Responsibility, and the Fundamental Nature of Human Interaction

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Editorial Board Editors-in-Chief Alexandra M. Klindienst Sarah E. Kelly

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Faculty James R. Hackney, Jr. Elizabeth M. Bloom Dean and Professor of Law Teaching Professor

Martha F. Davis Lee P. Breckenridge Professor of Law and Associate Dean for Professor of Law Experiential Education

Kristin M. Madison Margaret A. Burnham University Distinguished Professor of Law Professor of Law and Health Sciences and and Director, Civil Rights and Restorative Associate Dean for Academic Affairs Justice Project Margaret Y.K. Woo Professor of Law and Associate Dean for Dan Danielsen Professor of Law and Faculty Director, Research and Interdisciplinary Education Program on the Corporation, Law & Global Society Roger I. Abrams Richardson Professor of Law Emeritus Richard A. Daynard University Distinguished Professor of Law Libby S. Adler and President, Public Health Advocacy Professor of Law and Women’s, Gender Institute and Sexuality Studies Christine M. Durkin Aziza Ahmed Associate Teaching Professor Professor of Law Rashmi Dyal-Chand Brook K. Baker† Professor of Law Professor of Law Peter D. Enrich Shalanda H. Baker Professor of Law Professor of Law, Public Policy and Urban Affairs Julian M. Fray Assistant Teaching Professor Leo Beletsky Associate Professor of Law & Hemanth C. Gundavaram Health Sciences Teaching Professor and Co-Director, Immigrant Justice Clinic

† Masters in Legal Studies Faculty viii

Faculty (cont.) Margaret Hahn-Dupont Carol R. Mallory Teaching Professor and Program Associate Teaching Professor Administrator, Legal Skills in Social Context Andrea M. Matwyshyn Professor of Law and Co-Director, Center Stephanie R. Hartung for Law, Innovation and Creativity Teaching Professor Susan A. Maze-Rothstein Woodrow Hartzog Teaching Professor Professor of Law and Computer Science Victoria McCoy Claudia E. Haupt Assistant Teaching Professor and Director, Associate Professor of Law and Political Academic Success Program Science Daniel S. Medwed Wallace E. Holohan University Distinguished Professor of Law Senior Clinical Specialist and Director of & Criminal Justice and Faculty Director, the Prisoners’ Rights Clinic Professional Development

Karl E. Klare Michael Meltsner George J. and Kathleen Waters Matthews George J. and Kathleen Waters Matthews Distinguished University Professor of Law Distinguished University Professor of Law Kandace Kukas Assistant Dean and Director of Bar Susan Barbieri Montgomery Executive Professor of Law & Business Admission Programs

† Mary E. Landergan Wendy E. Parmet Matthews Distinguished University Associate Teaching Professor and Co- Professor of Law, and Director, Center for Director, IP CO-LAB Health Policy & Law; Professor of Public Policy & Urban Affairs, Northeastern University School of Public Policy & Urban Margo K. Lindauer Affairs Associate Teaching Professor and Director, Jeremy R. Paul Domestic Violence Institute Professor of Law

† Masters in Legal Studies Faculty Vol. 12, No. 2 Northeastern University Law Review ix

Faculty (cont.) David M. Phillips† Jessica M. Silbey Professor of Law Professor of Law and Co-Director, Center for Law, Innovation and Creativity Jason Potter Associate Teaching Professor Ira Sills Lecturer in Law Deborah A. Ramirez Professor of Law Emily A. Spieler Hadley Professor of Law H.C. Robinson Associate Professor of Law and Sociology Kara W. Swanson Professor of Law

Sonia Elise Rolland Professor of Law and Faculty Director, Lucy A. Williams LLM and International Programs Professor of Law and Faculty Director, Center for Public Interest Advocacy and Collaboration Rachel E. Rosenbloom Professor of Law and Co-Director, Rose Zoltek-Jick Immigrant Justice Clinic Associate Teaching Professor and Associate Director, Civil Rights and James V. Rowan† Restorative Justice Project Professor of Law and Director, Clinical Programs

Peter B. Sessa Associate Teaching Professor and Director, Community Business Clinic

Adjunct and Visiting Faculty Joshua L. Abrams Gary Cooper Scott Akehurst-Moore Kyle Courtney Helena Alviar† Joshua Davis Mark N. Berman Fernande RV Duffly Jay D. Blitzman Angela Duger Robert G. Burdick Dawn Effron Peter Campia Elizabeth Fahey Nina Farber † Masters in Legal Studies Faculty x

Adjunct and Visiting Faculty (cont.)

Patricia Garin William Mostyn Mark Gottlieb Stephen Novak Ilana Greenstein Patricia O’Connell Joshua S. Grinspoon† Carla Perrotta L. Elliott Hibbler Michael Pezza, Jr. Patricia Illingworth Alex G. Philipson Ivana Isailovic Alexandra Roberts David Ismay Arnold R. Rosenfeld R. Marc Kantrowitz Stuart Rossman Michael Keating Alfreda Russell Barbara Ellis Keefe Robert (Rusty) Russell Melvin Kelley Yuliya G. Scharf Kenneth King Amy Remus Scott Stephen M. Kohn James A.W. Shaw Jootaek Lee Rachel Thrasher Neil T. Leifer Michael Tumposky Sofia Lingos Kevin Wall Liliana Mangiafico Jamie Wacks Julia Maycock Mark Worthington Stephen McJohn Masters of Legal Studies Faculty Patricia Davidson Natacha Thomas Thomas Madden Dan Urman Sean Nolon Kevin F. Wall Rebecca Rausch Marsha White

† Masters in Legal Studies Faculty Vol. 12, No. 2 Northeastern University Law Review xi

Editors’ Introduction The rapid spread of the novel coronavirus (COVID-19) has radically changed humanity’s approach to public health, social responsibility, and the fundamental nature of human interaction. In the past month, United States companies have laid off in excess of 22 million employees, causing unemployment to skyrocket at rates paralleling those that haunted the Great Depression. As schoolhouse doors are indefinitely locked, over 50 million children now battle the challenges of remote schooling alongside their similarly home- bound parents and guardians. Meanwhile, civil and constitutional liberties hang in the balance, as non-emergency court hearings halt amidst lock-down orders, creating a chasm between public safety and access to justice. In the Editor’s Introduction to Issue 1, we shared our belief that “society’s reaction to this period of immense political disillusionment will define history’s perception of our ever-changing era.” These words were written in late January—when whispers of impeachment consumed political conversation and COVID-19’s escalation as a global health pandemic seemed a distant threat. Now, more than ever, we press forward in our mission to provoke thoughtful debate and forward-thinking conversation. To that end, this issue welcomes discussion of diverse, cutting-edge topics, including constitutional reform, corporate responsibility, the fall of grand juries, Auer deference, data privacy, juror education, legislative transsubstantivity, natural disaster mitigation, and critique of the Establishment Clause. Publication of this volume would not have been possible without the herculean efforts of the Law Review’s editorial staff and authors. In this time of global turbulence, we are incredibly proud to continue advancing innovation, interdisciplinary scholarship, and practical application of the law through the successful publication of Volume 12, Issue 2.

Editorial Board Northeastern University Law Review Vol. 12, No. 2 Northeastern University Law Review 375

Celebrating the Founders or Celebrating the Constitution: Reflections on Constitution Day, 2019*

Sanford Levinson **

* An earlier version of these remarks was delivered on September 16, 2019 at Northeastern University as part of its program celebrating Constitution Day. I am very grateful to Costas Panagopoulos for his invitation to deliver the talk and to the Northeastern University Law Review for suggesting that it might be published together with some responses. Among other things, of course, this text is longer than what I delivered on September 16 and, therefore, fleshes out some of the arguments I was able only to assert without any elaboration. ** W. St. John Garwood and W. St. John Garwood Centennial Chair in Law, University of Texas Law School; Professor of Government, University of Texas at Austin; Visiting Professor of Law, Harvard Law School, Fall, 2019. 376 Levinson

I begin with some law: In 1952, Congress passed a joint resolution designating September 17, the date in 1787 on which the delegates to the Philadelphia Convention did (or as in the case of Edmund Randolph, George Mason, and Elbridge Gerry, did not) sign the text of the document that had been forged in almost four months of disputatious argument, as “Citizenship Day.”1 Later, in 1956, another joint resolution of Congress “requested that the President proclaim the week beginning September 17 and ending September 23 of each year as ‘Constitution Week.’”2 The most recent relevant legislation explicitly wedding “Citizenship Day” with “Constitution Day” was passed in 2004 at the behest of the late West Virginia Senator Robert Byrd.3 Although this legislation states “[t]he civil and educational authorities of States, counties, cities, and towns are urged to make plans for the proper observance of Constitution Day and Citizenship Day” in order to instruct citizens of the United States about “their responsibilities and opportunities,”4 the use of the word “urge” is misleading. Federal law is now interpreted as requiring all educational institutions that receive any federal funds to arrange appropriate ceremonies for the occasion.5 So our gathering, on September 16, as it happened, was not entirely the result of a voluntary decision by the university, though I am confident, for some reasons I shall shortly explore, that the decision to invite me to deliver these remarks was not similarly coerced by the national government.

1 Joint Resolution of Feb. 29, 1952, Pub. L. No. 261, ch. 49, 66 Stat. 9 (codified as amended at 36 U.S.C. § 106 (2012)). See, though, the description of the Joint Resolution offered in President Trump’s 2019 Proclamation of Citizenship and Constitution Day. Proclamation No. 9929, 84 Fed. Reg. 49629 (Sept. 16, 2019) (incorrectly stating holiday originally designated as “Constitution Day and Citizenship Day”). 2 Proclamation No. 9929, supra note 1 (citations omitted) (“The Congress, by joint resolution of February 29, 1952, designated September 17 as ‘Constitution Day and Citizenship Day,’ and by joint resolution of August 2, 1956, requested that the President proclaim the week beginning September 17 and ending September 23 of each year as ‘Constitution Week.’”). 3 Constitution Day and Citizenship Day, Libr. of Congress, https://www. loc.gov/law/help/commemorative-observations/constitution-day.php (last updated Sept. 6, 2019); see Consolidated Appropriations Act of 2005, Pub. L. No. 108-447, § 111, 118 Stat. 2809, 3344–45 (2005) (codified as amended at 36 U.S.C. § 106 (2012)). 4 § 111, 118 Stat. at 3344–45 (emphasis added). 5 See Libr. of Congress, supra note 3 (“[E]ach educational institution which receives Federal funds should hold a program for students every September 17th.”). Vol. 12, No. 2 Northeastern University Law Review 377

In any event, Congress presumably desires this day—or week—to be one of celebration. On occasion, presidents have issued suitable proclamations taking note of the solemn occasion. Consider President Obama’s statement in 2009:

The United States Constitution has withstood the test of time for more than two centuries as our Nation’s charter of government and the guarantor of our liberties. Signed in Philadelphia on September 17, 1787, this founding document reflects our core values and enshrines the truths set forth in the Declaration of Independence, that we are each endowed with certain unalienable rights. As the beneficiaries of these rights, all Americans have a solemn obligation to participate in our democracy so that it remains vibrant, strong, and responsive to the needs of our citizens. To succeed, the democracy established in our Consti- tution requires the active participation of its citizenry. Each of us has a responsibility to learn about our Constitution and teach younger generations about its contents and history. By fulfilling civic duties, engaging government at the local, State, and Federal level, and volunteering in our communities, individual citizens can better our country and breathe life into the freedoms established in the Constitution. The right to participate in self-government, and the many other freedoms guaranteed by our Constitu- tion, inspire the dreams and ambitions of many inside and outside our borders. These principles serve as a beacon of hope for Americans and those who seek new lives in the United States. Every day, we welcome new and diverse stories and heritages into the great patch- work of our Nation. United by our devotion to the Constitution and to the civic engagement it inspires, Americans remain committed to the fundamental principles established over two hundred years ago.6

Much can be said about President Obama’s proclamation, starting

6 Proclamation No. 8418, 74 Fed. Reg. 48129 (Sept. 21, 2009). 378 Levinson with his assertion that the 1787 Constitution necessarily reflected our “core values,” given both its compromises with slavery and the brutally ironic fact that the promise of “establishing justice” in the magnificent Preamble was interpreted at the time as establishing federal courts that would help reinforce property rights in slaves. There is a reason, after all, that William Lloyd Garrison labeled the Constitution a “covenant with death, and agreement with hell.”7 One should also readily understand the fact that Justice Thur- good Marshall delivered a famous—and for some, notorious—speech in 1987 in which he basically distanced himself from the bicentennial celebrations occurring that year and explained that for him, the Constitution worth celebrating began only with the addition of the so-called Reconstruction Amendments.8 Marshall reminded us that it is fallacious to say that the 1787 Constitution withstood the test of time for more than two centuries.9 Any such assertion requires that we simply avoid recognizing the brute fact of a civil war—or, if one wishes, a “War Between the States”—that killed 750,000 persons and left us with a still-incomplete “Reconstruction” of the Union, if by that one means a genuine regime change that would completely efface the heritage of slavery. I am often reminded of a remark I overheard at a 1987 bicentennial program on the Constitu- tion at the Smithsonian Institution in Washington. The late UCLA historian Joyce Appleby observed a button worn by a prominent fellow historian at the gathering. “Still working after 200 years,” said the button. Appleby’s laconic comment was, “yes, but it was in the shop for eight of those years,” and one wonders if “eight” was not far too generous. Finally, it is also a notorious truth most recently restated in Bush v. Gore that “self-government,” at least if defined as the right to vote, is nowhere enshrined in the Constitution, even though states are prohibited from limiting suffrage, should they choose to estab-

7 See, e.g., Donald Yacovone, “A Covenant with Death and an Agreement with Hell”, Mass. Hist. Soc’y (July 2005), https://www.masshist.org/object- of-the-month/objects/a-covenant-with-death-and-an-agreement-with- hell-2005-07-01. 8 See Thurgood Marshall, The Constitution’s Bicentennial: Commemorating the Wrong Document?, 40 Vand. L. Rev. 1337 (1987); Al Kamen, Marshall Blasts Celebration of Constitution Bicentennial, The Washington Post, May 7, 1987. 9 See Thurgood Marshall, supra note 8, at 1338 (“When contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.”). Vol. 12, No. 2 Northeastern University Law Review 379 lish it, on the grounds of race, sex, age, or ability to pay a poll tax.10 And, of course, unlike in nearly all of the 50 state constitutions that in fact help comprise the “American constitutional tradition,” (even if they are regrettably ignored both by the public and most legal educators), there is no federal ability of the ostensibly sovereign “We the People” to actually engage in any semblance of direct rule through referenda. It is, perhaps, unfair to expect presidents, even when they are former professors of constitutional law like President Obama, to think carefully about—or, perhaps, even read at all—the statements that are drafted in their names for such ceremonial occasions. But the highly routinized and ostensibly non-controversial nature of the proclamations can nonetheless illuminate presuppositions that are ingrained and thought, perhaps wrongly, to be unproblematic. One could certainly spend much time on a sentence from Presi- dent Trump’s 2019 Constitution Day Proclamation that described the Framers as having “designed a Government and a Constitution that could withstand the inevitable demagoguery, passions, and ex- igencies that would seek to unmake us as a people.”11 Given that he is rightly regarded as the most truly demagogic occupant of the White House in our history and was, shortly after the delivery of this talk, justifiably impeached by the House of Representatives for his reckless indifference to constitutional norms, one might wonder if the drafter of Trump’s proclamation, which one can be confident was not pondered by the President before he signed it, intended to engage in a silent act of subverting his boss. It would truly be more discouraging if the author did not in fact recognize Trump’s demagogic character. It is, then, no small matter to gather ourselves together, prod- ded by the national government and the fact that it helps finance this great university, to decide what it means to treat the occasion with the seriousness that it in fact deserves. Although one might be tempted to issue forth what may even be expected ceremonial cli- chés, that is, for better or, perhaps, for worse, not my own approach. Instead, I want to explain what I am willing to celebrate and what, in contrast, I increasingly wish to question. The answer to the former is those whom we call the Framers themselves. It is not that I see them as “demigods,” which they were

