intervenes on the supply side by guaranteeing an open market structure based on consumer welfare. Protection against unfair commercial practices intervenes on the demand side by helping to boost consumer confidence and encouraging competition between companies based on actual merit and not on deceit, fostering innovation by this means too.
As regards antitrust, the trend which in 2012 started redressing the balance between final decisions accepting commitments and final decisions imposing fines in favor of the latter has continued recently. The clear message to the markets is that illegal antitrust and unfair commercial 106 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:101
practices are prosecuted with severity and that the chances of avoiding a fine for wrongful acts are extremely remote and in any case subject to the presentation of concrete pledges to remove, at the root, the concerns
expressed at the start of the proceeding. At the same time it should be emphasized that the rules of the preliminary proceedings before the ICA ensure the right of defense through an adversarial procedure, and the initiation of an investigation never amounts to a negative prejudice against the company, as proceedings may conclude with it being ascertained that there is no evidence for the alleged offence. Furthermore, the organizational model of the ICA ensures the independence of the departments in the investigation stage and separation from the decision stage involving the board.
In short, it is an organizational structure that is capable of strengthening internal dialogue and independence, as well as guaranteeing full, impartial assessment of the reasons of the parties.The subsequent full judicial review by the administrative judge rounds off and ensures the greatest possible protection of the right of defense of the enterprise concerned. The result is a system fully consistent with the guarantee-based approach of the European Court of Human Rights with regard to procedures for independent administrative authorities to impose penalties (see its important judgments in re Menarini and Grande Stevens).
The completeness and quality of the judicial review are a guarantee for the ICA. When the administrative judge corrects us, we draw important conclusions for our future work. When the judge agrees with our decisions
– as has happened recently in the most high-profile cases – it helps to strengthen the general deterrent effect of the antitrust enforcement system and also makes it easier for all parties that have suffered damages to start
actions for damages in the civil courts. The process of opening up the markets is not achieved through the use of sanction proceedings alone. Our role as competition “advocates” using various means provided for by applicable legislation has been wielded with equal vigor. The ICA submits reports to the Government and Parliament which identify the existence of regulations that hinder competition in certain markets and call for its removal. Since 2014 to date, 127 opinions and reports have been submitted to Parliament, the 2016] COMPETITION POLICY 107
Government and public administration in general. It is important to remember the views submitted to the Prime Minister’s Office concerning compatibility of regional laws with Article 117, second paragraph, letter e of the Italian Constitution: in 17 cases where the Government has challenged the regional law reported by the ICA, the Constitutional Court has upheld the appeal on 9 occasions and rejected it in 4 cases; the other appeals are currently pending.
Finally, it should be pointed out that the ICA has made extensive use of the faculty to challenge competition-restricting administrative acts before the Regional Administrative court. It is a tool that has proven particularly effective: in 74 percent of cases, the regional authorities concerned have come into line with the ICA’s recommendations, without the need to go to court as provided for by law.
III. ON ANTITRUST AND CONSUMER’S PROTECTION IN ITALY: RECENT
DEVELOPMENTS
The ICA’s actions have focused on those areas where rent-seeking has been strongest and where the introduction of a more competitive structure can stimulate innovation and growth. In the short time available,
only a few brief examples can be provided. The pharmaceutical market has recently been a major focus for the ICA. In the Roche/Novartis case, the ICA acted to punish a horizontal market-sharing agreement reached by pharmaceutical industry giants, designed to limit the spread of the cheaper, yet highly effective, safe cancer drug Avastin, distributed by Roche for off-label use, including for the treatment of ophthalmic diseases – in favor of the more expensive Lucentis, sold by Novartis. The difference in price between the two drugs was exorbitant: for the cost of a dose of Avastin, which could range from around 15 to 80 euros, the equivalent dose of Lucentis cost over 900 euros. In ascertaining the existence of and sanctioning this detailed system of collusion between the two pharmaceutical companies, the ICA clearly did not enter into the medical or scientific issues regarding the efficacy and safety of the medicines. However, in this regard, we cannot but note the World Health Organization’s recent rejection of the request by Novartis to 108 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:101
include Lucentis in the list of essential ophthalmic medicines, precisely because Avastin is already in the list and is considered effective and safe,
as well as being cheaper. This agreement clearly shows how the antitrust investigation has significant implications in terms of public spending, especially in a context where stringent budgetary constraints are likely to heavily impact the funding and functioning of public health care. The Lazio Regional
Administrative Tribunal has fully upheld the ICA’s decision and the
appeal is currently pending before the Council of State. Similar concerns – in terms of alteration of the proper functioning of the market and of impacts on the ‘right to health’ and cost containment in public pharmaceutical spending – underlie the investigation currently under way into alleged abusive strategies implemented by another pharmaceutical company. These strategies consist in conduct designed to obtain, during negotiations with the National Drug Agency (Aifa), including through the credible threat of withdrawing its medicines from the market - a very significant increase in the sale price of a number of anti-cancer drugs, for which no substitutes exist.
In addition, with a view to ascertaining effective competitive dynamics in pharmaceutical markets, a sector inquiry into vaccines for human use was recently launched.
Another area in which the ICA has intervened several times is that of procurement. Competition is stifled by direct bid-rigging agreements to share contracts among companies, which obtain a profit equal to the increase in prices compared with the prices that would have been offered under conditions of effective conditions. Bid rigging – that is, coordination between companies participating in the public procurement market – offloads rent-seeking costs onto public finances, diverting resources from uses that are more instrumental to stimulating the economy or strengthening social cohesion. In this sector, as is well known, the National Anti- Corruption Authority (hereinafter also “NACA”), is doing an extraordinary job; the ICA’s activity, within its remit, takes place in a climate of profitable, ongoing cooperation between the two Authorities, whose common goal is the creation of transparent and fully competitive markets. 2016] COMPETITION POLICY 109
The main antidotes available to combat the spread of corruption – a veritable hidden tax on the economy – are effective competition and, as repeatedly pointed out by the ICA, legal certainty and the reduction of red tape in such a way as to reduce margins for discretion concerning interventions in the economic sphere.
Since 2014 to date the ICA has uncovered and imposed fines in relation to 5 agreements concerning, inter alia, the procurement of public transport insurance contracts, postproduction services for the national television company (Rai), materials and services for the national railway company (Trenitalia), and catering services on the motorway network. A proceeding is ongoing to verify the possible existence of coordination among companies with a view to lot-sharing under the public procurement agency (Consip) tender, with bidding starting at approximately 1.63 billion euros, for the awarding of contracts cleaning services in public sector educational institutions and training centers.
Conduct of enterprises aside, in local public services there are still too many obstacles that suppress competition and innovation by creating privileges and encouraging rent-seeking behavior in favor of a limited number of operators, often of a public nature.
For this reason, on several occasions, the ICA has requested the removal of measures which guaranteed the extension of reservations to liberalized services or services in any case not considered exclusive by law, and has demanded that the stringent requirements prescribed by European law to justify “in-house” provision of such services and exceptions from competition deriving therefrom. In this sector, competition, both in and for the market, remains the preferable option with a view to reducing public expenditure and providing people with more efficient services.
The banking sector is of strategic importance with a view to creating market arrangements that can act as an incentive for economic recovery and sustain Italy’s competitiveness. A number of important recommendations made by the ICA regarding the creation of stronger competitive dynamics in the banking sector have recently been implemented by the legislator with Decree Law no. 3 of 2015 (Urgent measures for the banking system and investments), which addresses two very important aspects, on one hand by acting on the structure and the 110 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:101
governance of cooperative banks (“banche popolari”) with the aim of making the system more efficient and competitive, and on the other by introducing measures to improve the “portability” of current accounts, thus incentivizing consumer mobility and helping a more competitive market to emerge.
With regard to enforcement of competition rules in the area of the conduct of banks, an investigation is currently underway to ascertain whether a number of banks operating in the Bolzano and Trento areas have established a competition-restricting agreement on mortgage interest rates.
Remaining on the subject of the banking sector, the Memorandum of Understanding recently signed by the Ministry of Economy and Finance and the Association of Joint-Stock Savings Banks and Bank Foundations
(“Associazione di fondazioni e di casse di risparmio”), marks the beginning of a process of self-reform on the part of banking foundations. It aims to solve a number of key issues, which have been raised several times by the ICA, linked to the role of foundations as bank shareholders. The contents of the Memorandum of Understanding are a step in the direction recommended by the ICA, in the sense that they seek to overcome the role and influence of foundations on the shareholding structure of Italy’s banking system.
The professional services sector has undoubtedly undergone a significant process of liberalization. Nevertheless, regulatory frameworks remain which lend themselves to “self-interested” restrictive interpretations by professional associations, and are liable to invalidate the scope of recent legislative deregulation. The ICA has focused on these profiles when exercising its powers of reporting. In terms of application of competition rules, the ICA’s attention has focused on the conduct of professional associations inclined to influence the most important competitive levers in the exercise of business: setting of tariffs and advertising. The interventions focused on almost all professions, including lawyers, notaries, doctors and architects.
I must stress that the action of the ICA in the liberal professions is not intended to question the application of codes of conduct to ensure ethical practice, training, reliability and professionalism, and the role of professional associations in this delicate task, but rather to ensure that such 2016] COMPETITION POLICY 111
legitimate and extremely important tasks do not result in – or become a smokescreen for – undue limitations on the full effects of competition mechanisms to the detriment of the consumers and, ultimately, the
professionals operating on the market themselves. Another major sector that has received the ICA’s constant attention is telecommunications. However, before talking about what has been done, a number of aspects of the general framework in which the ICA’s most recent interventions have been implemented should be mentioned.
1. THE NEW TELECOMMUNICATIONS CHALLENGES
The process of radical change (in terms of economic and institutional structures), induced by the need to address the crisis and to stimulate growth, must deal with another major factor of change, which is independent of the crisis: the fourth industrial revolution ushered in by the unfolding digital economy. Digitization, in all of its myriad forms – from new web-based services to the unprecedented creation of communities via digital platforms, to the “Second Machine Age” (to borrow the title of Erik Brynjolfsson and Andrew McAfee’s brilliant essay on the increasingly pervasive role played by digital technologies in production processes) – constitutes the greatest expression of the push for innovation and a key driver of growth. Therefore, today Italy faces the challenge of rapidly bridging the digital divide which separates it from the major European countries (based on the 2015 Digital Agenda Scoreboard, Italy ranks 25th amongst EU States in terms of digital maturity). Likewise, it should be recognized that the fourth industrial revolution brings with it unprecedented conflicts that seem to characterize the economy of the twenty-first century, such as the mass destruction of jobs in traditional economic sectors, the emergence of new forms of inequality and of players (such as “over-the-top” service providers) who wield even greater economic power than the traditional multinationals and thus capable of influencing both the dynamics of the market and potentially closing the market to new entrants, and the functioning of democracy, and finally new conflicts between Internet giants and enterprises in more traditional sectors 112 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:101
(for instance, the conflict between Uber and taxi drivers, or between
Google and traditional publishers). Such conflicts may fuel Neo-Luddite movements determined to resist change. The alternative is to seek to minimize the negative effects and take advantage of the latest industrial revolution: freedom as opposed to limitation, abundance as opposed to scarcity. This abundance consists in greater volume, variety and quality and lower costs of many goods and services made available by the digital economy.