10 See Bush v. Gore, 531 U.S. 98 (2000) (holding Florida’s 2000 election manual recount violated Equal Protection clause). 11 Proclamation No. 9929, supra note 1. 380 Levinson sometimes described as being; even less do I see them, as is suggested by Mormon theology, as divinely inspired.12 Rather, it should be enough to acknowledge that they were truly concerned citizens of a new and extremely vulnerable United States of America—a title itself notable for its ambiguity, depending on whether one inflects “United” or “States”—who were justifiably worried about the prospects of its very survival, given that it was scarcely surrounded by a community of well-wishers. In some ways, I view them as successors to Paul Revere, who gained his own fame by mounting his horse and riding through the dark countryside with a warning to his fellow citizens (and de facto secessionists from the British Empire) that they were about to be attacked by soldiers loyal to King George III (and the entire edifice of British government). Independence had been won, thanks to the bloodshed of those we deem “patriots,” the aid of the French, and the exhaustion of the British. But, as with all startups, success was not assured. The Philadelphia Convention never would have occurred had there not been sufficient, even if not universally shared, agreement that the political system established by our first—and almost completely ignored—constitution, the Ar- ticles of Confederation, was, as described by Hamilton in Federalist No. 15, an “imbecility.”13

12 Utah Senator Mitt Romney alluded to this aspect of his Mormon belief in his remarkable and moving speech to the Senate explaining his decision to vote to convict and, therefore, remove from the presidency, Donald Trump for his abuse of presidential power by delaying necessary military aid to Ukraine, while pressuring the president of that country to engage in a spurious investigation of Joe Biden. See The New York Times, Full Transcript: Mitt Romney’s Speech Announcing Vote to Convict Trump, N.Y. Times, Feb. 5, 2020, https://www.nytimes.com/2020/02/05/us/politics/mitt-romney- impeachment-speech-transcript.html (“I believe that our Constitution was inspired by Providence.”). 13 The Federalist No. 15, at 30 (Alexander Hamilton) (Roy P. Fairfield ed., Johns Hopkins Univ. Press 2d ed. 1981) (1966). Hamilton began Federalist No. 1 with a more mild-mannered reference to the “unequivocal experience of the inefficiency of the subsisting federal government.” The Federalist No. 1, at 1 (Alexander Hamilton) (Roy P. Fairfield ed., Johns Hopkins Univ. Press 2d ed. 1981) (1966); see also Sanford Levinson, An Argument Open To All: Reading the Federalist in the 21st Century 9–12 (2015). Hamilton had been preceded in his harsh dismissal of the Confederacy by Virginia Governor Edmund Randolph, who on June 16, had, as recorded by James Madison, “painted in strong colours the imbecility of the existing Confederacy, & the danger of delaying a substantial reform.” Madison Debates June 16, The Avalon Project, https://avalon.law.yale.edu/18th_century/ debates_616.asp (last visited Feb. 19, 2020). Vol. 12, No. 2 Northeastern University Law Review 381

I am a big fan of Lin-Manuel Miranda’s version of Alexander Hamilton and of his musical’s repeated iteration of the necessity to “rise up” against those who are oppressing us, or who are simply making the self-government promised by the Declaration of In- dependence a near-impossibility.14 President Obama was, I believe, most fully honoring our Framers when he titled his own memoir The Audacity of Hope.15 They were audacious in almost every sense: in the risks they took first in rising up against the British government, and then in effectively scrapping the Articles of Confederation after only six years because they believed the Articles were so clearly inadequate to the maintenance of a new and vibrant country. Were all of the decisions the Framers made in Philadelphia fully justifiable, even at the time? Of course not! I have already ad- verted to the various compromises with slavery, and I also take every opportunity I have to denounce the terrible decision to award all states equal voting power in the Senate. James Madison himself de- nounced that decision as an “evil” in Federalist No. 62, but the word was preceded by the all-important adjective “lesser,” for he had decided not to walk out of the Convention in protest, as was his initial instinct.16 Rather, he chose to accept the blunt fact that acquiescence to the demands of Delaware and other small states was simply necessary to the overriding task of replacing the Articles and establishing a far more workable national government. Similar arguments were made by some of the Framers who held no brief for slavery, but recognized that a refusal to compromise would mean the failure of the entire Philadelphia enterprise. Indeed, whether paradoxical or not, President Obama reminded Americans in 2010, following the disastrous losses by Democrats in the midterm elections that year, that the United States is “a big, diverse country . . . in order to get stuff done, we’re going to compromise.”17 From one perspective,

14 See Original Broadway Cast of Hamilton, Hamilton (Atlantic Records 2015). 15 Barack Obama, The Audacity of Hope (2006). 16 The Federalist No. 62, at 183 (James Madison) (Roy P. Fairfield ed., Johns Hopkins Univ. Press 2d ed. 1981) (1966). 17 President Barack Obama, Press Conference (Dec. 7, 2010) (partial transcript available at Kori Schulman, President Obama on the Middle Class Tax Cuts and Unemployment Insurance Agreement, The White House: Blog (Dec. 7, 2010, 4:54 pm), https://obamawhitehouse.archives.gov/blog/2010/12/07/ president-obama-middle-class-tax-cuts-and-unemployment-insurance- agreement-a-good-de), quoted and discussed in Sanford Levinson, Framed: America’s 51 Constitutions and the Crisis of Governance 42 382 Levinson perhaps the most fundamental lesson of 1787 was, to quote Pres- ident Obama, that “[t]his country was founded on compromise. I couldn’t go through the front door at this country’s founding. And if we were really thinking about ideal positions, we wouldn’t have a union.”18 So, a central lesson of the Founding period is, perhaps, that one must on occasion make a pact with the devil, what Garrison accurately described as an “agreement with hell,”19 in order to achieve what are defensible greater purposes. If the alternative really was the disintegration of the fragile United States into two, or perhaps even three, separate countries along the Atlantic Coast with attendant prospects of endless warfare, as was predicted especially in such essays as Federalist No. 8,20 then perhaps we should all swallow hard and celebrate the willingness of the Framers to engage in what the Israeli philosopher Avishai Margalit has labeled “rotten compromises.”21 We did, after all, ally with Stalin in order to defeat Hitler during World War II, and I tremble to think of what would have happened had we been more pure in our alliances at that time. To over-valorize the Constitution, to view it as the instantiation of all that is good within the American political tradition, may be a disservice to the Framers themselves, none of whom believed that they had achieved some kind of utopian perfection in what was then the brand new practice of constitutional design. George Washington, after all, had written to his nephew Bushrod (who would later be appointed as a member of the Supreme Court) on November 10, 1787, less than two months after Septem- ber 17, that even the “warmest friends and best supporters” of the new Constitution “do not contend that it is free from imperfec- tions.”22 It was quite literally the best the delegates in Philadelphia could come up with given constraints of time, climate, and, most importantly, deep political cleavages between small and large states,

(2012) [hereinafter Levinson, Framed]. 18 President Barack Obama, supra note 17. 19 Donald Yacovone, supra note 7. 20 The Federalist No. 8, at 44 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 21 See Avishai Margalit, On Compromise and Rotten Compromises (2009). 22 Letter of George Washington to Bushrod Washington (Nov. 10, 1787), in The Origins of the American Constitution: A Documentary History 83 (Michael Kammen ed., 1986), quoted in Responding to Imperfection 3 (Sanford Levinson ed., 1995). Vol. 12, No. 2 Northeastern University Law Review 383 and slave and free states. The good news conveyed by Washington to his nephew, though, is that future generations who “will have the advantage of experience on their side”23 can decide what changes are necessary, given that the Constitution itself acknowledges the possibility of amendment in Article V.24 “I do not think,” said the then President of the Convention and later first President of the United States, “we are more inspired, have more wisdom, or possess more virtue, than those who will come after us.”25 So perhaps what we call “Constitution and Citizenship Day” should occasion is not thoughtless praise of our founding document, but, instead, an opportunity to ask ourselves what is required of us if we accept President Obama’s invitation to consider ourselves truly active citizens of our constitutional order who can call on our own lessons of experience and, if need be, become as audacious as the Framers before us. This question calls on us to think more deeply about what exactly we do when we “celebrate” founders and innovators, as I think we should almost certainly do. But it should be obvious that celebrating innovators does not mean continued adherence to their particular innovations. Consider Crawford Long, who discovered in 1842 that ether would anesthetize patients undergoing surgery.26 There can be little doubt that this was one of the great developments in the history of medicine, no doubt saving many lives and, as much to the point, freeing patients from the prospect of unendurable pain. That there is a museum honoring Crawford Long in Jefferson, Georgia, is completely appropriate. But, and this is the main point, it would bizarre in the extreme for anyone to argue today, 178 years later, that honoring Crawford Long and what was undoubtedly his own audacity in determining the properties of ether means that any operation today should involve the use of ether. It is, perhaps, the particular fate of inventors and discoverers to know that they are almost inevitably going to be supplanted by later people who, altogether sincerely, view the prior achievements as inspirations for their own willingness to explore new paths and take intellectual risks. The recognition that Einstein supplanted Isaac Newton in important ways does not in the least make Newton less great as a scientist or as an inspiration,

23 Id. 24 See U.S. Const. amend. V. 25 Letter of George Washington to Bushrod Washington, supra note 22. 26 See Frank Kells Boland, The First Anesthetic: The Story of Crawford Long 37–38 (1950). 384 Levinson even if it does mean that Newtonian mechanics have become only a subset of the larger enterprise of physics. If one accepts this almost banal point with regard to innovators and inventors, whether Crawford Long, Thomas Edison, or the Wright Brothers, why should we be any less hesitant to put the Constitution’s Framers in their place? They were necessarily creatures of their own time who could not have been expected to foretell the future. We forgive them for failing to include an air force in the list of armed forces Congress can establish along with an army and a navy because they literally could not have conceived of what we now take for granted. And, as a matter of fact, no sane interpreter of the Constitution treats the absence of an air force in the Constitution’s text as grounds for arguing that only an amendment would authorize its creation. The army and navy are treated only as examples of armed forces; if experience teaches that others are “necessary and proper,”27 so to speak, then Congress need not worry about over- stepping its bounds, even if one takes seriously the mantra that the Constitution establishes a national government with delimited written and assigned powers. And, as already suggested, we may be willing to forgive the Framers for making quite repugnant compromises in the name of what Oliver Wendell Holmes might aptly describe as the “felt necessities of the time,”28 the reality of which is often more determinative in defining law than is abstract logic or even the teachings of moral philosophy. Michael Walzer, following in the tradition of Machiavelli and Max Weber, has taught us that political leaders must almost inevitably be willing to “dirty” their hands,29 to follow what Weber called the “ethics of responsibility” instead of those of “ultimate ends.”30 One is often told that one does not make omelets without breaking eggs. When generalized to politics more broadly, the aphorism takes on far more ominous implications. Political life, including the crafting of constitutions, is not for those who seek moral purity and we are thus in the position of needing to honor, at least at times, those who were willing to dirty their own hands in order to serve the public weal.

27 See U.S. Const. art. I, § 8. 28 Oliver Wendell Holmes, The Common Law 1 (1881). 29 See Michael Walzer, Political Action: The Problem of Dirty Hands, 2 Phil. & Pub. Aff. 160 (1973); see also C.A.J. Coady, The Problem of Dirty Hands, Stan. Encyc. of Phil. (Fall 2018), https://plato.stanford.edu/cgi-bin/encyclopedia/ archinfo.cgi?entry=dirty-hands. 30 See Max Weber, Politics as a Vocation, in From Max Weber: Essays in Sociology 77–128 (H.H. Gerth & C. Wright Mills eds., trans., 1948). Vol. 12, No. 2 Northeastern University Law Review 385

However, as already suggested with regard to Crawford Long and his ether, this does not in the least mean that honoring our forbearers requires accepting their own time-bound and politically-constrained conclusions as the last word with respect to conducting our own lives, especially regarding compromises about whose virtues they themselves had well-merited doubts. Even the most devoted “originalists” with regard to our often bitter debates about how best to interpret the Constitution that we have do not argue that “originalism” extends to unquestioning devotion to whatever the Constitution happens to mean. Yale Professor Bill Eskridge and I co-edited a book some 20 years ago called Constitutional Stupidities, Constitutional Tragedies, in which various scholars were asked to pick their own candidates for either the stupidest or most tragic feature of the (correctly interpreted) Constitution.31 No one turned down our invitation to participate by arguing that the Constitution was in fact perfect, devoid of any stupidity or, concomitantly, without the potential for creating tragedy when correctly interpreted. I never tire of quoting the conclusion to Federalist No. 14, which, though written by Madison, captures the spirit of its other principal author as well, Alexander Hamilton:

Is it not the glory of the people of America, that . . . they have not suffered a blind veneration for antiq- uity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? . . . Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate.32

One way of understanding this is that it allows us to celebrate Madison and his colleagues precisely for their willingness to

31 See generally Constitutional Stupidities, Constitutional Tragedies (William N. Eskridge, Jr. & Sanford Levinson eds., 1998). 32 The Federalist No. 14, at 28 (James Madison) (Roy P. Fairfield ed., Johns Hopkins Univ. Press 2d ed. 1981) (1966). 386 Levinson trust “the lessons of their own experience” and to reject entrenched “customs” that no longer fit the circumstances. Our own task as the descendants of the Framers is to do likewise, to realize that “per- petuation” of a system truly dedicated to achieving the goals of the Preamble might require significant “improvement” and concomitant rejection of decisions made long before, whether as honest mistakes—the electoral college—or felt “necessary evils,” like slavery and the Senate. I have written several books that are quite, even extremely, critical of the Constitution.33 My wife and I wrote a book together, directed primarily to teenagers and now in its second edition, titled Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today.34 It is devoted to examining what we believe to be the genuine threats posed to us should there be a shift among the various tectonic plates embedded in the Constitution. These plates threaten, should they shift, political and constitutional earthquakes equivalent in their potentially devastating consequences to more natural cataclysms that can destroy great cities in their aftermaths. It is an unfortunate reality that these fault lines, because they are rarely, if ever, the subject of litigation, are all-too-often simply ignored or denied in terms of their potential importance. Our book, like my pri- or books, was not meant as an attack on the Framers. I often point out in my frequent criticisms of the Constitution that I rarely, if ever, engage in “founder-bashing.” Although I insisted when visiting the National Constitution Center in Philadelphia, which concludes with a room devoted to life-size statues of all of the delegates to the 1787 Convention, that my wife take my picture with the three who refused to sign the Constitution, I cannot honestly say I know what I would have done back then. We are all creatures of our own times and the arguments made even on behalf of terrible compromises cannot simply be brushed aside. What I can do—even at the price of appearing at times to be simply a scold, or even worse, a crank—is in effect bash those of us today who almost resolutely refuse to consider the proposition that the Constitution is significantly defective, much in need of what Hamilton in Federalist No. 1 called “reflection

33 See, e.g., Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (2006); Levinson, Framed, supra note 17. 34 Cynthia Levinson & Sanford Levinson, Fault Lines in the Constitution (2017). Vol. 12, No. 2 Northeastern University Law Review 387 and choice” on how to change it for the better.35 So, let me say that when I am asked, as most professors of constitutional law are these days, if the United States is in a “constitutional crisis,” I increasingly answer that the Constitution itself is the crisis. Part of the evidence is the fact that overwhelming ma- jorities of Americans across the political spectrum no longer have any genuine esteem for Congress nor a belief that the national government is committed to the “general welfare,” instead of being basically rigged in favor of those with money and influence. The most recent polls suggest that Congress has the approval of at most one in six Americans, with three in five disapproving.36 The same poll- sters find that 53% of Americans believe the country is going down the “wrong track,” while only 39% believe it is going in the “right direction.”37 Many reasons could be offered to explain this national malaise. My friend Jack Balkin and I offered our own diagnoses (and disagreements) in a recent book, Democracy and Dysfunction.38 Suffice it to say that I located much of the explanation in the sheer fact that the national government was, in some real sense, designed to privilege the status quo by making change immensely difficult. From one perspective, legislative gridlock is a feature and not a bug of the 1787 Constitution. To some degree, it simply does not matter what legislative powers Congress possesses, whether those set out in Article I, Section 8 or added by the Reconstruction Amendments, if the basic structures of the national government make use of those powers inordinately difficult. Let me acknowledge that on this Constitution Day 2019, I persist in desiring a new constitutional convention as is allowed, incidentally, by the text of Article V, although, typically, it provides nary a clue as to how a new convention would actually be organized.39 That itself is one of the great defects of the Constitution. In any event, I think there are more than enough other defects to keep latter-day Framers fully busy. It took the Philadelphians four months from late May until September 17 to draft the document that went to the state conventions for ratification. I actually envision