How to achieve all of this is the task of politics, at the national and at the European level. For example, as an ICA’s recommendation has pointed out, the copyright regime needs rethinking so that innovations regarding the use of content on the web are reconciled with the need to ensure that the content’s creators are paid. Yet the challenges which we have outlined extremely briefly also bring the Antitrust into play. First, it should promote the rapid development of an ultra-broadband network, without which new digital services will not have the necessary infrastructure to develop. The new opportunities open to companies (for instance ecommerce which allows businesses to have a presence in global markets, or the cloud) and to consumers, in terms of quality of services and greater possibilities for choice, require a large amount of bandwidth and therefore a “futureproof” network.
Telecommunications is, in fact, the backbone of the digital economy. However, it should be noted that control by a vertically integrated operator of the fixed network infrastructure, used to access the internet – in the absence of competing infrastructure – can provide rent-seeking profits if there is no eligible collateral which ensures that the owner of the infrastructure allows other operators to access the network, at non- discriminatory conditions. In this respect I wish to recall that the Council of State, in a judgment handed down in 2015, definitively confirmed the decision of the ICA to penalize Telecom Italia 103.8 million euros, among other things, for having made access to its network difficult for other operators. However, the attention of the ICA is not only directed towards static competition. The issue of investments in the fiber-based networks, in fact, was the subject of an inquiry into the broadband sector which the ICA, in conjunction with the industry regulator, concluded at the end of 2016] COMPETITION POLICY 113
2014. Today more than ever the capacity of private operators to fully grasp the investment opportunities offered by the market depends on public policy being certain, transparent and consistent in its various
institutional guises: industrial policy, competition, regulation. Thanks to the work of all the institutions that contribute to the economic governance of the sector, this objective is within reach, especially after the establishment of the Italian strategy for ultra- wideband by the Government, which of course depend on industrial policy choices to ensure efficient infrastructure development, without prejudice to the need to achieve this in a truly competitive environment. Now it is up to enterprises to do their part as market players by unreservedly taking up the challenge of innovation.
2. NETWORK ECONOMY AND COMPETITION CONCERNS
A number of serious questions are posed by the emergence of so- called network giants, holders of such market power that they have a direct effect on economic relations in the real economy. Today, access to certain platforms is in fact often a necessary condition to carrying out activity that is typical of the real economy.
This is the case, for example, of hoteliers in relation to Booking.com and Expedia, through which most hotel reservations are
made. The ICA took action to verify the legality of the clauses in the contractual conditions imposed on hotels which prevented them from charging lower prices through other online intermediaries and other distribution channels. The preliminary investigation against Booking.com was concluded (while remaining open against Expedia), with the acceptance of undertakings on the operator’s part to limit the use of the clauses concerning equal rates as an integral part of its business model based on the payment of commissions, thus significantly increasing room for manoeuvre on the part of hotels. The undertakings offered by Booking.com, accepted simultaneously by the three intervening Antitrust authorities (Italy, France and Sweden) – an example of successful collaboration within the ambit of the European competition network – 114 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:101
achieve the right balance for consumers and restore competition, while at the same time preserving the simple, free use of search and comparison
services, thus encouraging the development of the digital economy. In many other cases, the ICA’s actions have concerned the vast world of e-commerce and have put consumer protection tools to use. Specifically, the issue of false online reviews published on the popular website Tripadvisor was addressed. The ICA ascertained the absence of adequate monitoring procedures to ensure that the views expressed were always the result of actual tourism experiences; this conduct was sanctioned as it constituted unfair commercial practice. Similar action was taken with regard to online car insurance comparison tools, which lacked transparent information about the nature of the economic activity they perform, on the breadth and representativeness of the comparisons, as well as methods used to calculate the discounts advertised.
Action to protect consumers in this area was enhanced by the valuable cooperation of the Italian Insurance Supervisory Authority (Istituto per la vigilanza sulle assicurazioni, IVASS). Another case in point regarding the risks to which consumers are exposed online concerned the download of apparently free applications on smartphones and tablets from online stores. The subject of the investigation – which included both developers and the iTunes, Google Play and App-Shop Amazon for Android online stores – was the potentially misleading practice of portraying apps not requiring any payment for download and installation as free, but subsequently offering them for so-called in-app purchase in order to unlock full use of the software or access to specific functions and/or content, to jump to higher levels in videogames, and so on. The investigation ended with undertakings on the part of companies to increase transparency by eliminating the term ‘free’ from the product description, that is by specifying that only downloading the application is free, thus protecting consumers, especially younger consumers. Our anti-counterfeiting activity has continued, thanks in no small measure to reports by consumer groups and INDICAM, the industry association against brand counterfeiting. Our investigations revealed clear evidence of websites selling counterfeit products deliberately misleading visitors, and in many 2016] COMPETITION POLICY 115
cases was able to block access from Italy to these websites. Together with
the consumer, the ICA has acted in defense of the “made in Italy” label. The ICA’s consumer protection activities have not been limited to the more technologically advanced sectors but have also focused on particularly sensitive sectors where the nature of the service and characteristics of the market lead to a strong imbalance in commercial relations with businesses.
In order to eliminate this situation of “pathological dependence” on the company on the part of consumers, the ICA has stepped up enforcement measures in the electricity, gas and water sectors, where there have been reports of particularly heinous cases of unsolicited supplies, billing of large sums for alleged consumption accompanied in some cases by refusal to allow payment in instalments, threats to cut off the service and initiation of proceedings to recover arrears.
The ICA’s consumer protection activities have also benefited
greatly from its close collaboration with the Italian Authority for Electricity, Gas and Water Services (Autorità per l’Energia Elettrica, il Gas e i Servizi Idrici, AEEGSI).
3. ON THE LEGALITY RATING AND CONFLICTS OF INTERESTS MONITORING
The effectiveness of the legality rating – namely the control made by ICA on the ownership of due requisites by companies willing to carrying on specific activities – in the fight against corruption and illegal business practices was further strengthened with the adoption in February 2014 of the inter-ministerial decree, which set out criteria to take account of this certification when granting of public financing and access to credit.
The “reward value” of this important instrument has provided a strong incentive for companies to voluntarily undergo the ICA’s evaluation process. Thanks to this new tool, the number of applications for ratings has more than doubled, from 142 in 2013 to 407 in 2014, before reaching a very high peak of 605 applications in the first five months of 2015.
Since in order to combat illegal practices, far-reaching action is required which includes all of the administrations involved in various ways in this delicate task, during the year the ICA has worked even more closely 116 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:101
with the NACA to create an effective synergy in the acquisition of information necessary for both organizations to optimize performance
their respective institutional duties. The ICA also continued to monitor potential conflicts of interest. In this area, during 2014 greater awareness was in evidence regarding the prohibitions relating to the assumption of office among people whom the law regards. 612 cases were dealt with in 2014, with 146 cases of ineligibility in connection with ownership issues, 401 conflicts of interests and 65 cases of prohibitions after having occupied certain positions. The pathological stage of the system of prohibition against occupying posts after having occupied certain positions has been virtually eliminated due to the intensive consultation process that began in 2011.
At the regulatory level, however, the reform measures necessary to strengthen the ICA’s powers of prevention and enforcement still need to be implemented, by following the progress of the draft legislation still being debated in Parliament. In this sense, as the ICA has repeatedly stated, the notion of conflict of interest needs to be reformulated in order to give importance to the situation of “danger”, in the wake of solutions adopted at the international level. Vulnerable Person: Data Protection and Digital Society
* ANTONELLO SORO
Presentation to the Italian Parliament of the 2015 Annual Report of the Italian Data Protection Authority (IDPA). Rome, 23 June 2015.
I. THE KEY IMPORTANCE OF DATA PROTECTION
Progress and innovation have brought about in-depth changes in the way we live, move around and shape our world. Proof is given not only by the manifest changes in communication systems, but also by the even more substantial changes impacting business relations – such as the development of a data-driven digital economy, which is modifying the geographic distribution of power worldwide.
There are companies whose growth has caused havoc in time- honored mechanisms of competition since they can lay hands on the whole gamut of knowledge that is generated day by day by seven billion people.
This has to do with the exponential growth of Big Data, fueled by the intensive use of increasingly sophisticated and accurate computing techniques. This has to do with the Internet of Things and its manifold applications – from domotics to wearable technologies – which provide everyday objects with digital identities.
But this has also to do with the “wired planet” – the new dimension of our lives, which are tracked down not only via the Web but also via geolocation, drones and smart devices that can even process emotional or dynamic information in real time. In this all-pervasive network of ever- interacting and interconnected things, man does run the risk of being
_____ * Mr. Soro is the chairman of the Italian Data Protection Authority (IDPA) since June 2012. Prior to his appointment, Mr. Soro was Mayor of the city of Nuoro and Member of the Regional Council of Sardinia. From 1996 to 2012 he served as an MP in the Italian Chamber of Deputies. During his parliamentary term, he was member of several key bodies and committees, including the External Affairs, Social Policies and European Policy Affairs Committees. He worked on important dossiers and contributed to the drafting of many bills including the one on ethics rules for journalistic activities to protect wiretap data and legislation to protect crime victims.
117 118 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:117
downsized to a medium that can be analyzed and monitored in terms of behavior, profiled to better target his choices, kept under surveillance to bring about increasingly invasive controls that encompass, ultimately, our
own homes and physical bodies. Everything revolves around the unbridled collection of data.
However, we are our data in a digital society: thus, a vulnerable data is the same as a vulnerable person. This should be the starting point
in the search for new, more effective safeguards of our freedoms. What is being analyzed, broken down and reprocessed is our identity – thanks to algorithms that can determine key decisions not only in economy, politics or finance, but increasingly in our daily lives as well.
From telemedicine to online polls; from e-justice to e-health; from video surveillance to social networks and live streaming applications such as Periscope, from online press to genetic analysis of crimes: there is no area of public or private life where the processing of personal data is not a prerequisite, which makes it necessary to have sound safeguards in place so as to prevent that data from being used ‘against us' by
stripping us of our freedoms rather than facilitating their exercise. This in-depth change in the very making of our daily lives raises questions and concerns; it highlights the conflicts due to the multifarious dimensions of real life and points to the sensitive issue of the man- machine relation – the unspoken fears that artificial intelligence may become autonomous from man coupled, on the other hand, with the temptation to entrust technologies with decision-making processes that should be up to humans.
The scenarios of digital society conjure up major challenges we must tackle without either giving in to powerlessness or harboring useless feelings of hostility. We should get away from the lure of technology- hostile approaches or the fear of innovation without giving up on countering possible distortions and looking for ways to regulate this process – generally speaking, without giving up on living responsibly.
Against this backdrop, data protection stands out not only as a right related to one's intimate sphere, but as an indispensable tool to reconcile technical feasibility and legal acceptability, ethics and progress – as a precondition to exercise all other freedoms. 2016] VULNERABLE PERSON 119
It should be observed that both the Italian Court of Cassation and the UNO clarified recently – interestingly, almost at the same time – that rights should be afforded the same protection both online and offline,
whilst digital identity is no less ‘personal' than one's real identity. The IDPA's work is being carried out in the context of these manifold changes.