35 The Federalist No. 1, at 1 (Alexander Hamilton) (Roy P. Fairfield ed., Johns Hopkins Univ. Press 2d ed. 1981) (1966). 36 Polls: State of the Union, RealClearPolitics, https://www.realclearpolitics. com/epolls/latest_polls/state_of_the_union/ (last visited Jan. 6, 2019). 37 Id. 38 Sanford Levinson & Jack M. Balkin, Democracy and Dysfunction (2019). 39 See U.S. Const. amend. V. 388 Levinson that a new convention would last for up to two years, given all of the “lessons of experience” that would have to be debated and absorbed, not to mention the time needed to persuade the country before any ratification procedures that the delegates really know what they are doing and deserve public trust regarding their recommendations and conclusions. Given my earlier writings, I will not rehash all of my arguments about the defects within the existing Constitution. Suffice it to say, one important difference between my first and second books is that in the latter, I reached the conclusion that most people really do not care very much about the “democratic” nature of the Constitution. The central question I address is whether the political system in fact operates to generate a sufficient measure of popular contentment, perhaps even what the Preamble calls “domestic tranquility.”40 In my second book, I conclude that the answer to this question is no. The “crisis of governance” does not so much concern the presence or absence of democratic inputs into the governmental process as, instead, the inadequacy of the outputs generated. As I’ve already suggested, that is one of the areas in which there is in fact substantial agreement between the discontented Right and Left, even if they disagree vehemently on what would constitute desired outputs. I have already made clear my abhorrence of the United States Senate and the fact that it gives an equal say in legislation to Wyo- ming and California, to Vermont and Texas. With regard to the latter, perhaps it is relevant to say that although my partisan inclinations make me more supportive of Vermont Senators Leahy and Sanders than my home state senators Cornyn and Cruz, it is only the blindest of partisanship that could justify giving the roughly 650,000 residents of Vermont equal representation with roughly twenty eight million Texans. Whatever “one-person/one-vote” might mean, this is surely not it! And, frankly, it is irrelevant if the House of Repre- sentatives is more fairly apportioned than the Senate, even when taking gerrymandering into account. The fact is, as Earl Warren recognized in Reynolds v. Sims,41 the very nature of bicameralism is that in order to pass, legislation needs the approval of both houses.

40 U.S. Const. pmbl. 41 See generally Reynolds v. Sims, 377 U.S. 533 (1964). This decision invalidated “little federalism” schemes in almost all of the states by which counties with often wildly disparate populations were given equal representation in state senates. Vol. 12, No. 2 Northeastern University Law Review 389

There is a reason that the Senate has often throughout our history been thought of as the graveyard of legislation, especially legislation involving civil rights. For example, Reconstruction, with its valiant attempt to engage in genuine “regime change” in the defeated states of the Confederacy, in some real sense came to an end with the 1890 Senate filibuster that defeated the so-called Lodge Bill. That would have authorized (and in effect mandated) the use of federal force to guarantee free elections in the South, where an ever-more-invig- orated white ruling class was doing whatever it could to suppress remaining pockets, often quite important, of African-American suffrage and even election of African-Americans to office. Let me conclude my remarks originally delivered in Septem- ber of 2019 not by going through the depressing litany of constitutional problems, but instead by focusing on what has, after all, become the chief constitutional issue of the moment: impeachment.42 Much is being written and debated on television and social media about the meaning, for example, of the “high crimes and misdemeanors” that are apparently required by the Constitution before we can, in effect, fire a President.43 Some of our greatest scholars have jumped into this debate and what they have to say is surely worth attending to. That being said, I confess that I have turned into an adamant critic of the Impeachment Clause inasmuch as it has in effect been captured by the legal profession. The consequence is that we do indeed get tied up in quite esoteric arguments about constitutional interpretation and, for some, the mechanisms of impeachment in 18th century Britain. These are interesting questions, to be sure, but I think they have little, if anything, to do with what ought to be the central issue in our conversation: Do we, as a people, have sufficient confidence in Donald Trump’s competence and character to entrust him with the powers of the modern presidency, which would, I assert, have been unimaginable at the time of the nation’s founding? I believe we would be far better served if the Constitution had a “no-confidence” clause that would, at the very least, comple-

42 As I engage in final revisions, in February 2020, we obviously know how that particular story ended, with a show of stunning cowardice by the Republican majority in the Senate (save for Senator Romney), who fully collaborated with Majority Leader Mitch McConnell’s announced resolve to work hand-in- glove with the Trump defense team. Perhaps that will be the subject of a 2020 Constitution Day address, should I be invited to give one. 43 See U.S. Const. art. II, § 4. 390 Levinson ment the Impeachment Clause, if not out-and-out supplant it. I have offered in my books suggestions as to how a “no-confidence” system might actually work.44 I have even suggested that we might learn from Wisconsin and California, both of which allow their electorates to initiate recalls of governors who have popular legitimacy.45 This “worked” in California, which in effect “fired” Grey Davis in 2002.46 It “failed” in Wisconsin, where Scott Walker prevailed in 2012 against an attempt to displace him (though he was defeated in his bid for re-election in 2018).47 But one might well say that it worked in both states inasmuch as aroused electorates were given the opportunity to weigh in on whether the incumbent governors should remain in office. I am confident that if the Constitution allowed recall, there would already have been an election to determine whether Donald Trump should continue in office. Among other things, incidentally, his prevailing in such an election, should it have occurred, might have served to eliminate the questions about his getting to the Oval Office in the first place only because of the indefensible operation of the Electoral College. It is, to be sure, part of what makes the United States national constitution truly “exceptional,” both among nations of the world and, importantly, the United States itself, once one looks at how states select their governors. But there is no reason to applaud this particular aspect of exceptionalism and many reasons to reject it. No doubt, this suggestion may strike many readers as some mixture of heretical and simply unwise. The former is suggestive of the degree to which we unwisely “venerate” the Constitution and refuse to submit it to the continuing “reflection and choice” that Hamilton had identified as what was truly most significant about the process by which the Constitution came into being. The second, of course, is completely fair comment. As a matter of fact, I am not

44 See Levinson, Framed, supra note 17, at 215–17. 45 Id. at 218–19. 46 See, e.g., Katharine Q. Seelye, THE CALIFORNIA RECALL: THE GOVERNOR; For Gray Davis, Great Fall From the Highest Height, N.Y. Times, Oct. 8, 2003, https:// www.nytimes.com/2003/10/08/us/california-recall-governor-for-gray-davis- great-fall-highest-height.html. 47 See, e.g., Monica Davey & Jeff Zeleny,Walker Survives Wisconsin Recall Vote, N.Y. Times, June 5, 2012, https://www.nytimes.com/2012/06/06/us/politics/ walker-survives-wisconsin-recall-effort.html; Monica Davey, Tony Evers Wins Wisconsin Governor’s Race; Scott Walker Concedes, N.Y. Times, Nov. 7, 2018, https://www.nytimes.com/2018/11/07/us/elections-wisconsin-governor- evers-walker.html. Vol. 12, No. 2 Northeastern University Law Review 391 sure where I would come out on many of the topics I believe merit the kind of discussion they are simply not receiving in a culture that is more inclined to celebrate the Constitution than really to take it seriously by reflecting on its weaknesses as well as its strengths. And perhaps just as importantly, I do not regard all of the defects as equally serious or ominous. For example, I strongly oppose life tenure for Supreme Court justices—there is a good reason that most countries around the world and 49 of the 50 states have rejected it. But, frankly, were I a delegate to the new convention and someone offered me significant revisions of the Senate or, for that matter, -Ar ticle V itself to make it easier to amend the Constitution in the future, in return for sticking with the life tenure that I in fact oppose, I would take the deal in a second. I might even write an op-ed justi- fying it as a “lesser evil” against the prospect of no constitutional reform at all! President Obama was correct, for better or worse, about the need to accept sometimes truly painful compromises as part of living in truly pluralistic societies where we must accommodate, at least to some extent, people whose views and values we might find, at best, questionable, and even, at worst, abhorrent. In any event, I hope that I have complied with the spirit of Constitution Day, especially with regard to the actual model set for us by the Framers, even if, perhaps, I have violated the expectations of at least some of those who voted for Senator Byrd’s legislation in 2004. Even more do I hope that Northeastern will not pay any price for turning over the podium to a critic of the Constitution instead of an endorser of the cheerleading that President Obama, for a variety of reasons, thought it necessary to offer a decade ago and that Presi- dent Trump, perhaps more predictably, repeated in 2019. 392 Tolley

Celebrating the “Idea” of a Written Constitution: A Response to Sanford Levinson’s Constitution Day Lecture 2019

By Michael C. Tolley*

* Associate Professor of Political Science at Northeastern University. My students and I have been reading the provocative works of Professor Sanford Levinson for years. I am grateful to the editors of the Northeastern University Law Review for the opportunity to respond to him here. Vol. 12, No. 2 Northeastern University Law Review 393

In “Celebrating the Founders or Celebrating the Constitu- tion,” Sanford Levinson asks what is worth celebrating—the Found- ers or the Constitution itself? He makes a strong case for celebrating the Founders because they ultimately had the courage to make the difficult decisions and compromises without which there would not have been a Constitution to commemorate. The question “what is worth celebrating on Constitution Day?” and Levinson’s answer, the Founders, led me to think that it is not just the Founders, but the novel ideas they championed that are especially deserving of veneration. One particular idea worth lauding is that of a written constitution as “the supreme law of the land.”1 Though not fully comprehended during the founding period, the idea of coupling a written constitution as supreme law with independent courts would give rise to the institution of judicial or constitutional review which would later help maintain constitutional democracies, both here in the United States and around the globe. America’s greatest contribution to democratic theory and the practice of governing may very well be this idea of coupling a written constitution with the institution of judicial or constitutional review. “Judicial review,” the late, great constitutional scholar Edward S. Corwin once observed, “represents an attempt by the American Democracy to cover its bet.”2 To “cover a bet” is to provide insurance against some future peril.3 An institution capable of covering a nation’s bet on democracy when the democratic institutions and processes falter is thus a valuable insurance policy held by citizens of a democracy. Judicial review, or the power of courts to declare null and void the acts of coordinate branches of the national government and the acts of the state governments that violate the Constitution, is, of course, not explicitly provided for in the Constitution. You would expect to find it in Article III in connection with the discussion of judicial power, but it is absent. Most modern constitution writers do not leave the power of judicial review to chance. The drafters of the South African Constitution, for example, made it clear that this function would be part of the new, post-Apartheid constitution:

1 U.S. Const. art. VI, cl. 2. 2 Edward S. Corwin, Book Reviews, 56 Harv. L. Rev. 484, 487 (1942) (reviewing Benjamin F. Wright, The Growth of American Constitutional Law (1942)). 3 See Richard A. Spears, McGraw-Hill’s Dictionary of American Idioms and Phrasal Verbs 128 (2005). 394 Tolley

“The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional. . . . ”4 To the limited extent that discussions of judicial review occurred at the 1787 Philadelphia Convention, they were in the context of Madison’s proposed executive-judicial council of revision which would review congressional legislation.5 As for the origins of judicial review, I am persuaded by the constitutional historian Jack Rakove’s explanation: “Judicial review is better conceived as an alternative to James Madison’s proposed congressional negative on state laws than to the council of revision with which he hoped to improve the quality of lawmaking and legislation alike.”6 Immediately after Madison’s proposed negative on state laws was rejected, the Convention adopted the Supremacy Clause, which would effectively perform the same task.7 This historical account posits that judicial review was the solution to two problems: (1) how to enforce the supremacy of a constitution over ordinary legislative enactments, and (2) how to keep Congress from encroaching on the states and the states from enacting laws that conflict with the Constitution. It was, thus, on the foundations of the idea of a written constitution as the supreme law of the land, enforced by judges who “shall hold their offices during good behavior, and shall . . . receive . . . compensation, which shall not be diminished during their continuance in office,”8 that the American innovation of judicial or constitutional review rests. The notion that judicial review in American constitutional history began with Chief Justice John Marshall in Marbury v. Madison has been thoroughly debunked elsewhere.9 Judicial review was certainly understood and exercised by state courts operating under the

4 S. Afr. Const., 1996, ch. 8, § 167, cl. 5. 5 See 1 Records of the Federal Convention of 1787, at 93–105 (Max Farrand ed., 1911). 6 Jack N. Rakove, Once More into the Judicial Breach, 72 Geo. Wash. L. Rev. 381, 382 (2003). 7 See 2 Records of the Federal Convention of 1787, at 27–29 (Max Farrand ed., 1911). 8 U.S. Const. art. III, § 1. 9 5 U.S. 137 (1803); see, e.g., Keith E. Whittington, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present 23 (2019); Sanford Levinson, Why I Do Not Teach Marbury (Except to Eastern Europeans) and Why You Shouldn’t Either, 38 Wake Forest L. Rev. 553 (2003). Vol. 12, No. 2 Northeastern University Law Review 395 first state constitutions not long after independence was declared and the colonial charters replaced.10 It was explained by Alexander Hamilton in Federalist No. 78 to be “essential in a limited Constitu- tion”:

By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; . . . Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reserva- tions of particular rights or privileges would amount to nothing.11

The better case for recognizing judicial review’s inception after 1789, the year the U.S. Constitution was put into effect, is probably Hylton v. United States.12 In his opinion in this case, Justice William Paterson wrote: “The question is whether a tax upon carriages be a direct tax? If it be a direct tax, it is unconstitutional, because it has been laid pursuant to the rule of uniformity, and not to the rule of apportionment.”13 Although it is a less intriguing case than Marbury v. Madison, the U.S. Supreme Court’s review of the Carriage Act and unanimous decision that Congress’s tax on carriages was constitutional, conforming to the requirement on indirect taxes in Article I, Section 8, were exercises of judicial review just the same. Although Marbury v. Madison may enjoy an outsized status in American constitutional history, Chief Justice Marshall’s reasoning is noteworthy for its explanation of the logic of judicial review. Judi- cial review, he explains, rests on the idea of a written constitution as

10 Edward Corwin argued that judicial review appeared in independent America in a 1780 Supreme Court of New Jersey case, Holmes v. Walton. See Edward S. Corwin, The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention, 30 Am. Hist. Rev. 511, 521 (1925). This case, which was unreported, is cited in State v. Parkhurst, 9 N.J.L. 427, 445 (1827). Another instance of judicial review exercised by a state court before 1803 includes Whittington v. Polk, 1 H & J 236 (Md. 1802). 11 The Federalist No. 78, at 228 (Alexander Hamilton) (Roy P. Fairfield ed., Johns Hopkins Univ. Press 2d ed. 1981) (1966). 12 3 U.S. 171 (1796). 13 Id. at 176. 396 Tolley

“superior, paramount law.”14 In the words of Chief Justice Marshall:

The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written Constitutions are absurd attempts, on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitu- tions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution, is void.

This theory is essentially attached to a written Con- stitution, and is consequently to be considered by this Court as one of the fundamental principles of our society.15

It is the Founders’ idea of a written constitution as supreme law that I choose to celebrate on Constitution Day. This fundamental principle of America’s constitutional democracy would be widely adopted by constitution makers in countries across the globe.16 Levinson points us to Madison’s Federalist No. 14, quoting at length from the concluding paragraph which encourages the citizens of New York to adopt the proposed Constitu- tion because of its novel innovations:

Happily for America, happily, we trust, for the whole

14 Marbury v. Madison, 5 U.S. 137, 177 (1803). 15 Id. 16 See, e.g., Art. 31, Constitución Nacional (Arg.); Nihonkoku Kenpō [Kenpō] [Constitution], art. 98 (Japan); Grundgesetz für die Bunderepublik Deutschland [GG] [Basic Law] [Constitution], art. 1, 19, 20, 79 (Ger.), translation at http://www.gesetze-im-internet.de/ englisch_gg/index.html. Vol. 12, No. 2 Northeastern University Law Review 397

human race, they pursued a new and more noble course. They accomplished a revolution. . . . They reared the fabrics of governments which have no model on the face of the globe.17

How very prescient Madison was on how far the benefits of this “new and more noble course” would be. The idea of a written constitution as the supreme law of the land coupled with independent courts exercising the power of judicial review has been one of Amer- ica’s most important transnational legal exports. The American idea of entrusting courts with the maintenance of the “higher law” principles embodied in a written constitution spread rapidly after the end of the second World War. In “The Global Spread of Constitu- tional Review,” international law and political science professor Tom Ginsburg explains that the best evidence that this innovation of the American constitutional regime has taken off is the fact that “158 out of 191 constitutional systems include some formal provision for constitutional review.”18 The form judicial review has taken in the countries that have adopted the idea has not always been the same. Some have opted for the American version of “strong-form” judicial review, which empowers courts to set aside or declare null and void acts found to violate the constitution, bill of rights, or some other higher law principles. Once rare, “strong-form” judicial review has gradually become the norm.19 Others, including the United King- dom, New Zealand, and to some extent Canada, retained or opted for “weak-form” judicial review, where the courts’ determination that a particular law is incompatible with the nation’s constitution or statutory bill of rights can be overridden by a subsequent act of

17 The Federalist No. 14, at 28 (James Madison) (Roy P. Fairfield ed., Johns Hopkins Univ. Press 2d ed. 1981) (1966). 18 Tom Ginsburg, The Global Spread of Constitutional Review, in The Oxford Handbook of Law and Politics 81 (Keith Whittington, R. Daniel Keleman, and Gregory A. Caldiera, eds., 2008). 19 See, e.g., Bundes-Verfassungsgesetz [BV] [Constitution] BGBL No. 1/1930, art. 140 (Austria) (granting Constitutional Court authority to rescind laws as unconstitutional); GG, supra note 16, at art. 93 (granting Federal Constitutional Court authority to rule on compatibility of law with Basic Law); Art. 136 Costituzione. [Cost.] (It.) [Constitution] (stating that when Italian court declares constitutional illegitimacy of a law, law ceases to have effect);Const. of Pan. art. 206 (1972) (granting the Supreme Court of Justice the authority to issue binding rulings on the constitutionality of laws); Ustava Republike Slovenije [Constitution], art. 160 (Slovn.) (granting the Constitutional Court power to decide constitutionality of laws). 398 Tolley

Parliament.20 In the case of the United Kingdom, the 1998 Human Rights Act gave courts the power to make “declarations of incompatibility,” but left the matter of altering or repealing the suspect act to Parliament. 21 Some countries, such as France and Germany, permit “abstract judicial review,” which gives courts the power to review challenged acts before they go into effect.22 Other countries require “concrete review,” or the requirement that judicial review only be exercised in real, live cases and controversies in the normal course of litigation.23 And while some countries have centralized the unique function of judicial review in a special, constitutional court, others have left it to courts at all levels of the judicial system.24 The Amer- ican version of strong-form, decentralized, and concrete judicial review has not been adopted in precisely the same way in all places, but the introduction of judicial review in the post-World War II era, even weak-form judicial review, gradually transformed the role of courts world-wide and increased their political significance. In the post-World War II era, “rights review,” that is, the work of courts in enforcing the fundamental rights and liberties often contained in bills of rights, has joined separation of powers and federalism review as a function courts are expected to perform in constitutional democracies.25

20 See Human Rights Act 1998, c. 42 § 4 (UK) (granting courts the power to make declarations of incompatibility, but noting that such declarations are non- binding and do not affect the “validity, continuing operation or enforcement of the provision”); Constitution Act 1986, s 15 (N.Z.) (recognizing Parliament as the country’s supreme legal authority); Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 33 (U.K.) (Canada) (granting Parliament the authority to declare an act of Parliament or of the legislature valid notwithstanding earlier grants of individual freedoms); see also Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707 (2001). 21 Human Rights Act, supra note 20. 22 See Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective 226 (1992); Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 13–14 (2d ed. 1997). 23 See Michael C. Dorf, Abstract and Concrete Review, in Global Perspectives on Constitutional Law 3–14, (Vikram David Amar, Mark V. Tushnet, eds., 2008). 24 See Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases 9–10 (2003). 25 See Miguel Schor, Mapping Comparative Judicial Review, 7 Wash. U. Global Stud. L. Rev. 257, 265 (2008). Vol. 12, No. 2 Northeastern University Law Review 399

In recent years, scholars have developed several theories explaining how courts acquired and managed to keep the power of judicial review, even though it is occasionally used against powerful government institutions. In Judicial Review in New Democracies: Consti- tutional Courts in Asian Cases, Tom Ginsburg argues that in times of political uncertainty, when no party can expect to hold on to power, “all parties will prefer to limit the majority and therefore value mi- noritarian institutions such as judicial review” as a form of insurance against the prospect of future electoral loss.26 In Towards Juristocracy: The Origins and Consequences of the New Constitutionalism, law and political science professor Ran Hirschl argues that political elites, fearing the loss of power, will seek to preserve their hegemony by placing like-minded judges on the bench and empowering them to review and, when appropriate, strike down acts of future governing major- ities.27 The judicial review as political insurance and the hegemonic preservation theory both suggest that judicial review exists because it is, in fact, supported by powerful political actors within the political system. Not all scholars view the expansion of judicial review in the post-World War II era as a positive development. Allowing unelected judges the last word on the legality of action taken by politically accountable governments raises fears of democratic deficit and democratic debilitation. Despite the concerns associated with the counter-majoritarian difficulty and warnings about judicial supremacy, the advent of judicial review and the increased political significance of courts in many countries around the globe have undoubtedly produced positive outcomes. By upholding the constitutional provisions and basic fundamental rights that make democratic life possible, courts exercising judicial review can be understood to be advancing and promoting democracy. Toward the end of his lecture, Levinson makes a strong case for holding another constitutional convention to address “the genuine threats posed to us should there be a shift among the various tectonic plates embedded in the Constitution.”28 That the Constitu- tion itself is vague on how a new convention would be organized,

26 Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases 25 (2003). 27 Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism 12 (2004). 28 Sanford Levinson, Celebrating the Founders or Celebrating the Constitution: Reflections on Constitution Day, 2019, 12 Ne. U. L. Rev. 375, 386 (2020).. 400 Tolley he points out, “is one of the great defects of the Constitution.”29 Levinson maintains a more sanguine view than I of how this new convention would turn out in our hyper-partisan, increasingly po- larized nation today. For that reason, I prefer to place my money on what has long been America’s preferred method of constitutional change—change through judicial interpretation. In his famous speech “The Spirit of Liberty,” delivered in New York’s Central Park at a time of war when the survival of democracies were at stake, Judge Learned Hand told his audience of 1.5 million people that the essence of liberty was an idea that must be kept alive in the hearts of the people:

I often wonder whether we do not rest our hopes too much upon constitutions, upon law, and upon courts. These are false hopes;. . . Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. . . .30

That Levinson would agree with this point is clear from his admonition that “we unwisely ‘venerate’ the Constitution.”31 Celebrating the idea of a written constitution—and not the Constitution itself— may remind us that the best hope for constitutions is that they embody the democratic ideas and values of the people being constituted, and that these ideas must live like the spirit of liberty in the hearts of citizens and government officials alike. For the American innovation to work, there must be belief in rule of law and respect for the independence of courts. Scholars examining how courts maintain their independence and uphold the rule of law, often against powerful forces determined to interfere, have found that the formal, legally defined provisions for judicial independence are often not enough to ensure independence in fact. Just as important to the maintenance of judicial independence are the unwritten norms and traditions, rooted in political culture, that protect the autonomy of judicial action from undue influence of powerful political actors who have lost the “spirit of liberty.”

29 Id. at 387. 30 Gunther Gerald, Learned Hand: The Man and the Judge 547–52 (1994). 31 Levinson, supra note 28, at 390. Vol. 12, No. 2 Northeastern University Law Review 401

Who Celebrates What? A Response to Professor Levinson

By Claudia E. Haupt*

* Associate Professor of Law and Political Science, Northeastern University. Many thanks to Jack Balkin, Michael Tolley, and Dan Urman for helpful comments and conversations, and to Cam Haigh for valuable research assistance. Thanks also to the editors of the Northeastern University Law Review for their kind invitation to respond to Professor Levinson. 402 Haupt

In his 2019 Constitution Day remarks, Sanford Levinson sets out to “explain what [he is] willing to celebrate and what, in contrast, [he] increasingly wish[es] to question.”1 He is willing to celebrate the Framers who, in his assessment, “were truly concerned citizens of a new and extremely vulnerable United States of America.”2 He cautions, however, against “thoughtless praise of our founding document,” and he encourages deeper thinking about what it means to celebrate founders and innovators.3 In so doing, Levinson contrasts Constitution Day remarks by President Barack Obama, who struck an unmistakably reverent tone, with Justice Thurgood Marshall’s fa- mously critical assessment on the occasion of the bicentennial in 1987.4 A related broader question might be this: what is it about constitutions, or constitutionalism, that is worth celebrating? A look abroad is instructive. I will limit myself to considering a non-exhaustive sample of contributions by scholars, judges, and politicians on the occasions of the 50th, 60th, and 70th anniversaries of the Ger- man Basic Law (Grundgesetz), Germany’s constitution. I choose this particular timeframe (1999-2019) not only to cabin the scope of my inquiry for purposes of this response, but also because it encompasses the Basic Law’s significant post-reunification anniversaries. Celebrations of the Basic Law focus on neither the text of the document itself nor on the framers, making comparison with the United States particularly interesting. In celebrating the Basic Law, rather, the existence of a stable constitutional democracy and its values and institutions is the object of celebration. And, indeed, the idea of “constitutional patriotism” encapsulates much of what is deemed celebration-worthy.5 The origins of what became the German Basic Law were initially drafted by an expert commission at Herrenchiemsee in Bavar- ia.6 The Parliamentary Council (Parlamentarischer Rat), whose dele-

1 Sanford Levinson, Celebrating the Founders or Celebrating the Constitution: Reflections on Constitution Day, 2019, 12 Ne. U. L. Rev. 375, 379 (2020). 2 Id. at 380. 3 Id. at 383. 4 Thurgood Marshall, The Constitution’s Bicentennial: Commemorating the Wrong Document? 40 Vand. L. Rev. 1337 (1987). 5 See infra notes 62–68 and accompanying text. 6 David P. Currie, The Constitution of the Federal Republic of Germany 9 (1994); see also Donald P. Kommers & Russell A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany 7–8 (2d ed. 2012). Vol. 12, No. 2 Northeastern University Law Review 403 gates were elected by the new state parliaments, then met in Bonn in 1948 to debate the Basic Law.7 The Basic Law entered into effect as the provisional constitutional document for West Germany in 1949.8 On October 3, 1990, German unity was achieved through accession of the Eastern states pursuant to (now-superseded) Article 23 of the Basic Law.9 Despite its original design as a provisional charter, the Basic Law “had come to assume the character of a document framed to last in perpetuity.”10 Although reunification would have provided an opportunity for revisions to account for legal, social, and economic differences in East and West, no major changes occurred.11 In 1999, ten years after the fall of the Berlin Wall, the Basic Law turned 50. The SMU Law Review published a symposium issue to commemorate the anniversary with contributions by German judges and German and American scholars.12 Indeed, with respect to the process of reunification under the Basic Law, and particularly the role of the Federal Constitutional Court itself, Federal Consti- tutional Court Judge Udo Steiner took a somewhat critical view. He quoted a prominent member of the former East German civil rights movement, who “once said,: ‘[With Reunification] we expected to get justice, but what we got was the rule of law.’”13 Donald Kommers, a preeminent American scholar of Ger- man constitutional law, offered “a fifty year assessment.”14 He quoted John Quincy Adams on the fiftieth anniversary of the United States Constitution, who “was able to report that the Constitution had indeed survived the test of time and that ‘its results have sur- passed the most sanguine anticipations of its friends.’”15 Kommers concluded that “[t]he same judgment could be made about the Basic Law in 1999, fifty years after its birth.”16 Kommers focused primarily on the distinctions between the Basic Law and the Wei-

7 Currie, supra note 6, at 9. 8 Kommers & Miller, supra note 6, at 42. 9 Id. 10 Id. 11 Id.; see also Udo Steiner, The Basic Law and the Process of Reunification, 53 SMU L. Rev. 461, 461 (2000). 12 Symposium, Fifty Years of German Basic Law: The New Departure for Germany, 53 SMU L. Rev. 427 (2000). 13 Steiner, supra note 11, at 463 (alternations in original). 14 Donald P. Kommers, The Basic Law: A Fifty Year Assessment, 53 SMU L. Rev. 477, 477 (2000). 15 Id. at 492. 16 Id. 404 Haupt mar constitution, particularly the structural provisions as well as inclusion of a bill of rights.17 He identified as “[p]erhaps the most daring institutional innovation of the Basic Law . . . the creation of the Federal Constitutional Court, a judicial tribunal empowered to resolve constitutional disputes between branches and levels of government and to review the constitutionality of federal and state law.”18 (This assessment supports Michael Tolley’s focus on judicial review as a celebration-worthy feature.)19 Likewise, then-President of the Federal Constitutional Court, Jutta Limbach, noted that “[i]n speeches and articles regarding the Basic Law’s fiftieth anniversary, the Federal Constitutional Court has been praised sumptuously.”20 Indeed, Limbach concluded, “The history of the Federal Constitu- tional Court’s impact is a story of success.”21 With respect to the role of the Court, Steiner was somewhat more skeptical, especially in light of the process of reunification, the topic of his contribution. Ultimately, Steiner concluded that the jurisprudence of the Federal Constitutional Court might have contributed to “the inner unification of Germany.”22 However, he ended his observations on a critical note, “quoting the Minister of Finance of one of the new Länder: ‘Next time we have a Reunification, we’ll make a better job of it.’”23 Ernst Benda, former President of the Federal Constitutional Court, examined the Basic Law’s break with the past through the lens of the human dignity provision of Article 1.24 He noted that questions arose regarding the Basic Law’s continued relevance upon reunification.25 “If the constitution is to answer the needs not only of the past but of the present and of the future as well,” he assert-

17 Id. at 478–81. 18 Id. at 481. 19 Michael C. Tolley, Celebrating the “Idea” of a Written Constitution: A Response to Sanford Levinson’s Constitution Day Lecture 2019, 12 Ne. U. L. Rev. 392 (2020). 20 Jutta Limbach, The Role of the Federal Constitutional Court, 53 SMU L. Rev. 429, 429 (2000). 21 Id. at 441. The Federal Constitutional Court was created by enabling statute after the Basic Law was adopted and commenced its work in 1951. See Kommers & Miller, supra note 6, at 9–41 (discussing the enabling statute and the Court’s institutional structure and procedure). 22 Steiner, supra note 11, at 476. 23 Id. 24 See Ernst Benda, The Protection of Human Dignity (Article 1 of the Basic Law), 53 SMU L. Rev. 443 (2000). 25 Id. at 451 (“When unification came in 1990, it was said that the Basic Law, forty years old at the time, would be ‘too old’ to serve as the constitution of the united country.”). Vol. 12, No. 2 Northeastern University Law Review 405 ed, “it must be flexible. It should be able to adapt to the changing circumstances.”26 Interestingly from a comparative perspective, he proceeded to reject United States-style “original intent” and, citing Justice Brandeis, instead insisted on the ability of the constitution to evolve.27 He explained that, “Article 1 was the answer to the violations of human dignity known during the time of the Nazi regime. These dangers do not exist anymore, at least in principle, and hopefully they will not reappear.”28 In order to ensure the continued enforcement of Article 1’s goals, however, he demanded consideration of “future risks . . . no matter whether the creators of the Basic Law have, or could have, foreseen them in 1949.”29 To do so, he suggested, it is necessary “to re-examine what the object of protection is in Article 1.”30 Ten years later, in a special issue of the German Law Journal on the occasion of the Basic Law’s 60th anniversary in 2009, another illustrious set of authors contributed their reflections.31 The starting point was a uniformly positive reception: “Today, not only the political establishment is united in praising the Grundgesetz. The scholarly assessment also has been mostly positive.”32 By contrast, “the political system based on the Basic Law, and the jurisprudence of