II. TOWARDS AN USE OF ICT BY PUBLIC ADMINISTRATION THAT IS MINDFUL OF THE VALUE OF PERSONAL DATA
The vulnerability of unsecured data produces disruptive effects on
data integrity, accuracy, and availability. There can be no data protection without security, and ensuring security is increasingly difficult: only consider the exponential growth of cyber-crime, of which we all are potentially victims – from identity thefts to violations of e-payment systems up to DOS attacks for extortion purposes.
The first challenge this Authority has to take up consists in fostering a systematic approach to the protection of data and infrastructures at both public and private level.
In the digitalized public administration, security is a key target in order to
build citizens' trust and ensure efficiency and transparency. The IDPA has stepped in to carry out controls and impose security measures for storage systems, data flows, and the interoperable databases that are shared by public administrative bodies, local authorities, social
security and other agencies. Several decisions were adopted, often following on-the-spot inspections, and they mirrored the fruitful collaboration with the individual bodies – which usually complied with our guidance.
A major effort was made by the IDPA to enhance security of the public system managing digital identities, which is expected to turn into a veritable critical infrastructure as its efficiency and reliability will be a precondition for citizens to fully trust the use of online services. 120 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:117
Setting up a modern, effective public taxation system cannot do without the creation of new databases and the implementation and
interconnection of the existing ones. Several opinions were rendered to financial bodies including – most recently – those calling for amendments to the tax return forms introduced by the Revenue Agency; this allowed devising technical arrangements to ensure secure, logged, targeted accesses to taxpayers' data.
The same applies to the health care sector. Some of the key areas of the IDPA's activity included the digital storage of medical records,
online clinical examinations, health records and reports. Whenever the mechanisms in place were found to be inadequate as part of the many fact-finding investigations we carried out, specific measures were taken to block or freeze the processing – as was the case
with some leading public hospitals. Technological innovations must go hand in hand with IT security systems that can ensure data authentication and traceability, selective accesses via unique credentials, encryption, alerting and auditing mechanisms: this is where the IDPA focused its attention, among other things, when assessing the many ambitious projects to modernize Italy.
This is also aimed at countering the new vulnerabilities of digital society – which actually come on top of old, no less awkward ones: I am thinking, for instance, of a HIV patient applying for fee exemptions at the health care unit where he or she is employed, or of the student that changed his or her sex and has to submit his or her university degree, or of the controversial issues related to anonymous childbirth.
III. TOWARDS TRULY DYNAMIC, FUNCTIONAL DATA PROTECTION
We are fully alert to our duty of making the principles of our Code effective by doing away with blotched information notices – whenever possible – and requiring solutions to be implemented that are reality- oriented. We consolidated a virtuous path of discussion with industry in order to lay down shared rules that would be amenable to implementation.
Rather than devising unwieldy solutions that make enforcement ultimately impossible, we have been looking for new approaches – like in 2016] VULNERABLE PERSON 121
the case of cookies and mobile payment – that do not hamper user experience and require users to be active as well as informed stakeholders.
However, simplification must be accompanied by sound
transparency policies. We spare no effort in order to prevent consumer data from being exploited, whilst not underestimating market requirements: this was the case in the opinion rendered to the Ministry of Economy on the system
set up to prevent identity thefts in consumer credit. As for employer-employee relationships, the growing recourse to ICT in corporate management and the widespread use of geo-location and smart camera devices have blurred what was once the clear-cut boundary between one's private life and life at the workplace. The legislative decree that is being discussed by Parliament will hopefully include the changes enabled by innovation into a set of safeguards to prevent unjustified as well as intrusive controls in compliance with both the principles set out in the law empowering the government to pass such legislation and the constraints placed by European law.
Monitoring equipment and facilities in greater depth should not
translate into the unjustified profiling of employees. It is increasingly necessary to reconcile corporate efficiency requirements with the protection of rights. This was the rationale underlying all the decisions taken by the IDPA as part of several prior checking proceedings as well as in connection with the guidelines on biometrics.
In the private sector, we launched specific investigations to check compliance with the orders the IDPA had issued to banks some time ago so as to enhance the security of both IT systems and customers' data.
In fact, security is key in the new EU Regulation, which is approaching the final stage of discussion. The draft Regulation would appear to put much emphasis, among other things, on the adoption of security-by-design approaches vis-à-vis technologies; further, it fosters data protection impact assessments and risk-based approaches and commits new, important tasks to IDPAs such as with regard to a EU-wide certification system. 122 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:117
IV. DATA PROTECTION: A COMPASS IN OUR DIGITAL FUTURE
The digital economy has led ultimately to the concentration of powers in the hands of technological platforms that are increasingly exclusive and influential at international level. Still, a new phase was opened up by the judgments handed down recently by the European Court of Justice.
In November 2014, the European Parliament approved a Resolution that called for a split between search engine functions and other services, whilst the Commission launched an infringement
proceeding on allegations of Google's abuse of its dominant position. These are important signals as they can put a real hold on the overwhelming power of platforms; however, Europe should not overlook its responsibilities, given its backwardness in building up a fully competitive digital market: this is actually the main reason for Europe's dependence on non-EU technologies.
Our Authority has been working for some time in order to do away with the informational asymmetry and opacity that feature in the activity of digital market giants.
The order issued vis-à-vis Google aims at making the Internet giant comply with the same rules as European companies have to abide by.
The verification protocol undersigned by Google – a first in Europe – envisages regular checks to be carried out at the company's headquarters in California (of which the first one took place last May) in order to monitor compliance with the order; at the same time, it is a means to carry on a constructive dialogue on issues that are kept as a rule strictly confidential by the US company.
A procedure for the appropriate exercise of the right to be forgotten has been established; it makes it necessary for search engines to act as counterparts of the IDPA in tackling complex issues that cannot be
solved by relying exclusively on technology. Over the past year, seventy-three percent of right to be forgotten requests were rejected in accordance with criteria and considerations the IDPA has usually endorsed when handling the complaints lodged following such rejections. 2016] VULNERABLE PERSON 123
We have been opening up a path to show that data protection can
truly become a key to keep abreast of the complexity of the digital world. From this standpoint, let me recall our opinion on the National Statistical Plan, which envisages the possibility to use Big Data for the first time, or the public consultation we launched recently on the ‘Internet of Things’, or the international survey addressing the multifarious world of web apps – especially those targeted to children or monitoring our health.
We are steeped in the digital society and get to know ourselves, the world and the others increasingly through technology – but we are not equipped with the required antibodies.
This is why a new ‘literacy' campaign is needed to foster active, informed behavior such as to enable us to handle our data with care. Accordingly, awareness-raising cannot but become one of the key tasks allotted to this Authority. All institutions are called upon to engage further in reducing and bridging the divide between the protection of citizens in the digital world and the long-cherished safeguards afforded to citizens in the physical world.
As was the case with the environmentalist culture, it is necessary to make people aware that every step taken in the information sphere (the info-sphere) must be taken responsibly; that each and every one of us can and must make the difference, today, in order to improve our future outlook and bring about the sustainable development of a networked planet. This is the challenge faced by States and this challenge requires a global response – sort of a Kyoto Protocol for data protection.
V. PRIVACY AND SECURITY: HARMONY RATHER THAN DISCORD
The digital dimension is bound to become the arena of international conflicts. The Datagate has shown that emergency-driven legislation focusing on the blanket collection of bulk communication data is both untenable in a democratic perspective and basically ineffective - whilst it also impacts the right to privacy to an unacceptable extent and
without any tangible benefits. The Datagate case has led the US towards the European model in balancing freedom and security – which was summed up most aptly by the 124 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:117
German Constitutional Court when it said that ‘the Constitution rules out
that freedom may be the price to be paid for absolute security.' Still, whilst the US are leaning increasingly towards this model, Europe is in danger of losing her identity in the realization of its fragility. It is as if Europe were facing with dismay the growing asymmetry between law and the unrelenting evolution of technologies as coupled with the demand for security coming from the public. This was signaled recently by the bills passed in Spain and France, as well as by the legislative process of Italy's anti-terrorism decree.
Indeed, several provisions were added to the original bill – which had been the occasion for a hearing of the IDPA before both the Chamber of Deputies and Italy's Judicial Council (CSM) – in the course of its enactment process. We had emphasized that those provisions would undermine the balance between privacy and security, whilst they actually underestimated the implications of specific technologies – for instance, with regard to remote interception technologies; this would severely hamper any oversight on the legitimate acquisition of the relevant data.
Scrapping the latter provisions was quite sensible, as were the amendments made to other provisions such as those that enabled preventive interceptions for any type of online crime and envisaged a substantial increase of traffic data retention periods independently of the type of crime.
The latter provisions were clearly in conflict with the stance taken by the European Court of Justice in its data retention judgment, where the pivotal role played by the right to privacy vis-à-vis security was
highlighted. Such a pivotal role was re-affirmed subsequently by the ‘right to be forgotten' judgment in the Google v. Costeja case, where the business interests of search engines were at stake.
Both judgments were handed down at the same time the US Supreme Court extended the safeguards against any restrictions on personal freedom to cellphone searches – and in so doing, the US Court drew a more than symbolic parallelism between physical body and electronic body. 2016] VULNERABLE PERSON 125
VI. STRATEGIC INTELLIGENCE AND MASS SURVEILLANCE
The three judgments recalled above share the view that data protection is the main precondition for freedom in the digital age. Data protection is seen as the right to the ‘integrity of one's personality' – an indispensable requirement to prevent democracy from giving in to the totalitarian concept of a ‘glass man' and the Net from becoming a law-free area where indifference to rights is globalized in the place of freedom.
One should fight against the ever-returning temptation to consider
civil liberties as a luxury one cannot afford when facing terrorist threats. It is from the pivotal role played by habeas data in our democracies that Europe should start in countering terrorism and all types of fundamentalism without giving up on her own identity and nature.
To do so, one should reconsider the privacy-to-security relation also in terms of how effective mass surveillance actually is – given that it proved far less helpful also as an investigational tool than ‘conventional'
(i.e., targeted and selective) surveillance. This was shown most clearly by
the expert committee set up by President Obama. The best way to defend our security is by protecting our data - including the infrastructures and systems those data are stored in – and preventing bulk data collection. This can limit the ‘attack area' for terrorism, which draws increasing force from the Net in shifting from cyber-espionage to the very factual violence of terrorist massacres.
Accordingly, effective terrorism prevention should select ‘sensitive' objectives sensibly as a function of the respective risk levels and turn data protection into a structural component of the fight against cyber-threats – which is what we highlighted also when heard by the Schengen Committee.
This is actually what we have said repeatedly, first and foremost with regard to intelligence (especially strategic intelligence) activities – whose scope of action is much broader and less ‘targeted' compared to conventional intelligence as pointed out by the Council of Europe, so that they are liable to turn into massive surveillance if they are not limited to truly ‘sensitive' objectives. 126 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:117
From this standpoint, special importance should be attached to the introduction of ad-hoc information procedures in cooperation with the Security Intelligence Department, which are meant to ensure that processing by intelligence agencies is fully compliant with the Data Protection Code. Reference can also be made in this connection to the opinions rendered this year on the security measures regulations adopted by such agencies.
However, similar risks of ‘data overload' may result, albeit to a different degree, if especially invasive tools are relied upon in taking evidence – such as by way of wiretapping records or phone traffic data – unless suitable security measures are in place to prevent misuse or the case-specific preconditions set out in the Code of criminal procedure are fulfilled so as to limit the use of such tools, which are intended for
specific rather than large-scale applications. In fact, any personal data that is acquired with the help of the above investigational tools (but also with the help of DNA sampling, since the relevant profiles are to be pooled into the national database) must be also protected after being collected in order to prevent all types of misuse. From this standpoint, let me stress how urgent it is to make sure that the measures ordered by IDPA especially with regard to the Ministry of the Interior and Public Prosecutor's Offices are implemented in order to achieve security of the data they process as part of their respective tasks.
This ‘security offensive' vis-à-vis public and private entities where personal data are collected includes the decision by the IDPA to lay down specific measures to be implemented by Internet Exchange Points (IXP) managers following ad-hoc inspections; this is aimed at preventing the routing of data traffic to providers from becoming a ‘safe haven' that is accordingly liable to all sorts of misuse – which would produce devastating effects given the facilities at issue.
Indeed, the (recent) experience in some EU countries shows that this type of misuse does happen also in a democratic system – see the data tapping case in Germany, at the Neutral Exchange Point in Frankfurt, 2015. 2016] VULNERABLE PERSON 127
VII. TOWARDS TRULY DEMOCRATIC TRANSPARENCY
Legislative decree No. 33 of 14 March 2013 contributed significantly to doing away with secrecy as the main tool to exercise power and it also brought about changes in the relationship between individuals and authorities – from one based on unchallenged authoritarianism and bureaucracy to one grounded in ‘controllable'
equality of arms and participation. Still, several criticalities were highlighted in the course of its implementation, which have to do basically with the one-size-fits-all disclosure requirements.
Indeed, those requirements apply in the same manner to markedly different situations and organizations and do not take due account of the corruption exposure risk of the individual entities, of their scope of activity and/or the public funds that are allocated to such entities and for whose management they are accountable.
Thus, those regulations introduce identical provisions for highly divergent situations and risk undermining the overall balance of the relevant legal framework. The effects they produce are largely unrelated to the objective that ultimately underlies this legislation, i.e. ‘enabling public oversight on the discharge of institutional tasks and the use of public resources' as per Section 1(1) of legislative decree No. 33/2013.
The – often significant – limitations on privacy resulting from the above disclosure requirements may prove to be unreasonable under certain circumstances so that they may have to be reconsidered.
In fact, transparency as a tool promoting participation,
accountability and legitimacy must be protected against any distortive or ‘muddling' effects that are tangible risks if it turns into a boundless crave
for disclosure. There is a real danger that truly significant information gets hidden by useless scraps of information, so that the public oversight on
the exercise of power and authority is hampered rather than facilitated. The muddling effect is a somewhat implied risk in the approach adopted by the Italian lawmaker: unlike the US FOIA (Freedom of 128 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:117
Information Act), the Italian legislation refers to undifferentiated
dissemination on the Net as the sole mechanism to ensure disclosure. Accordingly, one should reconsider not transparency per se, which is a fundamental benchmark of public administration, but the mechanisms to implement such transparency, partly following the model devised in the FOIA - which empowers anyone, on request, to access public records; further, one should re-define both the scope and the substance of disclosure requirements as a function of their being truly instrumental to public oversight on the exercise of power.
Not always is publication on the Net the best way to inform, ensure transparency and thus achieve a ‘democratic' process: this is so because there is the risk that the information may be altered, tampered with, de-contextualized and reused for different purposes so that the requirement to provide truthful information would be jeopardized along with any meaningful oversight – whilst the data would never be ‘forgotten' once it ceases to be useful.
These are the concerns we voiced to the Government also by way of an analysis conducted jointly with the ANAC (National Anti-
Corruption Authority) in order to highlight possible avenues of reform. Thus, the real challenge consists in ensuring democratic rather than demagogic transparency, which can be beneficial to citizens and does not jeopardize their personal sphere.
VIII. ONLINE JUDGMENTS AND TRANSPARENT JUSTICE
The same synergy between privacy and transparency should be at work in connection with the online posting of judgments. Publishing highly valuable data on the web such as those that can be found in a judgment and the underlying principles is unquestionably more
‘democratic' as it can make available an important set of information
potentially to all citizens. However, this ease of access is both an extraordinary resource for individuals and institutions and – paradoxically – the greatest source of the risks arising from online publications, as they can be indexed, reproduced 2016] VULNERABLE PERSON 129
out of their context and tampered with. In short, this type of publication
may in no way be equated to paper-based publication. This is why we proposed that judgments – given the current legislative framework – should not be indexed by all-purpose search engines in order to reconcile publicity of judicial proceedings and their final outcomes with privacy of the individuals involved in such proceedings for whatever reason.
In doing so, we attempted to interpret legislation that had been enacted 12 years ago in a forward-looking perspective so as to take account of the ‘constitutional' framework in Europe and the differences
between paper-based and electronic publications. This solution is actually similar to the one adopted by Parliament – partly following our suggestion – in connection with parliamentary records; it is aimed at reconciling personal dignity, publicity of proceedings and integrity of parliamentary records.
As well as de-indexing the full text of judgments, one could more reasonably foster the dissemination of the juridical knowledge contained in case-law by publicizing judgments to the greatest possible degree
whilst blanking any names they contain. Implementing this solution would appear to be all the more necessary in the face of the stepwise computerization of judicial proceedings we are witnessing. In this connection, the safeguards the IDPA has suggested to Governments over the years when giving opinions on several instruments regulating the use of IT in judicial proceedings have allowed setting the highest possible standards in balancing transparency and efficiency of justice, on the one hand, and the protection of personal data on the other hand.
IX. PRIVACY, PRESS AND JUDICIAL PROCEEDINGS
Equal importance should be attached to the balancing of privacy and freedom of the press with a view to enhancing the quality of our democracies. This is an area where there was no dearth of issues to be tackled in the past year as well. 130 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:117
Reference can be made, in particular, to the clarification that journalists must behave fairly in discharging their tasks – especially by refraining from subterfuge or tricks, and even more from impersonation
(which was the case in a complaint lodged with IDPA). This stance was shared by the judicial authority dealing with the
appeal proceedings. Indeed, investigative journalism does play a key role and should be fostered as an extraordinarily powerful driver of democracy; however, it may not rely on practices that are considered to be criminal offences
per se for the sake of getting at confidential or secret information. A similar call on accountability was made repeatedly with regard to trial journalism and the need for complying with the principle whereby only material information should be disclosed – a principle that has been often violated (even in breach of the rules on publication of investigative records set forth in the criminal procedure code) because long excerpts or the full version of such records have been disclosed including transcripts of examinations or interceptions. This was instrumental to appeasing public curiosity but did not mirror any real need for transparency vis-à- vis the given judicial proceedings.
And this has been detrimental, at times irreparably so, to third parties, perhaps children or victims of the offences: their lives have been
exposed and posted on the Net, perhaps forever. This is why we issued blocking of processing orders to prevent additional violations in specific cases related to trial journalism – so as to protect both innocent bystanders and suspects whose lives and relations had been probed into at great length without whatever links to evidentiary requirements.
We also drew the government's attention to the need for reconsidering the balance between investigational demands, freedom of the press and privacy in the face of the increasing mediatization of justice.
Indeed, the fact that one is involved in a judicial proceeding on whatever ground may not justify, per se, a pillorying exercise in which sensationalism is passed off as freedom of the press.
Thus, we call for Parliament and the government to take up this issue by reconciling fairness in seeking and imparting information with 2016] VULNERABLE PERSON 131
confidentiality of investigations and ensuring the due proportionality between privacy and investigational tools – a principle that was recently reaffirmed by the EU Court of Justice as well.
X. RIGHT TO THE INTERNET AND RIGHTS ON THE INTERNET
The Network was the focus of growing attention also by Parliament especially during the past year. We witnessed several initiatives aimed at setting forth basic safeguards for the dignity of individuals in the info-sphere: from the draft Declaration for the Rights on the Internet to the constitutional bills on access, from the legislation
on “cyber-bullying” to enhanced safeguards for children. The Net is a dimension of our lives where everyone's personality
develops – to quote Article 2 of Italy's Constitution. If this is the case, one can argue that the Net has turned into a legally protected asset deserving protection especially to prevent its subjection to market rules – that is, to avoid leaving the worldwide protection of fundamental rights to the ‘private law' arising out of contractual terms. Thus, today's challenge does not consist in introducing legal constraints into an area that would be capable to organize itself if it were left to individual discretionary decisions of an ethical nature: in fact, it consists in defending the freedom of this boundless public space determinedly.
Along with its extraordinary power to foster inclusive processes and democratic, pluralistic participation, the Web has also shown – in line with the duality that is typical of all technologies – that it can magnify discriminatory, violent or harassing activities and produce disruptive effects. These effects often impact the weakest or those that are regarded
– and depicted – as different. The gamut ranges from grooming to inducement to hatred; from rape – committed offline and then displayed online, which magnifies its detrimental effects – to the ‘voluntary enslavement' of child prostitution up to cyber-bullying in all its versions.
In short, it is not only everyone's right to the Internet, but everyone's rights on the Internet that have to be guaranteed. 132 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:117
This applies in the first place to children: they are the main victims of misuse, because they are not equipped to understand to what extent they can expose their (innermost) lives to the world and what risks
they are running in doing so.
Paradoxically, the Web is where children's fragility is most evident – caught as they are in the gap between a delusory feeling of autonomy and their law-abiding conscience, between the experience of freedom and the need to act responsibly.
The Web is also where children commit violations on other
children under the assumption of remaining anonymous. This is perhaps the most tragic feature in the violent use of the Web: that is, victim and offender share the same fragility and are unaware to the same extent of the very tangible and ‘real' impact produced by every single step they take in the digital world. The only antidote to this can come from the fully-informed exercise of one's right to the protection of personal data and from a new code of ethics for the digital society.
This is what our Authority is aiming at day after day so that the Net's extraordinary ‘generative power' is used to foster everybody's rights rather than to violate them. Review of AUTUMN CRUSH by Andrew Anselmi
JOSEPH A. SENA, JR., ESQ., PRESIDENT, NIABA
A new novel has been added to the pantheon of notable Italian literary words. The first novel by Andrew Anselmi, a New Jersey attorney, called the “Autumn Crush” is a story of immigration and immigrants coming to the U.S. On one level it is a story of the Benedetto family
(named changed in America to “Bennett”), which family immigrated from Frosinone, province of Lazio, Italy, to the U.S. The novel discusses the angst of immigrants as well as their simultaneous joy and anguish. That is, their feelings include having to leave one’s birth country to come to
America, and the joy to come to a country to allow to seek their fortune and escape their destiny. However, the novel exists and operates on multiple levels. That is, it discusses the relationship between the immigrants and the following generations, the progress of the generations as they seek the American dream and American prosperity, the clash between generations, the clash between American culture and traditional Italian culture, and continuing as well as on-going discrimination against Italian-Americans in the United States.