26 Id. 27 Id. at 451–52 (“The idea of ‘original intent’ discussed in the United States during the Reagan administration misunderstands the idea of the Constitution as a ‘living organism.’ The Constitution, in the words of Justice Brandeis, is ‘capable of growth, of expansion and of adaptation to new conditions. Growth implies changes . . . political, economic, and social. . . . Because our Constitution possesses the capacity of adaptation, it has endured as the fundamental law of an ever-developing people.”). 28 Id. at 452. 29 Id. Of special importance to Benda were “the completely new questions concerning the manipulation of human genes.” Id. These questions could not have been foreseen by the framers of the Basic Law, hence “it was not their ‘original intent’ to answer these problems.” Id. Nonetheless, he argued against leaving the answer to the political process. Rather, he suggested that it is irrelevant for the application of Article 1 “whether any particular form of danger existed in 1949.” Id. 30 Id. 31 See Susanne Baer, Christian Boulanger, Alexander Klose and Rosemarie Will, The Basic Law at 60 – Introduction to the Special Issue, 11 Ger. L.J. 1, 1 (2010). In addition to the Basic Law’s 60th anniversary, “the first democratic constitution (Paulskirchenverfassung of 1849) was promulgated 160 years ago; the 1919 Weimar Constitution would have turned 90.” Id. 32 Id. 406 Haupt the Constitutional Court . . . has often met with intense criticism.”33 Despite such criticism, the interaction between the Federal Consti- tutional Court and the political branches was also deemed generally successful, as described by a former federal Minister of Justice.34 The Basic Law itself was declared “in historical perspective, a remarkable success.”35 Among the praiseworthy aspects this group of commentators chose to highlight were the resilience of the Basic Law, based on “various features that distinguish it from other examples of modern constitutionalism,”36 including the federalism and separation of powers design, as well as the social state principle, militant democracy, the constitutional understanding of religious neutrality, and the Basic Law’s open posture toward international as well as European Union (EU) law. Of special import, as already seen in the comments on the Basic Law’s 50th anniversary, remained the constitution’s commitment to fundamental rights, which one scholar called “the normative heart of the Basic Law.”37 Contributions to the 60th anniversary collection particularly praised Basic Law’s protections of human dignity in Article 1 and equality in Article 3.38 Some authors—such as, notably, former Federal Constitu- tional Court Justice Dieter Grimm—attributed the longevity and success of the Basic Law to the ease with which the constitution can be amended.39 Indeed, as Grimm noted, the Basic Law of 2009 “is not identical with the Constitution that was enacted on 23 May 1949. In the sixty years of its existence, it has been amended fifty-four times.”40 And if it is the text of a constitution that determines its identity, “then Germany today has a constitution different from the one adopted in 1949.”41 In Grimm’s assessment, constitutions must change to remain relevant, and considering the identity of the con-

33 Id. 34 See Brigitte Zypries, The Basic Law at 60 – Politics and the Federal Constitutional Court, 11 Ger. L.J. 87, 97–98 (2010). 35 Matthias Mahlmann, The Basic Law at 60 – Human Dignity and the Culture of Republicanism, 11 Ger. L.J. 9, 9 (2010). 36 Id. 37 Id. 38 See id. (commending the Basic Law’s commitment to human dignity); Susanne Baer, The Basic Law at 60 – Equality and Difference: A Proposal for the Guest List to the Birthday Party, 11 Ger. L.J. 67, 67 (2010) (commending the Basic Law’s commitment to equality). 39 See Dieter Grimm, The Basic Law at 60 – Identity and Change, 11 Ger. L.J 33 , 33 (2010). 40 Id. 41 Id. Vol. 12, No. 2 Northeastern University Law Review 407 stitution also means considering its ability to change.42 In addition to textual amendments, Grimm noted, changes by interpretation that occur outside of textual change must be considered as well.43 In 2019, the German Basic Law turned 70 years old. The International Association of Constitutional Law Blog published an online symposium to mark the occasion.44 As in previous years, the themes covered included praise for the constitution’s federalism and separation of powers design,45 the importance of fundamental rights,46 and the Basic Law’s relationship to European integration.47 Interestingly, after noting the Basic Law’s general success,48 the in- troductory post asked the same question this Constitution Day collection poses: “What is being celebrated and why?”49 The answer

42 Id. (“Constitutions that resist such adaptations are in danger of losing their legal relevance and of being circumvented. This is why the possibility of change must be recognized when the identity of constitutions is considered.”). 43 Id. at 34. 44 Symposium, 70 Years of the German Basic Law, IACL-AIDC Blog, https://blog- iacl-aidc.org/70-years-of-the-german-basic-law (last visited Mar. 1, 2020). 45 Nathalie Behnke, Consensual Governance – The German Governmental System, IACL-AIDC Blog (Oct. 3, 2019), https://blog-iacl-aidc.org/70-years-of- the-german-basic-law/2019/10/3/consensual-governance-the-german- governmental-system; Jens Woelk, The Federal Council: The Secret to the Institutional Success of the German Federal System, IACL-AIDC Blog (Oct. 8, 2019), https:// blog-iacl-aidc.org/70-years-of-the-german-basic-law/2019/10/8/the-federal- council-the-secret-to-the-institutional-success-of-the-german-federal- system; Gregor Kirchhof, The Financial Constitution of the Basic Law, IACL-AIDC Blog (Sept. 26, 2019), https://blog-iacl-aidc.org/70-years-of-the-german- basic-law/2019/9/26/the-financial-constitution-of-the-basic-law. 46 Michael Goldhammer, More Than Just Rights – The Basic Law and Its Fundamental Rights Chapter, IACL-AIDC Blog (Oct. 1, 2019), https://blog-iacl-aidc. org/70-years-of-the-german-basic-law/2019/10/1/more-than-just-rights- the-basic-law-and-its-fundamental-rights-chapter. 47 Annegret Eppler, The German Basic Law and the Process of European Integration, IACL-AIDC Blog (Oct. 10, 2019), https://blog-iacl-aidc.org/70-years-of- the-german-basic-law/2019/10/10/the-german-basic-law-and-the-process- of-european-integration. 48 Francesco Palermo, Editorial – ‘70 Years of the German Basic Law’ Symposium’, IACL-AIDC Blog (Sept. 24, 2019), https://blog-iacl-aidc.org/70-years-of- the-german-basic-law/2019/9/24/editorial-70-years-of-the-german-basic- law-symposium (“For seven decades the Basic Law has accompanied the democratic, social, political, economic and legal development of Germany. As the constitution of a successful country, it is rightly commended for its achievements. And in fact, this anniversary has been widely celebrated, in Germany and abroad. . . . Over seven decades, the performance of the Basic Law has been exceptionally good.”). 49 Id. 408 Haupt combined the expectations of the Basic Law’s framers with the promise of constitutionalism more broadly: “It has achieved all the main goals the fathers and mothers of the constitution wanted to produce: a stable government, a social liberal democracy, the highest protection of fundamental rights, a cohesive federal system and a sound economy.”50 Moreover, in light of current pressures on constitutions,51 the Basic Law is considered to be of “an extraordinary comparative significance, being looked at with interest by scholars and constitution-makers from all over the world.”52 In a way, the German experience combines optimism placed in the constitutional project with deep skepticism: of the power of constitutions to constrain political power,53 of the ability to find common ground within a constitutional framework,54 and of the ability to break with the past in a meaningful way through constitutional means,55 to only name a few examples. Despite its assertedly successful performance in light of this skepticism, neither the text of the original document itself nor its framers are typically the object of veneration. Extended treatment of the “mothers and fathers of the Basic Law” is notably absent in the small sample of contributions sur- veyed. And in German legal, and certainly public, discourse, they are a largely obscure cast of characters.56 The most notable exception is, perhaps, Konrad Adenauer, erstwhile mayor of Cologne, who, after serving as chair of the Parliamentary Council, became the first Chancellor of the Federal Republic of Germany.57 Even scholars such

50 Id. 51 See generally Constitutional Democracy in Crisis? (Mark A. Graber, Sanford Levinson & Mark Tushnet eds., 2018) (examining worldwide current threats to constitutional democracy). 52 Palermo, supra note 48. 53 See, e.g., Grimm, supra note 39, at 33–34 (discussing the Weimar Constitution). 54 See Kommers & Miller, supra note 6, at 47 (“German constitutional scholars often speak of the steering, integrating, and legitimizing functions of the constitution, as if to suggest a more perfect bonding between text and polity.”). 55 Id. at 43 (“The Basic Law marks a radical break with Germany’s past.”); Baer et al., supra note 31, at 3 (noting that the Basic Law “was a symbolic document, an ostentatious break with the past, which included a failed democracy – the Weimar Republic – and a morally repugnant political regime – National Socialism – from which the nascent state had to distance itself.”). 56 See, e.g., Kim Lane Scheppele, Jack Balkin Is An American, 25 Yale J. L. & Human. 23, 38 (2013) (noting that “those who participated in the Parliamentary Council are rarely referred to by name at all.”). 57 Id. Vol. 12, No. 2 Northeastern University Law Review 409 as Kommers who want to draw attention to the framers of the Basic Law do so in vague terms, speaking of “[t]he sixty-one men and four women who framed the Basic Law.”58 Only rarely do their names appear, and even more seldom are their intentions examined when assessing current developments.59 Of course, one reason there might be less emphasis on the framers is that the Allies had a not insignif- icant hand in the drafting of the Basic Law.60 Nonetheless, “[a]llied intervention did not succeed in branding the Basic Law with the stain of an instrument imposed by the occupying powers.”61 One distinctive aspect in the German context involves the idea of “constitutional patriotism” (Verfassungspatriotismus), an idea that Kim Lane Scheppele and Jan-Werner Müller have called “one of the most attractive yet ill-defined ideas in modern political theory.”62 Scheppele and Müller explain that “the concept of constitutional patriotism designates the idea that political attachment ought to center on the norms, the values, and more indirectly, the procedures of a liberal democratic constitution.”63 So understood, it “promises a form of solidarity distinct from both nationalism and cosmopolitan- ism.”64 On the occasion of the Basic Law’s 50th anniversary, former Constitutional Court President Limbach asked, “Does Germany’s pride in the Basic Law already show its people are patriots of the constitution?”65 In a slightly different inflection—in the context of discussing the Basic Law’s relationship to EU law—Grimm asserted

58 Kommers, supra note 14, at 477. 59 For a rare exception, see Juliane Kokott, The Basic Law at 60 – From 1949 to 2009: The Basic Law and Supranational Integration, 11 Ger. L.J. 99, 99 (2010) (juxtaposing the view of the “founding fathers and mothers” on European integration with contemporary constitutional jurisprudence). Moreover, Kokott quotes Carlo Schmid on the importance of supranational engagement. Id. at 113–14. Likewise, Baer, supra note 38, at 70, mentions the four female members of the Parliamentary Council, Elisabeth Selbert, Friederike Nadig, Helene Wessel, and Helene Weber, focusing in particular on the contributions of Selbert in connection with Article 3, passim. 60 Currie, supra note 6, at 10; see also Kommers, supra note 14, at 477 (noting that the Basic Law was drafted “with the consent of the three occupying powers”). 61 Currie, supra note 6, at 10 (quoting former Constitutional Court Justice Helmut Steinberger); see also Baer et al. supra note 31, at 1 (noting that “the Allies gave the effort an additional nudge.”). 62 Kim Lane Scheppele & Jan-Werner Müller, Constitutional Patriotism: An Introduction, 6 Int’l J. Const. L. 67, 67 (2008). 63 Id. 64 Id. 65 Limbach, supra note 20, at 430. 410 Haupt that “‘Constitutional Patriotism’ is a German phenomenon.”66 On the occasion of the 70th anniversary, one scholar of comparative constitutional law noted “The Basic Law replaced the nationalistic pride with a constitutional patriotism, following the formula coined by Dolf Sternberger and made popular by Jürgen Habermas.”67 For- mer German President Joachim Gauck noted in his farewell address in 2017 that his own constitutional patriotism does not only stem from intellectual insight, but equally from emotional connection.68 What is celebrated when a constitution is celebrated, then, is deeply contextual. This, of course, comes as no surprise to students of comparative constitutional law. In Germany, it turns out, neither the original text of the constitutional document itself nor the framers are at the center of celebration. In this regard, the German experience illustrates a third option in addition to Levinson’s alternatives of celebrating the document or celebrating the founders.

66 Grimm, supra note 39, at 45. Grimm uses the term to explain the limits EU law imposes limits on the Basic Law. He asserts that while EU law limits all member states’ national constitutions, the effect “may be more noticeable in Germany than elsewhere since no other member state has attributed a similar level of importance to its constitution.” Id. at 44–45. 67 Palermo, supra note 48. As Scheppele & Müller, supra note 62, at 68, explain: “The idea was born in postwar West Germany. The political philosopher Dolf Sternberger, a pupil of Hannah Arendt’s, coined it in the late 1970s; it was subsequently taken up by Jürgen Habermas, and through his work became better known in the English-speaking world.” 68 Joachim Gauck, Ger. President, What Should Our Country Be Like? (Mar. 23, 2012) (transcript available online at http://www.bundespraesident.de/ SharedDocs/Reden/EN/JoachimGauck/Reden/2017/170118-What-should- our-country-be-like.html). Vol. 12, No. 2 Northeastern University Law Review 411

The Fall of Grand Juries

By Nino C. Monea*

* Captain, United States Army, Judge Advocate General’s Corps. Views expressed in the Article are the author’s alone and do not represent those of the Department of Defense. Thank you to James Tatum, Brian Walsh, Captain Cherell Gross, and Dr. Perry Francis for their excellent suggestions to improve this Article. 412 Monea

Table of Contents I. Introduction �� 413 II. A History of Grand Juries in America �� 416 A. The English Grand Jury Tradition �� 416 B. Colonial Grand Juries �� 418 C. Grand Juries in the Early American Government �� 421 D. Storm Clouds Form Over Grand Juries ��427 III. Reasons for the Decline of Grand Juries �� 434 A. Reputation Concerns: An Anonymous Accusation Could Destroy a Man’s Honor �� 435 B. Criminal Due Process Concerns: Too Hard on the Innocent, Too Easy on the Guilty �� 439 C. Too Cumbersome, Expensive, and Inefficient �� 445 D. Government Has Become More Robust, Replacing the Need for Grand Juries �� 451 E. Urbanization Transforms Society to the Detriment of Grand Juries �� 456 IV. Conclusion �� 460 Vol. 12, No. 2 Northeastern University Law Review 413

Grand juries once played a preeminent role in American civic life. Today, they do little more than ratify indictments sought by prosecutors. How did this happen? This Article explores that question, primarily relying on period newspapers and constitutional convention transcripts. It looks at the pervasive role grand juries held and the anti-grand jury movement that arose in the mid-19th century. To understand the anti-grand jury fervor, this Article examines five explanations of why grand juries fell from grace: (1) they failed to protect the innocent or punish the guilty, (2) they facilitated anonymous character assassinations, (3) they were too expensive and cumbersome for a tax-conscious society, (4) as government professionalized, there was less need for citizen panels, and (5) urbanization meant that grand juries could not as easily represent their communities.

I. Introduction For as long as the grand jury has existed, there have been calls for its abolition.1 As far back as 1792, for example, a Pennsylva- nia judge warned of the dangers of unbridled grand juries.2 Thomas Jefferson complained that the hated Federalists were turning grand juries into “inquisitors on the freedom of speech” and “from a legal to a political engine.”3 In the main, however, grand juries were held in much higher regard. They were guardians of individual liberties, mediators between the government and the governed, and a vital part of our political infrastructure. But this prominence was not to last. As this article will show, around the middle of the 19th century, the country was swept by a national movement to abolish or weaken grand juries. This mindset extended to the courts. In 1870, the United States Supreme Court did nothing to stop a law that permitted government confiscation of private property without grand juries.4 The plaintiff’s attorney argued that the lack of grand juries, among other problems, did not comport with due process of law guaranteed by the Constitution.5 Without even bothering to analyze whether grand jury rights had been violated, the Court upheld the law.6 This came after a long line

1 Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 Cornell L. Rev. 260, 314 (1995). 2 Id. at 314 n.244. 3 Letter from Thomas Jefferson to Peregrine Fitzhugh (June 4, 1797),in 29 The Papers of Thomas Jefferson 415–19 (Barbara B. Oberg ed., 2002). 4 Tyler v. Defrees, 78 U.S. (11 Wall.) 331 (1870). 5 Id. at 344, 347. 6 Id. at 349. 414 Monea of cases holding that grand juries were not necessary in maritime law.7 The culmination of the grand jury abolition movement came in 1884, when the Supreme Court struck a grievous blow to grand juries. Hurtado v. California involved a defendant who argued that his death sentence—based on a prosecution without a grand jury—was a violation of the Fourteenth Amendment’s guarantee of “due process of law.”8 The Court concluded it was not. It said that because grand juries were explicitly mentioned in the Fifth Amendment, they could not fall into the nebulous term “due process of law.”9 By so doing, it relegated grand juries to second-class constitutional status. The Hurtado decision concluded a debate that had been rag- ing in the country throughout the prior decade: did states have the power to abolish grand juries, given that the Fifth Amendment guaranteed them? In the 1870s and before, many citizens argued that states lacked the power,10 or at least thought it an open question,11 including some who believed that grand juries were foolish.12 As the Quad-City Times explained: “If grand juries are to be abolished it is obvious that the constitution of the United States must first be amended. The whole tenor of that instrument hedges in the right of trial by jury and protects the rights of the individual.”13 Even after

7 See id. at 33 n.8 (citing cases in the syllabus). 8 110 U.S. 516, 519–20 (1884). 9 Id. at 534. 10 See, e.g., Reports of the Proceedings and Debate of the Convention of 1821 Assembled for the Purpose of Amending the Constitution of the State of New York 164 (Albany, E & E Hosford 1821) (statement of Mr. Dodge); Grand Jury, St. Ind. Sentinel, Mar. 28, 1850, at 2, https://www.newspapers.com/image/161541611/; Grand Jury Business, Albany Democrat, Mar. 10, 1871, at 1, https://www.newspapers. com/image/336153033/; No Imp Diment, S.F. Examiner, Nov. 21, 1871, at 2, https://www.newspapers.com/image/457829563/; The Grand Jury System, Warrenton Banner, Aug. 1, 1871, at 2, https://www.newspapers.com/ image/126338009/. 11 Query, Muscatine Wkly. J., Feb. 23, 1872, at 3, https://www.newspapers. com/image/542001628/. 12 See, e.g., Grand Jury Business, supra note 10. 13 Grand Juries: The Legislature Has No Power to Abolish Them, Quad-City Times, Jan. 31, 1880, at 2, https://www.newspapers.com/image/301092526/; see Our Constitution, Neb. St. J., Jan. 17, 1879, at 1, https://www.newspapers.com/ image/309671868/; The Grand Jury System, supra note 10; Intelligencer, Apr. 24, 1879, at 2, https://www.newspapers.com/image/73829033/; Streator Free Press, Aug. 7, 1880, at 4, https://www.newspapers.com/ image/542787047/. Vol. 12, No. 2 Northeastern University Law Review 415 the Supreme Court proclaimed that state grand juries were optional, the Arizona Champion insisted that the federal constitution forbade states from eliminating them.14 It was not alone, as constitutional convention delegates made the same arguments.15 This was not a unanimous position,16 but it may well have been strong enough to make some legislators hesitant about doing away with grand juries altogether. It is easy to quibble with the merits of the Hurtado decision. As the dissent points out, if the right to grand juries is not fundamental to due process of law because it is expressly mentioned in the Fifth Amendment, neither are the rights against double jeop- ardy, self-incrimination, or uncompensated eminent domain.17 It is more difficult to analyze why the Court ruled as it did. What about the state of society caused the Court to declare grand juries were not essential to ordered liberty? This Article aims to understand why America soured on the grand jury. To do so, it focuses on period newspaper articles, state constitutional conventions, and other sources. It proceeds in three Parts. Part I sets the stage by recounting the history of grand juries in America, pre- and post-Revolution. This includes how they operated in England, which helps shed light on how the framers would have known them. Part II explores five primary reasons grand juries fell off the national pedestal. These are: (1) concerns that grand juries lacked procedural safeguards for defendants, and let guilty parties go free; (2) fears that the secrecy of grand jury proceedings would allow

14 Ariz. Champion, Nov. 1, 1884, at 1, https://www.newspapers.com/ image/41073404/. 15 1 Official Report of the Proceedings and Debates in the Convention Assembled at Frankfort, on the Eighth Day of September, 1890, to adopt, amend, or change the constitution of the state of Kentucky 684 (Frankfurt, E. Polk Johnson 1890) [hereinafter Kentucky 1890 Convention Proceedings] (Mr. Hopkins calling proposal to abolish grand juries in the state a “direct violation of the language of the fifth article of the amendments of the Constitution ofthe United States”); 1 Proceedings and Debates of the Constitutional Convention of Idaho, 1889, at 260 (I.W. Hart ed., Caxton Printers, Ltd. 1912) [hereinafter Idaho 1889 Convention Proceedings] (Mr. Reid calling proposal to allow prosecution by information “a plain, open, direct violation of the constitution of the United States”). 16 See 1 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana 129 (Offset Press 1935) (1850) [hereinafter 1850 Indiana Convention Proceedings] (statement of Mr. Pettit). 17 Hurtado v. California, 110 U.S. 516, 547–48 (1884) (Harlan, J., dissenting). 416 Monea witnesses to anonymously lodge false accusations and destroy their neighbors’ reputations; (3) allegations that grand juries were too expensive and inefficient when compared to judges; (4) government professionalization and laws becoming more complex, meaning that it was harder for grand jurors to understand the law without assistance from lawyers and accordingly easier for lawyers to replace grand juries; and (5) urbanization, meaning we have lost small, intimate communities that grand juries were made to thrive in. Part III concludes by offering some reflections on the modern state of the grand juries. It summarizes the new attacks on grand juries in the 20th and 21st centuries. And it ends by arguing that whatever problems exist with grand juries today, they were caused by the limitations imposed on the institutions, not the people serving as jurors.

II. A History of Grand Juries in America

A. The English Grand Jury Tradition We inherited many of our legal traditions from England; grand juries are no exception. In light of this fact, it is worth looking at how the grand jury operated in pre-Revolutionary England to understand how the framers would have understood the purpose of grand juries. The venerable Sir William Blackstone wrote “so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbours.”18 The importance of Blackstone can hardly be overstated. Between 1687 and 1788, “not a single book that could be called a treatise intended for the use of professional lawyers was published in the British Colonies and the American States”19 according to El- don James. Because of this dearth of literature, Harvard Law Dean Roscoe Pound “concluded that, at the time of the Revolution, ‘[f]or practical purposes Coke’s Second Institute and Blackstone are the repositories of the law.’”20 Then as now, an indictment by a grand jury was tantamount

18 2 William Blackstone, Commentaries on the Laws of England *306 (Philadelphia, J.B. Lippincott Co., 1893) (1753), https://www. nationallibertyalliance.org/files/docs/Books/Blackstone%20vol%202.pdf. 19 Richard A. Danner, Oh, the Treatise!, 111 Mich. L. Rev. 821, 825 (2013). 20 Id. (quoting Roscoe Pound, The Formative Era of American Law 9 (1938)). Vol. 12, No. 2 Northeastern University Law Review 417 to a conviction.21 But English grand juries did far more than indict. At the dawn of the 18th century, English grand juries worked alongside justices of the peace, high-sheriffs, Knights of the Shire, and other county officials.22 Together, they pledged to the king that they would put their “Lives and Fortunes” on the line to “vindicate and maintain his undoubted Right and Title to these Nations.”23 Anoth- er grand jury teamed up with judges, at the request of the mayor, to arrest nuns who were operating an illegal Nunnery.24 They even certified the prices of wheat, rye, barley, malt, oats, white peas, grey ditto, and beans.25 Sometimes, the grand jury went out of its way to laud public officials. One expressed its “entire approbation” at the conduct of its representative in Parliament.26 A Dublin grand jury praised several legislators for their “manly and disinterested Conduct in Parlia- ment.”27 Such was commonplace. Presentments—charging decisions made without a prosecutor—were also commonplace. Take, for example, Francis Higgins, who was charged by a grand jury for being a “Common Disturber of her Majesty’s Peace, and a Sower of Se- dition and groundless Jealousies amongst Her Majesty’s Protestant Subjects.”28 Or Henry Wristle, who was accused of “keeping an unlawful Seminary in his House for Instruction of Youth in Pernicious

21 Niki Kuckes, Retelling Grand Jury History, in Grand Jury 2.0: Modern Perspectives on the Grand Jury 125, 135 (Anthony Fairfax, Jr., ed., 2011). 22 See Dublin, Newcastle Courant: With News Foreign & Domestick, Oct. 10, 1711, at 3, https://www.newspapers.com/image/404108020; see also Post Man & Hist. Acct., Oct. 11, 1701, at 2, https://www.newspapers. com/image/35727397. 23 Post Man & Hist. Acct., Oct. 18, 1701, at 2, https://www.newspapers. com/image/35727403 (spelling modernized). 24 Dublin, Sept. 9, Newcastle Courant: With News Foreign & Domestick, Sept. 29, 1712, at 10–11, https://www.newspapers.com/ image/404019841. 25 Newcastle, Jan. 13, Newcastle Wkly. Courant, Jan. 13, 1770, at 2, https:// www.newspapers.com/image/404011176/. See also Leeds, January 19, Leeds Intelligencer & Yorkshire Gen. Advertiser, Jan. 19, 1773, at 3, https://www.newspapers.com/image/404017660/?terms=grand%2Bjury. 26 London, April 1, Va. Gazette, June 7, 1770, at 2, https://www.newspapers. com/image/40482187/. 27 Dublin, April 9, Pa. Gazette, June 27, 1771, at 2, https://www.newspapers. com/image/39405389/. 28 Dublin, Newcastle Courant: With News Foreign & Domestick, Oct. 17, 1711, at 1, https://www.newspapers.com/image/404108199/ (spelling modernized). 418 Monea

Tenents of Religion contrary to those of the Established Church.”29 The structure of English grand juries was also different. In the tenth century, the king selected members of the grand jury.30 The twelfth century had knights picking men for the grand jury from each county.31 By the time of Blackstone, sheriffs were the ones who selected grand jurors.32 Jurors were supposed to be property owners and were usually drawn from the upper crust.33

B. Colonial Grand Juries Pre-Revolutionary grand juries held the same vaunted role in American civic life as their counterparts across the pond. In 1630, Puritan refugees settled the Massachusetts Bay Colony.34 By 1635, they instituted their first grand jury.35 This makes grand juries far older than most other American institutions. Grand juries were a political office in America, with grand jurors usually elected by their communities.36 Colonial gentlemen who served on grand juries saw it as a sacrifice that their high station in life required, and some even served without a salary.37 But much like many political offices, seats on grand juries were passed down from father to son, allowing family dynasties on grand juries.38 Many in the patrician class believed that such hoarding of grand jury seats was essential because “the better sort” were “less liable to temp- tations, less fearful of the frowns of power, [and] may reasonably be supposed of more improved capacities than those of an inferior station.”39

29 Newcastle Courant: With News Foreign & Domestick, Mar. 26, 1712, at 4, https://www.newspapers.com/image/404008545. 30 Harry S. Martin, III, Zavier Medina & Twyla Tranfaglia, The Grand Jury: A Selected Bibliography with Exhibit Notes 1 (1975) 31 Blackstone, supra note 18, at *302. 32 Id. 33 Id. 34 Massachusetts Bay Colony, Encyclopaedia Britannica, https://www. britannica.com/place/Massachusetts-Bay-Colony (last visited May 11, 2019). 35 Mary Costello, Grand Juries, CQ Researcher (Nov. 7, 1973), https://library. cqpress.com/cqresearcher/document.php?id=cqresrre1973110700. 36 3 State of New Jersey Constitutional Convention of 1947, at 833 (1951) [hereinafter N.J. 1947 Convention]; Barbara Clark Smith, Beyond the Vote: Limits of Deference in Colonial Politics, 3 Early Am. Stud. 341, 348 n.15 (2005). 37 Gordon S. Wood, The Radicalism of the American Revolution 83–84 (1992). 38 Id. at 45, 84. 39 Id. at 106. Vol. 12, No. 2 Northeastern University Law Review 419

As one would expect from those holding political position, grand juries expressed a patriotic zeal. For example, a grand jury in the city and county of Philadelphia criticized the tax on tea and the use of the tax revenue to finance British domination of America.40 It went on to lay out a laundry list of complaints about the Crown not unlike the Declaration of Independence, including the “unbound- ed and uncontroulable Powers” to collect tariffs, hauling men accused of treason off across the sea for trial, maintaining standing armies, and instituting admiralty courts in which judges were unen- cumbered by juries.41 It continued by pledging it would “promote a Union with the other Colonies” to ensure they received their constitutional rights and subvert the British revenue collection scheme.42 This missive was reprinted around the country,43 and the “people’s panel enjoyed wide public support” throughout the colonies.44 Colonial grand juries were also significant in the judgment of individual cases. Presentments were plentiful, and so too were acquittals.45 Colonial grand juries not only refused to indict for violations of English law,46 they often simply refused to indict. In the lead up to the Revolution, newspaper accounts provide scores of refusals to indict on ordinary crimes. These include political crimes, like a printer criticizing government officials,47 but also non-political

40 John Gibson, Pa. Gazette, Sept. 27, 1770, at 3, https://www.newspapers. com/image/39402060/. 41 Id. 42 Id. 43 John Gibson, Hartford Courant, Oct. 16, 1770, at 1, https://www. newspapers.com/image/233681107; John Gibson, Md. Gazette, Oct. 11, 1770, at 2, https://www.newspapers.com/image/41041133. 44 Costello, supra note 35. 45 Today, the federal grand jury indictment rate hovers around 99 percent. Gordon Griller, Modern Grand Jury (Part II), Nat’l Ctr. of St. Cts., https:// www.ncsc.org/sitecore/content/microsites/trends/home/Monthly-Trends- Articles/2014/The-Modern-Grand-Jury-Part-II.aspx (last visited May 1, 2019). Hopefully, this is because prosecutors are bringing stronger cases, but it more likely means that grand jurors are not properly empowered to disagree with prosecutors. 46 See Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 424 (2012); see also Christopher Waldrep, Jury Discrimination: The Supreme Court, Public Opinion, and a Grassroots Fight for Racial Equality in Mississippi 20 (2010). 47 St. Christophers, March 14, 1772, Md. Gazette, Oct. 1, 1772, at 1, https:// www.newspapers.com/image/41042974/. 420 Monea ones like horse thievery, grand larceny, burglary, or murder.48 This followed the tradition of English grand juries pushing back against government charges.49 Because colonial grand juries refused to indict for English and political crimes, the British perceived them as a threat to their imperial power. But whenever the British attempted to weaken grand juries, the colonists responded by vilifying their efforts. John Adams criticized a British loyalist serving as a Superior Court judge for how he had “harrangued the Grand Juries in every County.”50 He also fretted that the extension of admiralty courts was “the most grievous Innovation of all,” because in those courts, “one Judge pre- sides alone!” A writer under the name Britannicus—a Roman em- peror who conquered the English Isle—wrote that “[o]ur ancestors were indeed so justly jealous of their liberties, and so careful to arm against any unjust prosecution of the crown, that they fixed grand juries as an advanced guard.”51 Just because grand juries refused to indict for some political and English crimes does not mean that grand juries were afraid to punish. A Philadelphia grand jury presented an alderman and former mayor for not only refusing to punish “a Person guilty of profane Swearing,” but even worse, setting “an Evil Example by swearing himself.”52 A Mississippi grand jury presented a judge.53 In contrast, prosecutions by information—where charges are