Because the author is an attorney, it should not surprise anyone that a good part of the novel deals with a criminal case in which case the main character, Guy Bennett, is accused of murdering his business partner, Vito Petrozzini, and his wife Lena. On that level ,the novel deals with Court strategies, legal ethics, legal mechanisms, and American law.
The beauty of “Autumn Crush” is the powerful accuracy with which it describes the Italian-American immigrants, their families, as well as the Italian-American experience. The discussion of family, food, culture, and generations, should bring a tear to the eyes of every Italian- American. The novel is powerful, rich, fast-paced, and is a tribute to the author’s Italian roots. Moreover, this important novel should be read by every Italian-American who thinks our immigrant past, our present status in the United States, as well as the American dream.
133
Commil v. Cisco: The Future of Induced Infringement in Patent Law
ANGÉLIQUE MCCALL*
I. INTRODUCTION
On May 26, 2015 the Supreme Court decided Commil USA, LLC v. Cisco Systems, Inc. Commil USA, LLC, owned a patent, number 6,430,395, for a method of implementing short-range wireless networks.1 The invention is used, for example, in a wireless system like a mobile device such as a phone and laptop computers.2 The device communicates with fixed “base stations” according to standardized procedures that govern how data exchanged between devices is formatted, ordered, maintained, and 3 transmitted in a procedure referred to as “protocols.” Effective wireless communication requires that both the transmitting and receiving devices follow the same protocol.4 The court describes the relationship between the wireless communication and the patent as:
The ′395 patent relates to a method of providing faster and more reliable handoffs of mobile devices from one base station to another as a mobile device moves throughout a network area. The ′395 patent teaches that the communication protocol is divided based on time sensitivity. The portions of the protocol requiring accurate time synchronization—“real-time capabilities”— are performed at the base station. This part of the protocol is called the “low-level protocol.” Other parts of the protocol that are not time-sensitive comprise the “high-level protocol,” which is _____ *For JVM & WBM. Thank you for your support and guidance always. 1. Commil USA, LLC v. Cisco Sys.,Inc., 720 F.3d 1361, 1364 (Fed. Cir. 2013) vacated by 135 S. Ct. 1920 (2015). 2. Id. at 1364. 3. Id. 4. Id.
135 136 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:135
performed on another device called a switch. The base station and switch cooperate to handle a connection with a mobile unit. To implement the full communications protocol, the base station runs an instance of the low-level protocol for the connection and the switch runs a corresponding instance of the high-level 5 protocol.
Commil claimed that Cisco Systems, Inc., a business that makes and sell wireless networking equipment, directly infringed Commil’s patent with its networking equipment. In addition, they claimed Cisco induced others to infringe the patent by selling the infringing equipment for the other’s
use. The issues of direct and indirect infringement are discussed with an emphasis here on the indirect (induced) infringement and using good-
faith as a defense to it. The court held that Cisco did directly infringe and
therefore the question becomes if Commil’s cause of action involves induced infringement, can Cisco argue that it believed in good faith that the patent was invalid as a defense? The Supreme Court held that a
defendant’s belief regarding patent validity is not a defense to an induced infringement claim. Justice Scalia wrote a dissenting opinion, with whom Chief Justice Roberts joined.
II. BRIEF EXPLANATION OF PATENT LAW AND INDUCED INFRINGEMENT
This case is about induced infringement and good faith in patent law and whether a defendant's belief regarding patent validity is a defense to a claim of induced infringement. To understand patent infringement, one
must understand the rights behind a patent. Patent protection grants the inventor the right to exclude others
_____ 5. Id.at 1364-65. 2016] COMMIL V. CISCO 137
from making, using, selling, offering to sell, and importing the invention.6 It is important to note that a patent does not grant the right to practice the invention.7 If an invention is an improvement on a patented invention, the inventor cannot make, use, sell, offer to sell, or import the invention without the permission of the patent owner.8 For example, the inventor of the eraser attached to the already patented basic pencil cannot make, use, sell, offer to sell, or import the pencil with the attached eraser without permission (e.g., 9 license) from the pencil’s patent owner and vice versa. A person “infringes” a patent if they practice each element of a patent claim with respect to one of these acts.10 Additionally, infringement and liability can arise if one actively encourages others to infringe a patent, or supplies or imports components of a patented invention.11 There are two main types of patent infringement relevant to this case, direct and 12 indirect. Direct infringement is the act of making, using, selling, or offering to sell a patented invention, or importing into the United States a product covered by a claim of a patent without the permission of the patent owner.13 A patent may also be considered infringed if items are imported into the United States that are made by a patented method, unless the item is materially changed by subsequent processes or becomes a trivial and nonessential component of another product.14 In direct infringement, the accused infringer practices each element of the patent owner’s patent
_____ 6. Lisa Dolak, Technology Transfer Presentation, Technology IP: An Overview (Sept. 10, 2015). 7. Id. 8. Id. 9. Id. 10. About Patent Infringement?, UNITED STATES PATENT AND TRADEMARK OFFICE, http://www.uspto.gov/patents-maintaining-patent/patent-litigation/about- patent-infringement (last visited February 10, 2016). 11. Id. 12. Different Types of Patent Infringement, GENERAL PATENT CORPORATION, http://www.generalpatent.com/different-types-patent-infringement-0 (last visited February 10, 2016). 13. Id. 14. About Patent Infringement, supra note 10. 138 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:135
15 claim. Indirect patent infringement includes contributory infringement or inducement to infringe a patent.16 The patent law states that "whoever actively induces infringement of a patent shall be liable as an infringer" (35 U.S.C. § 271(b)).17 Therefore, a company does not have to directly infringe a patent to be sued for patent infringement.18 Contributory infringement is when one offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article of commerce suitable for substantial non-infringing use (35 U.S.C. § 19 271(c)). To win a case against a contributory infringer the plaintiff must prove three things: (1) the defendant sold, offered to sell, or imported a component of a patent apparatus, or a material or apparatus for use in practicing a patented process; (2) the defendant had knowledge of the patent; and (3) the component in question has no substantial non-infringing use and 20 constitutes a significant part of the patented invention.
Induced infringement enables the direct infringer to practice the patented intention.21 One example of how this can occur is when the indirect infringer helps the direct infringer to assemble the patented product, provides instructions that explain how to make the patented invention, prepares instructions for consumer use, or licenses plans or a process which enable the licensee to produce the patented product or 22 process. _____ 15. Michael Kasdan, Practical Law Company-Patent Infringement Claims and Defenses, PRACTICAL LAW COMPANY, http://www.arelaw.com/downloads/ARElaw_PracticeNote101511.pdf. 16. Types of Patents, supra note 12. 17. Id. 18. Id. 19. Id. 20. Types of Patents, supra note 12. 21. Id. 22. Id. 2016] COMMIL V. CISCO 139
An accused indirect infringer does not practice each element of the patent claim but induces another party to engage in direct infringement.23 However, the infringer can only be liable for indirect infringement if another party is a direct infringer.24 For a patent owner to win an inducement suit they must establish two prongs. First, that the alleged infringer both engaged in the conduct of inducing or encouraging a third party to take infringing action and second, that they had knowledge that the induced acts comprise 25 patent infringement. (This requirement from Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011) was reaffirmed by the decision in Commil.) As to the second prong, the Commil Court rejected the defense of a good-faith belief in the invalidity 26 of an asserted patent.
III. PREVIOUS CASES & DISTRICT COURT PROCEEDINGS
Commil sued Cisco in the United States District Court for the Eastern District of Texas in 2007.27 In that suit, Commil alleged that Cisco had infringed Commil’s patent by making and using Commil’s networking equipment and that Cisco had induced others to infringe the patent by selling the infringing equipment for them to use, violating 28 Commil’s exclusive patent rights. The jury returned a verdict that Commil’s patent was valid and that Cisco had directly infringed (direct infringement) when it copied Commil’s patented technology. As a result, Commil was awarded $3.7 million in damages.29 For the claim of induced infringement, the jury found Cisco not liable when it sold the copied technology to others. With this verdict, Commil moved for a new trial on the induced infringement and damages. The District Court granted the motion because Cisco made some improper statements about religious preferences that prejudiced the jury
_____ 23. Kasdan, supra note 15. 24. Id. 25. Global-Tech., 131 S.Ct. at 1365. 26. Commil USA, LLC, 720 F.3d at 1364. 27. Id. 28. Id. 29. Id. 140 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:135
during this first trial.30 The multiple comments made by counsel for Cisco referenced one of Commil’s co-owners Jewish heritage which the Judge thought employed an “us v. them” mentality of “we are Christians 31 and they are Jewish.” Cisco requested a re-examination of the validity of its patent from the United States Patent and Trademark Office (USPTO) about a month before the second trial.32 The Office confirmed the validity of Commil’s 33 patent. In the second trial in the District Court on April 5, 2011 for the induced infringement (indirect infringement), Cisco argued that it had a good-faith belief that Commil’s patent was invalid and tried to introduce evidence to support that belief as a defense to the claim of inducement.34 The District Court ruled this evidence of good-faith belief in the invalidity as inadmissible. Although the reasoning is not entirely clear for why the District Court ruled this way since it did not provide an opinion, it appeared to base its decision on the fact that Supreme Court precedent suggests that this kind of evidence is relevant when it relates to good-faith belief of non- 35 infringement, but has said nothing with respect to invalidity.
The District Court instructed the jury that it could find inducement if “Cisco actually intended to cause the acts that constitute direct infringement and that Cisco knew or should have known that its actions would induce actual infringement.”36 After hearing these instructions, the jury returned a verdict for Commil on induced 37 infringement and awarded $63.7 million in damages. After the verdict and before judgment of the second District Court _____ 30. Commil, 720 F.3d at 1364.; Ben James, Cisco Atty’s Religion Remarks Win Commil A New Trial, LAW360, http://www.law360.com/articles/218683/cisco-atty-s-religion- remarks-win-commil-a-new-trial (last visited March 15, 2016). 31. Id. 32. Commil, 720 F.3d at 1364. 33. Commil USA, LLC v. Cisco Systems 135 S.Ct. 1920, 1924 (2015). 34. Id. 35. Commil, 720 F.3d at 1369.; The Supreme Court acknowledged that it had not previously addressed the issue of whether a good-faith belief of invalidity may negate the requisite intent for induced infringement but with this case, the Supreme Court held that an induced infringement may not be negated by a good faith belief of invalidity. 36. Id. at 1366. 37. Id. 2016] COMMIL V. CISCO 141
trial in 2011, the Supreme Court issued its decision in Global-Tech Appliances, Inc. v. SEB S. A., where it held that, in an action for induced infringement, it is necessary for the plaintiff to show that the alleged inducer knew of the patent in question and knew the induced acts were infringing.38 Using the decision in Global-Tech, Cisco tried again to persuade the Court that the jury instruction was incorrect because it did not state knowledge as 39 the governing standard for inducement liability. The
District Court denied Cisco’s motion and entered judgment in Commil’s 40 favor. Cisco next appealed to the United States Court of Appeals for the Federal Circuit.41 The Court of Appeals affirmed in part, vacated in part, and remanded for further proceedings.42 The court concluded it was an error for the District Court to have instructed the jury that Cisco could be liable for induced infringement if it “knew or should have known” that its customers infringed.43 The panel held that “induced infringement ‘requires knowledge that the induced acts constitute patent infringement.”44 By stating that Cisco could be found liable if it “knew or should have known that its actions would induce actual infringement,” the Court of Appeals explained, the District Court had allowed “the jury to find [Cisco] liable 45 based on mere negligence where knowledge is required.”