48 Pa. Packet, July 6, 1772, at 3, https://www.newspapers.com/ image/39614889/; Williamsburg, April 22, Rind’s Va. Gazette, Apr. 22, 1773, at 3, https://www.newspapers.com/image/40482613/; Williamsburg, June 16, Va. Gazette, June 16, 1774, at 2, https://www.newspapers.com/ image/40481847/; Williamsburg, October 22, 1772, Rind’s Va. Gazette, Oct. 22, 1772, at 2, https://www.newspapers.com/image/40482511/. 49 Kevin K. Washburn, Restoring the Grand Jury, 76 Fordham L. Rev. 2333, 2342–43 (2008). 50 John Adams, [December 1765], Founders Archives, https://founders. archives.gov/documents/Adams/01-01-02-0009-0005 (last visited Feb. 20, 2020). 51 Britannicus, To a Juryman, Pa. Gazette, Mar. 8, 1770, at 5, https://www. newspapers.com/image/39398536/. 52 William Bell, Presentment of the Philadelphia Grand Jury, 3 January 1745, in 3 The Papers of Benjamin Franklin 9–12 (Leonard W. Larabee, ed., 1961), :// founders.archives.gov/?q=%22grand%20jury%22&s=1111311111&sa=&r =5&sr=#BNFN-01-03-02-0002-fn-0012-ptr. 53 H.R. Journal, 12th Cong., 1st Sess. 265 (1812), http://memory. loc.gov/cgi-bin/ampage?collId=llhj&fileName=008/llhj008. db&recNum=263&itemLink=D?hlaw:11:./temp/~ammem_6Q05:: %230080264&linkText. Vol. 12, No. 2 Northeastern University Law Review 421 filed without a grand jury—were described as a “national grievance” and a “very great encroachment upon our laws and liberties.”54 Sev- eral years later, after the burning of a British boat, authorities announced that an admiralty court would look into it. A Virginia paper said that this decision revealed that the British did not trust the people; if it did, it would have let a grand jury do it.55

C. Grand Juries in the Early American Government Despite the historical, cultural, and political significance of grand juries in the colonies, when the federal Constitution was passed, it contained no protections for grand juries. Like most rights, the founding fathers did not think it necessary to include it in the Constitution.56 This caused an uproar throughout the young nation. At the Massachusetts convention debating whether to ratify the Constitution, one delegate bemoaned the lack of local trial juries and said this “horrid” situation was “still more dark and gloomy, as there is no provision made in the Constitution to prevent the attorney-general from filing information against any person, whether he is indicted by the grand jury or not.”57 In response, another delegate argued that even if there were no constitutional protections for grand juries, prosecutors would still not resort to prosecution by information.58 John Adams remarked that the grand jury’s role was so “evidently beneficial as to need no comment of mine.”59 The Massachusetts convention ultimately recommended several amendments to the Constitution, including language that was substantially similar to the Fifth Amendment’s grand jury clause.60 Other states followed suit.61 After Congress passed the Bill of Rights, it went to the states. Of the first ten legislatures that con-

54 Britannicus, supra note 51. 55 Boston, December 17, Rind’s Va. Gazette, Jan. 21, 1773, at 2, https://www. newspapers.com/image/40482560/. 56 James Madison, for instance, called rights provisions “parchment barriers” that would prove least effective “on those occasions when its control is most needed.” Sanford Levinson, America’s Other Constitutions: The Importance of State Constitutions for Our Law and Politics, 45 Tulsa L. Rev. 813, 818 (2013). 57 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 110 (Jonathan Elliot ed., n.p. 1787), http://oll-resources.s3.amazonaws.com/titles/1906/1314.02_Bk.pdf (statement of Mr. Holmes). 58 Id. at 113 (statement of Mr. Gore). 59 Id. at 132. 60 Id. at 177. 61 See, e.g., id. at 326, 328. 422 Monea sidered the matter, every single one of them adopted the grand jury amendment.62 States did not simply ask the federal government to protect grand juries; the earliest state charters were a vote of confidence in grand juries. Of the founding 13 states, 11 contained guarantees for grand juries in their original constitutions or declarations of rights.63 Of these, most of them ensured a grand jury in all cases, not only infamous crimes like the U.S. Constitution. In these early constitutions, they did not always explicitly mention grand juries, but guaranteed the right of defendants to “be informed of the accusation against him” or something to that effect. This amounts to the same thing as a grand jury indictment.64 Of the of the two states that did not mention indictment rights—New Jersey and South Carolina—the latter’s was only meant as a transitory document to separate from Great Britain.65 Within two years, the Palmetto State constitution guaranteed that no freeman could be imprisoned but by “the judgment of his peers or by the law of the land.”66 The phrase “law of the land”—imported from the Magna Carta—was well understood to include grand juries.67 As

62 Id. at 339–40. 63 Ga. Const. of 1777, art. XLV; Conn. Const. of 1818, art. I, § 9; see Md. Declaration of Rights of 1776, art. XIX; N.Y. Const. of 1777, art. XIII. See generally Del. Declaration of Rights of 1776, § 14; Pa. Const. of 1776, Declaration of Rights § 9; Mass. Const. of 1780, pt. I, art. XII; N.H. Const. of 1776, pt. I, art. XV, § 15; Va. Declaration of Rights of 1776, § 8; N.C. Declaration of Rights of 1776, arts. 7, 8; R.I. Const. of 1843, art. I, §§ 7, 10. New York’s constitution referred to “law of the land” which readers of that era would have understood that phrase to include grand juries. Jones v. Robbins, 74 Mass. 329, 343 (1857). 64 See Robbins, 74 Mass. at 342. Technically it could also mean prosecution by information. Id. But information was rarely used in that era, so it probably referred to indictment. Joseph Story, Commentaries on the Constitution of the United States § 1780 (Boston, Hilliard, Gray & Co. 1833); cf. 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution, supra note 57, at 113 (Mr. Gore noting that while Massachusetts did not explicitly mention indictments, it did not use information). 65 South Carolina State Constitution, 1776 & 1778, Rollins C. (Sept. 27, 2012), https://web.archive.org/web/20190514171403/http://social.rollins.edu/ wpsites/hist120/2012/09/27/south-carolina-state-constitution-1776-1778/. 66 S.C. Const. of 1778, art. XLI. 67 Robbins, 74 Mass. at 343 (citing Lord Coke, Joseph Story, and James Kent). See also Journal of the House of Representatives of the State of Vermont 398 (Montpelier, Freeman Steam Printing & Bindery 1880), [hereinafter Vermont House Journal] (governor vetoing bill limiting Vol. 12, No. 2 Northeastern University Law Review 423 for New Jersey, it still had grand juries, even if not constitutionally ordained,68 and explicitly added grand jury protections in the state’s second constitution.69 Even after the original 13, grand juries continued to command respect. Of the next 14 states that joined the Union, from 1792 to 1844, 13 of them protected grand juries.70 If anything, this batch of 13 was stronger than the last. They did not merely mention the right of the accused to know the nature of the accusation against them. They often forbade any means of prosecution other than indictment or explicitly forbade prosecution by information. Many states that revised their constitutions in this period also maintained or strengthened grand jury rights.71 At the federal level, when grand juries were discussed in the halls of Congress for the first few decades, it was most commonly not to disparage or weaken them—and not even to praise them. It was to listen to them. This is because, though the Fifth Amendment guaranteed grand juries in the context of criminal cases, 18th century grand juries did far more than indict. Before the modern bureaucratic state was created, grand juries performed many functions that we now expect professional government officials to handle.72 American territories had grand juries advocating for them before they earned full representatives in Congress. In the Louisiana Terri- tory, a grand jury told Congress that inhabitants ought to have their own tax- and lawmaking powers, judges ought to reside in the ter-

grand juries because it violated the state constitution’s guarantee of due process “by the laws of the land,” citing courts of New York, Massachusetts, Tennessee, Maine, North Carolina, Vermont, and the United States.). 68 New Jersey’s first constitution did not mention any right to an indictment of any sort, but does reference indictments. N.J. Const. of 1776, art. XV. Grand juries were present in the state’s early days. See Dare v. Ogden, 1 N.J. L. 91, 108 (1791). 69 N.J. Const. of 1844, art. I, § 9. 70 See Ala. Const. of 1819, art. I, § 12; Ark. Const. of 1836, art. II, § 11; Fla. Const. of 1838, art. I, § 16; Ill. Const. of 1818, art. VIII, § 10; Ind. Const. of 1816, art. I, § 12; Ky. Const. of 1792, art. XII, §§ 10–11; Me. Const. art. I, § 7; Mich. Const. of 1835, art. I, § 10; Miss. Const. of 1817, art. I, § 12; Ohio Const. of 1802, art. VIII, § 10; Tenn. Const. of 1796, art. XI, § 14; Vt. Const. ch. 1, art. X (amended 1924 and 1974). 71 See, e.g., Del. Const. of 1831, art. I, § 8; Ky. Const. of 1799, art. X, § 11; Miss. Const. of 1832, art. I, § 12; N.J. Const. of 1844, art. I, § 9; N.Y. Const. of 1821, art. VII, § 7; Pa. Const. of 1838, art. IX, § 9; Tenn. Const. of 1835, art. I, § 14. 72 See Richard D. Younger, The People’s Panel: The Grand Jury in the United States 2 (1963). 424 Monea ritory, and more equitable provisions ought to be made concerning claims to lands.73 An Indiana Territory grand jury put in a claim for the Island of Michilimackinac74 (it lost out to Michigan). A territorial grand jury in Detroit, Michigan complained about the non-execution of a federal law in the Territory, the passage of bad laws in Congress, and misconduct by Augustus Woodward, judge of the territorial supreme court.75 Grand juries across the country had something of a direct line to their federal legislatures. They would issue reports or reso- lutions on pressing questions of public policy of the day, and Con- gress would frequently hear them out and refer their complaints to committee for further deliberation. These sorts of complaints could result in changes in governmental policy.76 Examples are legion. When Congress was deciding whether to provide more funding to poorhouses in the District of Columbia, it looked to proceedings from a grand jury session to determine that previous appropriations had been insufficient.77 So too did Congress look to the capital’s grand jury on the topic of establishing a peni- tentiary system, the juvenile justice system, and criminal courts.78

73 H.R. Journal, 12th Cong., 1st Sess. 274 (1812), http://memory. loc.gov/cgi-bin/ampage?collId=llhj&fileName=008/llhj008. db&recNum=272&itemLink=D?hlaw:65:./temp/~ammem_ PUhS::%230080274&linkText=1. 74 H.R. Journal, 7th Cong., 1st Sess. 108 (1802), https://memory. loc.gov/cgi-bin/ampage?collId=llhj&fileName=004/llhj004. db&recNum=106&itemLink=D?hlaw:31:./temp/~ammem_ UMCH::%230040108&linkText=1. 75 H.R. Journal, 12th Cong., 1st Sess. 326–27 (1812), http:// memory.loc.gov/cgi-bin/ampage?collId=llhj&fileName=008/ llhj008.db&recNum=324&itemLink=D?hlaw:57:./temp/~ammem_ PUhS::%230080326&linkText=1. 76 E.g., Benjamin Franklin et al., Order of the Mayor and Aldermen oncerning the Constabulary and Watch, 7 July 1752, Founders Online, https://founders. archives.gov/?q=%22grand%20jury%22&s=1111311111&sa=&r=10&sr= (last visited Mar. 10, 2020) (noting how a grand jury successfully petitioned the legislature to reform the city watch); Tunkhannock Republican, Feb. 19, 1873, at 3, https://www.newspapers.com/image/302596736/ (noting how the grand jury recommended the court should refuse of grant liquor licenses, and the judge complied with them). 77 H.R. Journal, 27th Cong., 1st Sess. 7 (1841), http://memory.loc.gov/cgi- bin/ampage?collId=llhb&fileName=027/llhb027.db&recNum=42. 78 S. Journal, 11th Cong., 2d Sess. 433 (1810), http:// memory.loc.gov/cgi-bin/ampage?collId=llsj&fileName=004/ llsj004.db&recNum=420&itemLink=r?ammem/hlaw:@ field(DOCID+@lit(sj004496)):%230040422&linkText=1; Vol. 12, No. 2 Northeastern University Law Review 425

Congress could count on grand juries to provide suggestions for infrastructure projects. Whether it was post offices, town halls, customhouses, or courthouses—especially courthouses—some inquest was nettling for it.79 Improving courthouses was an ever-popular topic for grand juries to petition Congress about, perhaps because they held their meetings in them.80 On broader questions of public policy, grand juries also sent their thoughts to Congress. When the Georgia legislature failed to support Congress’s effort to lay a 5 percent tariff, a Chatham County grand jury chastised the state legislators for subverting an effort to shore up public credit and reduce the debt.81 A presentment of the

H.R. Journal, 31st Cong., 1st Sess. 977 (1950), http:// memory.loc.gov/cgi-bin/ampage?collId=llhj&fileName=045/ llhj045.db&recNum=976&itemLink=D?hlaw:17:./ temp/~ammem_6Q05::%230450977&linkText=1; H.R. Journal, 25th Cong., 2d Sess. 264–65 (1838), http:// memory.loc.gov/cgi-bin/ampage?collId=llhj&fileName=032/ llhj032.db&recNum=263&itemLink=D?hlaw:24:./ temp/~ammem_6Q05::%230320264&linkText=1 (using grand jury opinion to show “necessity for the erection of a new jail and a lunatic asylum in this city”). 79 S. Journal, 33rd Cong., 1st Sess. 147 (1854), http://memory.loc. gov/cgi-bin/ampage?collId=llsj&fileName=045/llsj045.db&recNu m=146&itemLink=D%3Fhlaw%3A49%3A.%2Ftemp%2F~amm- em_PUhS%3A%3A%230450148&linkText=1 (customhouse, post office, and courthouse); S. Journal, 24th Cong., 1st Sess. 171 (1836), http://memory.loc.gov/cgi-bin/ampage?collId=llsj&fileName=025/ llsj025.db&recNum=170&itemLink=D?hlaw:32:./ temp/~ammem_6Q05::%230250171&linkText=1 (courthouse); S. Journal, 36th Cong., 1st Sess. 236 (1859), http://memory. loc.gov/cgi-bin/ampage?collId=llsj&fileName=051/llsj051. db&recNum=17&itemLink=D?hlaw:51:./temp/~ammem_ PUhS::%230510019&linkText=1 (courthouse); S. Journal, 24th Cong., 1st Sess. 236 (1836), http://memory.loc. gov/cgi-bin/ampage?collId=llsj&fileName=025/llsj025. db&recNum=235&itemLink=D?hlaw:46:./temp/~ammem_ YAq8::%230250237&linkText=1 (courthouse); S. Journal, 33rd Cong., 1st Sess. 393 (1854), http://memory.loc. gov/cgi-bin/ampage?collId=llsj&fileName=045/llsj045. db&recNum=392&itemLink=D?hlaw:59:./temp/~ammem_ PUhS::%230450394&linkText=1 (town hall / courthouse). 80 Grand juries throughout America met in courthouses. Leslie Berger & Austin Sarat, The Grand Jury 58–59, 79 (2000); See Richard D. Younger, The People’s Panel: The Grand Jury in the United States, 46 J. Crim. L. & Criminology 73 (1963). 81 Letter from William Samuel Johnson to Roger Sherman (Apr. 20, 1785), in 22 Letters of Delegates to Congress, 1774-1789, 347–50 (Paul H. Smith 426 Monea grand jury of St. John’s and Leigh Read Counties in the Florida territory expounded “the necessity of extending a sea-wall at St. Augus- tine.”82 The Franklin County, Pennsylvania, grand jury prayed that the importation of spirits may be banned.83 And the Babarras Coun- ty, North Carolina, grand jury offered its thoughts on an embargo and asked permission to export their sur-plus produce if it could be done without undermining national independence.84 Beyond the legislative branch, grand juries would also corre- spond with the president. After George Washington issued a proclamation of neutrality as to the war between Britain and France, a grand jury from Sussex County, Delaware, wrote him to praise his “wise and patriotic exertions for the public Welfare” and to pledge its support to him “at all times against the machinations of enemies of good Government.”85 Washington later told Delaware’s governor that he felt “peculiar pleasure” from the “constant and steady support of the late Grand Jury of Sussex County.”86 Relatedly, the grand jury of Prince George’s County, Maryland praised John Adams for his efforts to avoid a full-scale war with France during his administration.87 Learned treatises continued to exalt grand juries for years to come. James Kent praised the “genius and masculine vigour” of ju-