IV. ISSUE FOR THE SUPREME COURT
The issue for the Supreme Court was the second holding of the Court of Appeals, namely Cisco’s contention that the trial court committed further error in excluding Cisco’s evidence that it had a good-faith belief that Commil’s patent was invalid.46 In the Court of Appeals opinion, it said that it is “axiomatic that one cannot infringe an invalid patent,” and then _____ 38. 131 S. Ct. 2060, 2062 (2011). 39. Commil, 720 F.3d at 1367. 40. Id. 41. Id. 42. Id. 43. Id. 44. Global-Tech, 563 U.S. at 2068. 45. Commil, 720 F.3d at 1366. 46. Id. 142 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:135
reasoned that “evidence of an accused inducer’s good-faith belief of invalidity may negate the requisite intent for induced infringement.”47 The court saw “no principled distinction between a good-faith belief of invalidity and a good-faith belief of non-infringement for the purpose of whether a defendant possessed the specific intent to induce infringement of a patent.” Both parties filed petitions for rehearing en banc, which were denied.
1. SUPREME COURT MAJORITY OPINION ON INDUCED INFRINGEMENT CLAIM
In the Court’s opinion, there were four arguments for deciding whether defendant’s good-faith belief in invalidity can serve as a defense to induced infringement.48 However, before discussing its opinion, the court reaffirmed the holding of Global-Tech that induced infringement requires that the defendant both knew of the patent and knew that “the 49 induced acts constitute patent infringement.” This reaffirmation ended Commil’s argument that Global-Tech only required knowledge of the patent for purposes of the “knowledge” requirement for induced 50 infringement. Based on the four arguments, the Court rejected a defense of good-faith against induced infringement.51 These arguments were (1) infringement and validity are distinct issues; (2) permitting such a defense would undermine the statutory presumption of patent validity; (3) invalidity is not a defense to infringement, it is instead a defense to liability for infringement; and (4) practical reasons support not creating 52
this particular defense. The Court based the first argument that invalidity and infringement are distinct on the fact that two issues are discussed in separate sections of
_____ 47. Id. 48. Id. 49. Global-Tech, 563 U.S. at 2068. 50. Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1925 (2015). 51. Id. 52. Id. 2016] COMMIL V. CISCO 143
the Patent Act.53 Non-infringement and invalidity are listed as two separate defenses which the defendant is free to raise either one or both of them.54 The court said that if it were to permit a defense in a belief of 55 invalidity “it would conflate the issues of infringement and invalidity.” The second argument rests on the Patent Act’s assumption that a patent is “presumed valid” which takes away any need for a plaintiff to prove his patent is valid to bring a claim.56 The court held that if the belief of invalidity was allowed as a defense, the presumption would be drastically lessened since a defendant could win if he proved that he reasonably believed the patent was invalid, and that is not what Congress 57 intended when it set the high bar of this presumption. In the third point, the Court reiterated that invalidity is an affirmative defense against liability for the enforcement of a patent against otherwise infringing conduct, but it is not a defense to infringement.58 Therefore, the Court stated, a belief of invalidity cannot negate the scienter required for induced infringement because it is a 59 different issue than validity. The last argument describes the practical reasons for not allowing a good faith belief as a defense against infringement.60 For example, a defendant who believes a patent is invalid has other options to obtain a ruling of invalidity, like filing a declaratory judgement action or seeking an inter partes review (an IPR is a procedure for challenging the validity of a US patent before the USPTO).61 Furthermore, if this defense were permitted it could “render litigation more burdensome for everyone involved,” would offer each accused infringer “an incentive to put forth a theory of invalidity,” and would assign juries “to the difficult task of
_____ 53. Id. at 1930. 54. Id. 55. Id. 56. Id. 57. Id. 58. Id. at 1931. 59. Id. 60. Id. at 1932. 61. Id. 144 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:135
separating the defendant’s belief regarding validity from the actual issue 62 of validity.”
2. SUPREME COURT DISSENTING OPINION BY JUSTICE SCALIA WITH WHOM CHIEF JUSTICE ROBERTS JOINS
In Justice Scalia’s dissent in Commil, he argued that good-faith belief in a patent’s invalidity should be recognized as a defense.63 Scalia states that only valid patents can be infringed and “to talk of infringing an invalid patent is to talk nonsense” because, as discussed in Global Tech, induced infringement “requires knowledge that the induced acts
constitute patent infringement.” Scalia reasoned that since only valid patents can be infringed, anyone with a good-faith belief in a patent’s invalidity necessarily believes the patent cannot be infringed; further it is impossible for anyone who believes that a patent cannot be infringed to induce actions that he 64
knows will infringe it. Justice Scalia argued that of the four arguments in the majority opinion in support of removing good-faith as a defense, the "weakest argument" was the fourth one that there exist "practical reasons" for not creating a defense to infringement based on a good-faith belief of invalidity.65 In his first reason, Scalia reasoned that the Supreme Court's duty is to interpret the Patent Act rather than create common law defenses to a statutory cause of action, and the Patent Act requires knowledge of infringement to which a good-faith belief of invalidity would be a defense.66 In his second reason, Scalia argued that the Supreme Court's ruling increases the "in terrorem power of patent trolls" as specified in the
_____ 62. Id. 63. Id. at 1920. 64. Commil, 135 S. Ct. at 1931. 65. Id. 66. Richard Gilly, Commil USA, LLC v. Cisco Systems, Inc. Further Clarifies the Requisite Intent for Induced Infringement after Global-Tech, AKERMAN.COM (June 3, 2015), https://www.akerman.com/documents/res.asp?id=2307. 2016] COMMIL V. CISCO 145
majority’s opinion where it highlighted the various tools at the district court's and accused infringer's disposal to combat frivolous infringement 67 lawsuits.
V. FUTURE IMPACTS
Invalidity remains a defense to the liability for patent infringement but an accused infringer cannot use invalidity or a good- faith belief of invalidity to negate its intent to induce infringement.68 Furthermore, that mere knowledge of the patent is insufficient to establish intent for induced infringement.69 For future litigation, the Supreme Court held that satisfying the intent requirement for induced infringement requires proof that the accused infringer knew of the patent 70 and knew that the induced acts constitute patent infringement. For patent holders, it is difficult to prove that the accused infringer actually knew, or was willfully blind to, the existence of the patent at issue and that the acts were infringing.71 Therefore, the best strategy for patent holder’s, following the ruling in Commil, is sending the accused infringer a detailed letter with a copy of the asserted patent, a description of what the patent covers, and an analysis of how the accused product infringes.72 Although some risks are involved by sending such a letter, like a declaratory judgement action or the potential of giving premature insight into its case, it may still be a challenge to show that the accused infringer had the requisite knowledge, where the infringer has not copied.73 Additionally, some district courts have held that the knowledge that an accused infringer gains from the
complaint cannot alone satisfy the _____ 67. Id. 68. Id. 69. Id. 70. Id. 71. Jonathan Choa, Commil v. Cisco Systems: The End of Induced Infringement? POTTERANDERSON.COM, (September 3, 2015), http://www.potteranderson.com/newsroom- publications- Commil_v_Cisco_Systems_The_End_of_Induced_Infringement_Choa_Sep_2015.html (last visited February 10, 2016). 72. Id. 73. Id. 146 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:135
requirement, and therefore the patent holder should not rely on the 74 complaint to prove knowledge. Commil’s elimination of a good-faith belief in invalidity as a defense to induced infringement benefited accused infringers.75 After Commil, one strong defensive strategy is to obtain a non-infringement opinion (a legal opinion concerning whether a specific product infringes a given patent).76 Once a patent holder is given this opinion, it is challenging for them to sustain a claim for induced infringement if the opinion was prepared in good faith, and all pertinent information was 77 shared with the attorneys who prepared the opinion. 78 But Commil may have made this defense unnecessary. The Supreme Court, while characterizing Commil’s failed argument, said, “In
other words, even if the defendant reads the patent’s claims differently from the plaintiff, and that reading is reasonable, he would still be liable because he knew the acts might infringe. Global-Tech requires more.”79 Since nearly all patent cases involve disputes over claim construction where the accused infringer typically does not infringe under how it construes the claims, the likelihood of district courts and the Federal Circuit finding induced infringement outside of outrageous or preposterous claim construction positions (or direct copying) is greatly reduced if this view were to be adopted.80 It can be argued that if the accused infringer denies the infringement, they should not be liable for induced infringement if they satisfy Federal Rule of Civil Procedure 11 (Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions).81 With this decision, future defendants are more likely to move to dismiss induced infringement claims but it is unknown 82 whether courts will continue to restrict these claims.
_____ 74. Id. 75. Id. 76. CHOA, supra note 71. 77. Id. 78. Id. 79. Commil, 135 S. Ct. at 1928. 80. CHOA, supra note 71. 81. Id. 82. Id
Williams - Yulee v. The Florida Bar: Judicial Elections as the Exception
ANDREW LESSIG
I. INTRODUCTION
On April 19, 2015, the United States Supreme Court handed down their decision in Williams-Yulee v. The Florida Bar, upholding The Florida Bar rule barring candidates for judicial offices from directly soliciting campaign donations. The Supreme Court's 5-4 decision saw Chief Justice John Roberts join Justices Sotomayor, Kagan, Ginsburg, and Breyer in rebuking the appellants claim that the restriction violated her First Amendment right to Freedom of Speech. This decision on face value bucks the recent trend of the Court of “invalidating and modifying overreaching 1 campaign finance regulations by citing infringement of protected speech.”
The case will likely have little to no impact on this general direction of the court, exemplified in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), and McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2014). The ruling in Williams-Yulee, while apparently in favor of certain limits on a certain type of campaign donations, is so narrowly applicable to the situation of the case at issue, and so narrowly held at 5-4, that it practically illuminates the outer limits on campaign finance and political speech acceptable by this court as being only slightly beyond none at all.
II. FACTUAL BACKGROUND
Lanell Williams-Yulee [Yulee] was admitted to the Florida Bar in 1991.2 The Constitution of Florida gives the Supreme Court of Florida 3 sole authority to regulate the practice of law in the state. The Court _____ 1. Dennis Polio, McCutcheon v. Federal Election Commission: Invalidating the FEC's Aggregate Campaign Contribution Restrictions, 23 DIGEST 82 (2015). 2. Williams-Yulee v. Fla. Bar, 135 S.Ct. 1656, 1663 (2015). 3. FLA. CONST.. art. 5, § 15.
147 148 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:147
erected the Florida Bar to be the public agency responsible for investigative and prosecutorial regulation of the state's legal and 4 paralegal professionals. In 2009 Yulee began a campaign to be an elected judge for the Florida county containing the City of Tampa.5 Early in the course of her campaign, Yulee signed and mailed a letter to voters throughout the county to announce her candidacy and solicit donations.6 Yulee’s campaign ended with her primary defeat, and the letter became fodder for a complaint to the Florida Bar against her.7 Yulee was required by the Bar rules8 to comply with the Florida Code of Judicial Conduct with regard to judicial campaigns, which in turn, barred the personal solicitation of campaign funds in judicial elections.9 Yulee agreed with the Bar’s indictment in that she had personally solicited donations with her signed fundraising letter, but argued her speech 10 was protected by the First Amendment.
III. PROCEDURAL HISTORY
As Yulee controverted the bar complaint made against her, the Florida Supreme Court directed a hearing being held by an administrative law judge who recommended finding Yulee guilty despite her arguments.11 The Supreme Court of Florida reviewed the hearings recommended disposition and agreed that Yulee was guilty of professional misconduct.12 The Florida high court directed that Yulee be publicly reprimanded for violating the bar rules by personally soliciting campaign contributions as a candidate for County Judge.
_____ 4. Frequently Asked Questions About the Florida Bar, THE FLORIDA BAR (Revised Aug. 12, 2015), http://www.floridabar.org/tfb/flabarwe.nsf/f6301f4d554d40a385256a4f006e6566/47fc0 a8f415a11d285256b2f006ccb83?OpenDocument. 5. Williams-Yulee, 135 S.Ct. at 1663. 6. Id. 7. Id. 8. FLA. BAR REG. R. 4-8.2(b). 9. FLA. CODE OF JUDICIAL CONDUCT CANON 7(C)(1). 10. Williams-Yulee, 135 S.Ct, at 1664. 11. Id. 12. Fla. Bar v. Williams-Yulee, 138 So.3d 379, 381 (Fla. 2014). 2016] WILLIAMS-YULEE V. THE FLORIDA BAR 149
The Florida Supreme Court explained itself first by quoting an earlier decision of its own to establish the standard for constitutional restrictions of free speech, “Restrictions on first amendment rights must be supported by a compelling, governmental interest and must be narrowly drawn to insure that there is no more infringement than is necessary.”13 The Florida Supreme Court continued to rely on it’s own precedents in determining the state's interests in this case to be compelling, “As this Court has previously stated, Florida has ‘a compelling state interest in preserving the integrity of [its] judiciary and maintaining the public's confidence in an impartial judiciary.’”14 To find whether or not the restriction on donation solicitation was sufficiently narrow, the Court looked towards the United States Supreme Court, “The United States
Supreme Court has stated that a government regulation is narrowly tailored ‘if it targets and eliminates no more than the exact source of the ‘evil’ it 15 seeks to remedy.’” The Court held that the restriction on solicitation was sufficiently narrow and promoted the State of Florida’s compelling interests in preserving the integrity of the judges which in turn gives the public confidence in the impartiality of the judiciary as a whole. As such, the
Supreme Court of Florida rejected Yulee’s argument and held the rules 16 she had violated, and her penalty as a result, to be Constitutional. Yulee petitioned the United States Supreme Court for a writ of 17 certiorari which was granted.
IV.) ISSUE
On appeal from the Florida Supreme Court, Justice Roberts’ opinion did not seek to determine whether Yulee’s right to speech was
_____ 13. Firestone v. News-Press Publ'g Co., 538 So.2d 457, 459 (Fla. 1989). 14. Fla. Bar, 138 So.3d at 384 (citing, In re Kinsey, 842 So.2d 77, 87 (Fla. 2003)). 15. Fla. Bar, 138 So.3d, at 385, (citing, Frisby v. Schultz, 487 U.S. 474, 485 (1988)). 16. Fla. Bar, 138 So.3d, at 387. 17. Williams-Yulee v. Fla. Bar, 135 S.Ct. 44 (2014). 150 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:147
restricted, as this was stipulated by the parties.18 Instead, the question posed by Roberts was defined as a disagreement on “the level of scrutiny 19 that should govern [...] review.”
V. HOLDING OF THE COURT
1. ROBERT’S PLURALITY ON THE APPROPRIATE LEVEL OF SCRUTINY
Roberts began by immediately looking at past precedents of the Supreme Court which upheld limitations on speech with regard to limits on the solicitation activities of charities.20 “We have applied exacting scrutiny to laws restricting the solicitation of contributions to charity, upholding the speech limitations only if they are narrowly tailored to serve a compelling interest.”21 Roberts colored political solicitation and solicitation for charities as both being “noncommercial solicitation [which] ‘is characteristically intertwined with informative and perhaps persuasive speech.’”22 Roberts further reasoned that the application of a lower standard of scrutiny would endanger “‘the exercise of rights so 23 vital to the maintenance of democratic institutions.’” In greater depth, Justice Roberts continued to explain the Court's preference for strict scrutiny. The opinion notes that political speech has always commanded the greatest protections available through the First Amendment24 and that in the only previous Supreme Court case regarding judicial elections, Republican Party of Minn. v. White, the application of strict scrutiny was assumed by all parties and members of
_____ 18. Williams-Yulee, 135 S.Ct. at 1664. (Chief Justice Roberts delivered the opinion of the Court, a plurality opinion. The ultimate holding is still binding when one also takes account of the Concurring opinions of Justices Breyer and Ginsburg, while not all reasoning leading to the conclusion is similarly supported.). 19. Id. 20. Id. at 1664-65. 21. Id. (citing, Riley v. Nat'l Fed'n of Blind, 487 U.S. 781 (1988)). 22. Id. at 1665. (citing, Schaumburg v. Citizens for Better Environment, 444 U. S. 620, 632 (1980)). 23. Williams-Yulee, 135 S.Ct. at 1665. (citing, Schneider v. State (Town of Irvington), 308 U. S. 147, 161 (1939)). 24. Id. (citing, Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223, (1989)). 2016] WILLIAMS-YULEE V. THE FLORIDA BAR 151
25 the Court. The question of the appropriate level of scrutiny garnered considerable debate prior to the decision, many amici briefs supporting the holding of the Florida Supreme Court contended that strict scrutiny was the inappropriate standard. The American Bar Association was the most prominent organization to contend that, “Canon 7C(1) does not restrict actual ‘speech,’ it should be analyzed under the ‘closely drawn’ scrutiny standard, rather than under strict scrutiny.”26 The ‘closely drawn’ standard of scrutiny grows out of the famous election law case of Buckley v. Valeo, which found that even significant infringement of protected political rights may be sustained if the state can demonstrate a compelling interest and avoids unnecessary infringement of rights by 27 closely drawing the means of achieving those interests.
The Court in Yulee rejected the standard of Buckley, calling it “a poor fit for this case.”28 The court distinguished the two cases by stating that while Buckley made the claim that campaign contribution limits violated freedom of association, and that Yulee in the case at issue only argued that the Bar violated her freedom of speech.29 Further, while the Court applied the Buckley standard in McConnell v. Federal Election Comm’n (2003),30 this was distinguished by the legislative intent; the solicitation restrictions in McConnell were determined to have been intended to “prevent circumvention of the contribution limits, which were the subject of the ‘closely drawn’ test in the first place.”31 Roberts dismissed similar application in Yulee by reasoning that the restrictions at issue were not intended to prevent circumvention of state campaign 32 finance laws.
_____ 25. Id. (citing, Republican Party of Minn. v. White, 536 U. S. 765, 774, (2002)). 26. Amicus Brief, Williams-Yulee v. Florida Bar, 135 S.Ct. 1656 (2015) No. 13- 1499, 2014 U.S. S.Ct. Briefs LEXIS 4585. 27. 424 U.S. 1, 25 (1976). 28. Williams-Yulee, 135 S.Ct. at 1665. 29. Id. 30. McConnell v. Federal Election Comm’n, 540 U. S. 93, 136 (2003), overruled in part by, Citizens United v. Federal Election Comm’n, 558 U. S. 310 (2010). 31. Williams-Yulee, 135 S.Ct., at 1665, (citing, McConnell, 540 U. S. at 138-39.) 32. Id. at 1666. 152 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:147
2. ROBERT’S MAJORITY ON THE DISPOSITION OF THE YULEE CASE
In the portion of the holding that garnered majority support which decided the actual dispute brought before the Supreme Court, the Florida Bar faced an admittedly high bar of showing both compelling interest and 33
narrow tailoring in restricting Yulee’s speech. The Florida Supreme Court’s admitted purpose for Canon 7C(1)’s adoption was “protecting the integrity of the judiciary, as well as maintaining the public's confidence in an impartial judiciary, represent compelling State interests capable of withstanding constitutional scrutiny.”34 The majority credited this interest as valid, relying on historical support for it from the Magna Carta, the Federalist Papers, and the modern oath taken by the Supreme Court Justices themselves.35 Further, Justice Roberts and the majority found unwavering support for the maintaining the integrity of, and public confidence in, the judiciary throughout previous precedent.36 The Court repeated its holding from White that different or stricter regulations may be applied to judicial elections than political ones as the roles of the officeholders differ 37 widely. Similarly, the court found the restriction imposed on Yulee to be sufficiently narrowly tailored to serve these goals. Here Yulee’s argument on appeal was muddled, arguing that Canon 7C(1) failed for being too narrow as it did not restrict other speech that was equally damaging to the state's interest such as solicitation by campaign committees, and the writing of 38 thank you letters to contributors by the candidates themselves.
The Court sharply responded to this, “It is always somewhat counterintuitive to argue that a law violates the First Amendment by abridging too little speech [...] the First Amendment imposes no
_____ 33. Id. at 1665-66. 34. Fla. Bar, 138 So.3d at 385, (citing, In re Kinsey, 842 So.2d 77, 87 (2003)). 35. Williams-Yulee, 135 S.Ct. at 1666. 36. Id. 37. Id., (citing Republican Party v. White, 536 U.S. 765, 783 (2002)). 38. Id. at 1668. 2016] WILLIAMS-YULEE V. THE FLORIDA BAR 153
freestanding ‘underinclusiveness limitation.’”39 Following their own precedents, the Court held that Canon 7C(1) was not fatally under inclusive and went on to differentiate campaigns committees from candidates themselves as reducing the appearance of quid pro quo, thus 40 maintaining the state's interests. Alternatively, Yulee argued that the Canon was too restrictive and not narrowly tailored and the least restrictive option available to the state for advancing their interests.41 Citing again the stated interests Florida expressed in adopting the rule, the Court determined, “the interest remains 42 whenever the public perceives the judge personally asking for money.” The Court reiterated that narrow tailoring did not mean perfect tailoring, and that requiring as such would be “impossible.”43 Instead, Roberts and the majority concluded that banning all personal solicitations for campaign donations was sufficiently narrow to serve the state's interests of avoiding the appearance of impropriety.44 Finally, the Court rejected Yulee’s argument that other limitations would be less restrictive ways for Florida to serve its ends. Recusal requirements would disable many Courts from functioning, enable forum shopping by donating to certain judges and not others, and create a “flood of postelection recusal motions” would only serve to highlight the problems the state seeks to solve.45 Similarly, campaign contribution limits already existed in 46 Florida, but did not preclude the state from taking further action. Roberts concluded the opinion of the Court by stating that candidates are protected by the First Amendment and contemporaneously states have an interest in the public's confidence in their courts and and 47 judges. The restriction here was narrowly tailored to keep those two
_____ 39. Id., (citing R.A.V. v. St. Paul, 505 U.S. 377, 387 (1992)). 40. Williams-Yulee, 135 S.Ct. at 1669. 41. Id. at 1670. 42. Id. at 1671. 43. Id., (citing Burson v. Freeman, 504 U.S. 191, 209 (1992)). 44. Id. at 1671. 45. Id. at 1671-72. 46. Id. at 1672. 47. Id. at 1673. 154 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:147
penalties from conflicting and the Florida Supreme Court's judgment was affirmed. 3. BREYER'S CONCURRENCE
Justice Breyer wrote a single sentence concurrence in order to express his view that the tiers of scrutiny should be used, “as guidelines 48 [...] not tests to be mechanically applied.”
4. GINSBURG’S CONCURRENCE
Justice Ginsburg’s opinion is a concurrence in part and a dissent in part. Justice Breyer joined Justice Ginsburg in her concurrence as to the level of scrutiny they felt was appropriate in reviewing the restriction in Yulee. As a result, these two justices denied Roberts a majority in the opinion on the issue of examining the restriction of Yulee’s First Amendment Rights under strict scrutiny, but nevertheless came to the same conclusion otherwise.
Justice Ginsburg argued there was no need to apply strict scrutiny when a state sought to make a distinction between political and judicial campaigns.49 As such, states deserve “substantial latitude” to regulate judicial elections, and the campaign finances thereof as campaign donations have the potential to cause the appearance, and even the 50 occurrence, of impropriety.
VI. DISSENT
1. SCALIA’S DISSENT
Justice Scalia was joined by Justice Thomas in dissenting from the Roberts’ opinion, calling a rule against a judicial candidate “asking anyone, under any circumstances” to contribute a “wildly disproportionate ______48. Id. (Breyer, J., concurring). 49. Williams-Yulee, 135 S.Ct. at 1673 (Ginsburg, R., concurring), (citing, Republican Party of Minnesota v. White, 536 U.S. 765, 803-5 (2002)) (Ginsburg, R., dissenting). 50. Id. at 1673-75 (Ginsburg, R., concurring). 2016] WILLIAMS-YULEE V. THE FLORIDA BAR 155
restriction upon speech.”51 Instead, Scalia argued the First Amendment protects speech “unless a widespread and longstanding tradition ratifies its regulation,” with obscenity, incitement, and fighting words being areas of traditional regulation.52 Scalia found the Florida rule did not fall into one of the limited, traditional categories. As such, Scalia presumed the rule unconstitutional as per the First Amendment, only redeemable by an adequate finding of compelling state interest accomplished by a narrow and servile restriction imposed by the State.53 In Yulee, Scalia declined to find any evidence that the ban increased public faith in the judiciary, instead 54 arguing at length the Florida rule is overbroad in its effects.
2. KENNEDY’S DISSENT
Justice Kennedy wrote the most vitriolic of the three dissents, arguing that the First Amendment’s guarantees should apply in the context of electioneering more so than with regard to any other form of expression.55 Justice Kennedy derided the majority’s decision to uphold the restrictions and penalties emplaced on Yulee as “state censorship” that effectively “gags” candidates and “silence[s]” the democratic process.56 Kennedy concluded by contending that the plurality portion of the Roberts’ opinion had erred in finding the rigors of strict scrutiny satisfied, “This law comes nowhere close to being narrowly tailored. [...] the Court now writes what is literally a casebook guide to eviscerating 57 strict scrutiny any time the Court encounters speech it dislikes.”
3. ALITO’S DISSENT
Justice Alito wrote the shortest of the three dissenting opinions, in _____ 51. Id. at 1675-76 (Scalia, A., dissenting). 52. Id. (Scalia, A., dissenting), (citing, Brown v. Entertainment Merchants Assn., 131 S. Ct. 2729, 2733 (2011)). 53. Id. at 1676 (Scalia, A., dissenting). 54. Id. at 1677-80 (2015), (Scalia, A., dissenting). 55. Id. at 1682-83 (Kennedy A., dissenting). 56. Id. at 1683-84 (Kennedy A., dissenting). 57. Id. at 1685 (Kennedy A., dissenting). 156 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:147
which he focused on the Florida rule Yulee was found to have violated, arguing that it failed strict scrutiny, “[T]his rule is about as narrowly tailored as a burlap bag.”58 His characterization of the majority holding was similar to Justice Kennedy’s, that the rule was overbroad and explodes the definition of narrow tailoring to an almost unrecognisable breadth.59 Instead Alito points to the Supreme Court of Florida for violating the 60 Constitution by penalising and slandering Yulee for “unethical conduct.”
VII. IMPLICATIONS OF YULEE
Yulee appears initially as a King Solomon like decision, with the Supreme Court balancing free speech in the course of electoral campaigns with the preservation of the impartiality of the eventual officeholders. Instead, the ruling is of such narrow application and such modest implications that, in light of the Court’s recent full throated support of the unlimited flow of money into politics, Yulee is an overlookable aberration. Decades of jurisprudence appeared to favor the Yulee dissenters. Political speech has consistently been deemed the preeminent concern of the First Amendment,61 especially analogous was the court's decision of Citizens United five years before, “if the First Amendment has any force, it prohibits [...] fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”62 The most important takeaway from the Roberts Majority is the distinction made between speech in “judicial” as compared to “political” elections.63 Roberts by declaring “judges are not politicians”64 distinguishes Yulee from cases such as Citizens United in that the Court’s ruling is only applicable to judicial elections, “Unlike a politician, who is expected to be appropriately responsive to the preferences of supporters, a
judge in deciding cases may not follow the _____ 58. Id. (Alito S., dissenting). 59. Id., at 1685 (Alito S., dissenting). 60. Id. at 1685-86 (Alito S., dissenting). 61. First Nat'l Bank v. Bellotti, 435 U.S. 765, 777 (1978) (“[political speech] is the type of speech indispensable to decision making in a democracy”). 62. Citizens United, 558 U. S. at 349. 63. Williams-Yulee, 135 S.Ct. at 1667. 64. Id. at 1662. 2016] WILLIAMS-YULEE V. THE FLORIDA BAR 157
preferences of his supporters or provide any special consideration to his campaign donors.”65 As such, the ruling has no effect on the current state of campaign finance law with respect to local, state, and national
legislative and executive elections. Even still, in the context of judicial elections at the local and state levels66 the ruling will likely bring limited effects. Only with the 2002 White case, were candidates for judicial offices to take contentious political and legal stances in the course of their campaign activities.67 Yulee now opens
the floodgates of politicization as the majority explicitly rejects Yulee’s underinclusiveness arguments by specifically allowing candidates to be their own campaign committee treasurer, know who their campaign donors are, and to express gratitude to donors with a signed letter.68 Under Yulee, candidates are encouraged to say thank you,
but discouraged from first saying please. Nevertheless, even this almost apologetically written decision, which points out its own obvious porousness, barely garnered enough votes to uphold the Florida rule. The finding of narrow tailoring, as well as a compelling public interest, possible only because the restriction effected a judicial and not a political election, yielded a bare majority of five justices. These five were unable to even decide on the appropriate test to applicable in coming to their conclusion.69 As such, it seems Yulee demarcates the far outer limits of “cases in which a speech restriction withstands strict scrutiny.”70 Any application in a political election, or application in a broader form as the weakly applicable Florida rule would presumably fail to garner the support of five justices to withstand strict
_____ 65. Id. at 1659. 66 Id. at 1662 (While Federal Judges of all levels are appointed for life, “In 39 States, voters elect trial or appellate judges at the polls”). 67. Republican Party, 536 U. S. at 765. 68. Williams-Yulee, 135 S.Ct., at 1663 (citing, An Aid to Understanding Canon 7, 51-58 (2014)). 69. Justice Ginsburg rejected application of strict scrutiny. The four dissenters, Justices Scalia, Kennedy, Thomas, and Alito all applied strict scrutiny but came to an alternate conclusion. Together, Yulee actually rules 8-1 in favor of applying strict scrutiny. 70. Williams-Yulee, 135 S.Ct. at 1666 158 NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 24:147
scrutiny. Yulee, in upholding a modest restriction on electioneering, actually illuminates how very limited campaign finance laws are in the wake of Buckley, Citizens United, and McCutcheon. Without a constitutional amendment, or a tremendous and unlikely shift by the court, will any major departure from this line of jurisprudence be possible.
National Italian American Bar Association – Application for Membership
Apply and pay online at www.niaba.org or complete the following information
Name______
Firm Name______
Firm Adress______
City, State, Zip and Country______
Office Phone______Fax______
Cell Phone______E-mail______
Website______
Home Address______
Home Phone______
Law School, w/ graduation year______
In which states and/or countries are you licensed to practice law______
Which languages (besides English) can you read and/or speak fluently?______
Areas of Practice Administrative Estate Planning Probate Adoption Family Law Product Liability (Plaintiff) Antitrust Franchise Product Liability Appellate General Practice Professional Disciplinary Arbitration/Mediation Health Care Public Service Banking Immigration Real Estate Bankruptcy/Reorganizati In-House Real Estate Tax Business Insurance Retired Civil Rights Intellectual Property Securities Class Actions Investment Banking Social Security Commodities Judge Tax Commercial Litigation Labor/Empl/Mgmt Relations Torts Construction Litigation Traffic Corporate/Business Malpractice Training/Consulting/Educat Criminal Accountant Wills and Trusts Customs/International Attorney Workers Comp (Plaintiff) Defamation Medical Workers Comp (Defendant)
Divorce Municipal Zoning/Planning Educator Patent & Trademark Employee Benefits Personal Injury (Plaintiff) Other Environmental Personal Injury (Defendant)
Membership Status Attorney Judge Retired Law student
Membership Level & Annual Dues: Regular Member ($50) Sponsor ($100) Patron Sponsor ($250) Law student (free)
How did you learn about NIABA?
Local Association Web Site The DigestLaw Journal Referral from Member______ Other______
Would you like to make a contribution to the NIABA Scholarship Fund?
$100 or more $50 $25 Other ______Include your check, made payable to NIABA Scholarship Fund
I certify that I am at least one of the following: a lawyer of Italian birth or extraction; a lawyer related by marriage to a person of Italian birth or extraction; a lawyer who is willing to support the purposes and objectives of this association. I further certify that I have been admitted to practice law and am in good standing in any country or jurisdiction; or have been granted and possess a law degree from a college of law in any jurisdiction and would qualify for admission to practice law; or am currently a law student in an accredited law school in any country or jurisdiction. All information I have provided is true and accurate to the best of my knowledge.
Signature______Date______
Mail this form along with your membership dues and any other amounts listed above, made payable to NIABA, to: NIABA PMB 932 2020 Pennsylvania Ave., NW Washington, DC 20006-1846 Phone: 414-750-4404 Fax: 414-255-3615