ed., 1995). 82 S. Journal, 27th Cong., 2d Sess. 342 (1842), http://memory. loc.gov/cgi-bin/ampage?collId=llsj&fileName=033/llsj033. db&recNum=341&itemLink=D?hlaw:18:./temp/~ammem_ YAq8::%230330343&linkText=1. 83 S. Journal, 19th Cong., 1st Sess. 121 (1826), http:// memory.loc.gov/cgi-bin/ampage?collId=llsj&fileName=015/ llsj015.db&recNum=120&itemLink=D?hlaw:27:./ temp/~ammem_6Q05::%230150121&linkText=1. 84 S. Journal, 10th Cong., 2d Sess. 313–14 (1808), http://memory. loc.gov/cgi-bin/ampage?collId=llsj&fileName=004/llsj004. db&recNum=303&itemLink=D?hlaw:29:./temp/~ammem_ YAq8::%230040305&linkText=1. 85 Letter from the Grand Jurors of Sussex County, Delaware to George Washington, in 13 The Papers of George Washington 379–80 (Christine Sternberg Patrick ed., 2007), https://founders.archives.gov/ documents/Washington/05-13-02-0251. 86 Id. 87 H.R. Journal, 5th Cong., 2d Sess. 292 (1798), http://memory. loc.gov/cgi-bin/ampage?collId=llhj&fileName=003/llhj003. db&recNum=289&itemLink=D?hlaw:40:./temp/~ammem_ YAq8::%230030291&linkText=1. Vol. 12, No. 2 Northeastern University Law Review 427 ries.88 Joseph Story gushed that grand juries “perform most important public functions; and are a great security to the citizens against vindictive prosecutions, either by the government, or by political partisans, or by private enemies.”89 Thomas Cooley wrote that trial procedures—including grand juries—were “[p]erhaps the most important of the protections to personal liberty.”90 The reverence for grand juries during this time was also exemplified by the fact that Congress passed up opportunities to weaken grand juries. Representative James Bowlin introduced a far-reaching amendment that, among other things, would prevent grand juries from being summoned without a written application by the district attorney of that district.91 It was voted down.92 And when Congress passed a law for piracy on the high seas, it specifically stated they would be “tried and judged by grand and petit juries,” rather than trying to use admiralty law as an excuse to deny defendants these protections.93

D. Storm Clouds Form Over Grand Juries America’s love affair with grand juries would not last. Over time, anti-grand jury forces marshalled. Critics had a few choice words for grand juries. The venerable institution was decried as “Grand humbugs,”94 “perfectly useless,”95 and as a “cumbersome, corrupt blotch upon the body politic.”96 In their operation, they were “secret, sneaking, cowardly, inquisitorial, mean, vicious, thoroughly bad, in spirit and results.”97 Its very existence was “pestilential and

88 James Kent, Commentaries on American Law 352 (1826). 89 Story, supra note 64, at 658. 90 Thomas Cooley, Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 308 (1871). 91 H.R. Journal, 30th Cong., 1st Sess. 498–99 (1848), http:// memory.loc.gov/cgi-bin/ampage?collId=llhj&fileName=043/ llhj043.db&recNum=497&itemLink=D?hlaw:70:./temp/~ammem_ PUhS::%230430498&linkText=1. 92 Id. at 504–05. 93 19 Journals of the Continental Congress, 1774-1789, at 355 (1781). 94 Grand and Petit Jury’s, Oshkosh Democrat, Aug. 16, 1850, at 1, https:// www.newspapers.com/image/38648996/. 95 In Assembly, Com. Advertiser & J., Jan. 21, 1842, at 3, https://www. newspapers.com/image/264140427/. 96 William Welch, Letter to the Editor, Letter from William Welch, Esq.—A Series of Reforms Suggested, Wis. St. J., Sept. 5, 1859, at 2, https://www.newspapers. com/image/396578350/. 97 Atchison Daily, Feb. 2, 1883, at 2, https://www.newspapers.com/ 428 Monea blighting”98 and “the one dark spot upon our glorious judicial system.”99 Sometimes lawyers were the driving force behind the grand jury abolition movement. “It has long been a favorable idea with lawyers to devise some means to get rid of a Grand Jury,” speculated The Prompter, since that would mean more cases would go to trial, and thus more legal fees for the lawyers who argued them.100 At certain state conventions, lawyers were the ones leading the charge for abolition.101 One British judge, cited in American debates, said “I do not know one single argument in favor of the Grand Jury system.”102 Sometimes lawyers were not advocating for abolition. To illustrate, at Oregon’s constitutional convention, one delegate claimed that lawyers and judges were the only ones defending grand juries.103 The Minnesota Bar Association unanimously rejected a proposal to abolish the grand jury in 1884.104 A survey of St. Louis lawyers in 1879 found them evenly divided on whether to abolish.105 Ultimate- ly, the lawyers on the Supreme Court who wrote the California v. Hur- tado decision did the most damage, casting hundreds of years of the American grand jury tradition as a mere ancillary right. The effect of this was quickly evident: by the time of World War I, legal circles

image/109356156/. 98 1850 Indiana Convention Proceedings, supra note 16, at 148. 99 Proceedings in the Constitutional Convention, Chi. Trib., Apr. 23, 1870, at 1, https://www.newspapers.com/image/349539766/. 100 The Prompter, Our Constitution, Neb. St. J., Jan. 17, 1879, at 1, https://www. newspapers.com/image/309671868/. 101 For example, at Pennsylvania’s 1872 constitution convention, there were several attempts to get rid of the grand jury. 1 Debates of the Convention to Amend the Constitution of Pennsylvania 95, 145, 202 (Harrisburg, Benjamin Singerly 1873). The delegates leading the charge were lawyers. Abram Douglas Harlan, Pennsylvania Constitutional Convention 1872 and 1873: Its Members and Officers and the Result of their Labors 27, 79, 84 (Philadelphia, Inquirer Book & Job Print 1873). A group of 48 lawyers also petitioned that constitutional convention to abolish the grand jury. Abolition of the Grand Jury, Daily News, Apr. 24, 1873, at 1, https://www.newspapers.com/image/514037442/. 102 Grand and Petit Jury’s, supra note 94. 103 The Constitutional Convention, Wkly. Or. Statesman, Sept. 1, 1857, at 2, https://www.newspapers.com/image/114362449. 104 New Ulm Rev., Oct. 22, 1884, at 2, https://www.newspapers.com/ image/201673166/. 105 Abolish the Grand Jury, St. Louis Post-Dispatch, Feb. 20, 1879, at 3, https:// www.newspapers.com/image/137650672/. Vol. 12, No. 2 Northeastern University Law Review 429 were generally opposed.106 John Decker has noted that the anti-grand jury movement gained steam after Hurtado.107 But it may also be said that the anti-grand jury movement set the stage for Hurtado. Indeed, 15 years before the case was decided, the Cadiz Sentinel wrote that there were burgeoning grand jury abolition movements in New Hampshire, Massachusetts, Connecticut, New York, Pennsylvania, Virginia, Lou- isiana, Michigan, and Vermont—all of which had “every prospect of success.”108 Other papers wrote about how the grand jury abolition movement had the wind at its back.109 By 1871, Cooley observed that various states had substituted indictment with prosecutions by information.110 In the ten years prior to Hurtado, there were at least 35 proposals to abolish or weaken grand juries from legislatures, constitutional conventions, or governors in 18 states and Congress.111 These

106 Costello, supra note 35. 107 John F. Decker, Legislating New Federalism: The Call for Grand Jury Reform in the States, 58 Okla. L. Rev. 341, 347 (2005). 108 Cadiz Sentinel, Dec. 7, 1859, at 2, https://www.newspapers.com/ image/339530982/. 109 Abolish the Grand Jury, supra note 105; General News Condensations, Morning Oregonian, Jan. 25, 1872, at 1, https://www.newspapers.com/ image/9646006/ (citing “a growing sentiment throughout the country in favor of this change” to abolish the grand jury); The Jury System, Public Ledger, Aug. 10, 1872, at 2, https://www.newspapers.com/image/145328251/ (observing a grand jury abolition movement had sprung up in Pennsylvania). 110 Cooley, supra note 90, at 309. 111 43 Cong. Rec. 4,440 (1874); The Ohio Legislature, Wheeling Daily Reg., Jan. 28, 1876, at 1, https://www.newspapers.com/image/466390947/; Opposed to Grand Juries, Daily News, Mar. 28, 1877, at 1, https://www. newspapers.com/image/515191254/; Lyceum Last Evening, Reno Gazette-J., Feb. 6, 1878, at 3, https://www.newspapers.com/image/147510172/; The Constitutional Convention, Seattle Post-Intelligencer, July 9, 1878, at 2, https://www.newspapers.com/image/333586672/; Convention Notes, Petaluma Wkly. Argus, Oct. 18, 1878, at 2, https://www.newspapers. com/image/283379025/; St. Paul Globe, Jan. 12, 1879, at 4, https:// www.newspapers.com/image/85288975/; The Grand Jury System, Star Trib., Jan. 23, 1879, at 1, https://www.newspapers.com/image/178828564/; News in Brief, Indep.-Rec., June 19, 1875, at 1, https://www.newspapers.com/ image/524704030/; Constitutional Amendment, St. Joseph Wkly. Gazette, Jan. 30, 1879, at 2, https://www.newspapers.com/image/245017753/?; Affairs of State, Chi. Trib., Mar. 11, 1875, at 2, https://www.newspapers.com/ image/349271648/; The Legislature, Streator Free Press, Feb. 10, 1877, at 3, https://www.newspapers.com/image/542803636/; Vacant Chairs, Inter Ocean, Feb. 12, 1879, at 3, https://www.newspapers.com/image/32561755/; The State Capital, Inter Ocean, Mar. 14, 1879, at 2, https://www.newspapers. 430 Monea proposals came from California to Vermont, and, in many states, the effort to abolish grand juries became something of a biannual spec- tacle. In Iowa and Indiana, there were five separate attempts to do in grand juries during this period. Not every proposal was successful, but the direction of the public mood was clear. When Iowa put its proposal to the voters, it passed resoundingly by a vote of approximately 73,000 to 30,000.112 In 1884, the year of Hurtado, grand juries were long-maligned institutions. A search of 12,000 newspapers—including half a billion pages of content—from 1700 to 2019 for the phrase “abolish grand jury” reveals over 2,800 returns. In that database, the phrase first

com/image/35064011/; Illinois Legislature, Ottawa Free Trader, May 3, 1879, at 4, https://www.newspapers.com/image/215010319/; Grand Juries, Alton Evening Telegraph, Jan. 25, 1881, at 3, https://www. newspapers.com/image/16266402/; Brevities, Rock Island Argus, Feb. 20, 1883, at 4, https://www.newspapers.com/image/413377956/; Indiana in the Senate, Chi. Trib., Jan. 13, 1875, at 5, https://www.newspapers. com/image/466286388/; Republic, Mar. 18, 1879, at 2, https://www. newspapers.com/image/128050477/; Indianapolis, Republic, Feb. 25, 1881, at 1, https://www.newspapers.com/image/128062018/; Legislative Notes, Indianapolis News, Jan. 23, 1885, at 4, https://www.newspapers.com/ image/35041652/; Misdemeanors, How the Legislature Revolutionized Criminal Proceedings, Tennessean, Apr. 19, 1879, at 1, https://www.newspapers.com/ image/118822456/; From the State Capital, Des Moines, Feb. 4, ’74, Muscatine Wkly. J., Feb. 6, 1874, at 2, https://www.newspapers.com/image/541994011/; General and Personal, Leavenworth Daily Com., Jan. 28, 1876, at 1, https:// www.newspapers.com/image/425155260/; Capital Punishment in Iowa, Inter Ocean, Mar. 2, 1878, at 5, https://www.newspapers.com/image/32586400/; General Local Items, Cairo Bull. Jan. 30, 1880, at 4, https://www.newspapers. com/image/145388610/; Omaha Daily Bee, Nov. 20, 1884, at 5, https:// www.newspapers.com/image/466024803/; Times-Picayune, Feb. 17, 1880, at 2, https://www.newspapers.com/image/27318585/; Legislature of Vermont, Daily J., Oct. 15, 1880, at 1, https://www.newspapers.com/ image/401519631/; Legislature, Star Trib., Feb. 10, 1874, at 3, https:// www.newspapers.com/image/178703891/; The Legislature, St. Paul Globe, Feb. 2, 1881, at 2, https://www.newspapers.com/image/79763295/; The Governor’s Message, Wkly. Ariz. Miner, Jan. 15, 1875, at 2, https://www. newspapers.com/image/39780648/; Arizona: Legislative Proceedings, Record- Union, Feb. 9, 1881, at 3, https://www.newspapers.com/image/42180679/; Telegraphic: The Twelfth Territorial Legislature, Wkly. Republican, Jan. 26, 1883, at 2, https://www.newspapers.com/image/168520657/; The Grand Jury System, Neb. St. J., May 28, 1875, at 2, https://www.newspapers.com/ image/309629739/; Red Cloud Chief, Jan. 19, 1883, at 4, https://www. newspapers.com/image/73685254/; Daily Herald, Sept. 18, 1883, at 2, https://www.newspapers.com/image/419557488/. 112 Perry Pilot, Dec. 17, 1884, at 5, https://www.newspapers.com/ image/36920734/. Vol. 12, No. 2 Northeastern University Law Review 431 crops up in 1842, but does not pick up real steam until the 1870s. From there, the movement ran hot until the 1940s. The abolition movement saw a resurgence in the 1970s, but has largely petered out. Pennsylvania, by far, saw the most activity, followed by Illinois, Iowa, and New York. Every state had at least one documented instance of the phrase in the database except Maine, New Hampshire, Rhode Island, and Idaho.113 This wave of criticism went hand-in-hand with broader attacks on citizen participation in the courts as papers questioned the intelligence of juries, highlighted cases of gross injustice, spread tales of drunk or corrupt jurors, and opined that jury power was out of control.114 The New York Herald criticized the perceived sympathy by weak-minded juries for criminal defendants.115 Others started proposing reforms. The Democratic Review argued that jurors should be made up entirely of lawyers.116 The New York Times called for majority vote of juries, rather than unanimous verdicts.117 These stories prompted calls for juries to be reined in or eliminated altogether.118 It was more than just newspaper editors venting against grand juries. State constitutions, examined in aggregate, show an unmistakable movement away from grand juries. As noted above, early state constitutions emphatically supported grand jury rights. But it was not to last. In the 1840s—the same time when calls for grand jury abolition started cropping up in newspapers across the county—there was a shift. Exceptions to grand juries were carved out more frequently. Indictments were not required “in cases cog- nizable by Justices of the peace,” or other situations involving minor

113 Newspapers.com (follow “Search” hyperlink; then “Show Advanced”; enter “United States of America” in “Place” field; enter “1700-2019” in “Date” field; search for phrase “abolish grand juries”) (last search conducted Apr. 28, 2019). Professor Suja Thomas performed her own analysis of historical New York Times articles going back to 1851 and found criticism of the grand jury as well. Suja A. Thomas, The Missing Branch of the Jury, 77 Ohio St. L.J. 1261, 1312–13 (2016). 114 Stacy Pratt McDermott, The Jury in Lincoln’s America 15 (2012). 115 Waldrep, supra note 46, at 28. 116 Pratt McDermott, supra note 114, at 16. 117 Id. at 17. 118 Id. at 15. There were plenty of other attacks against trial juries—and the citizens who sat upon them—by the legal elite. In 1880, the Chief Editor of the American Law Review said juries were like an “untrained crew sailing a ship.” The Changing Role of the Jury in the Nineteenth Century, 74 Yale L.J. 170, 191 (1964). In 1886, a different writer in the same journal said the jury was an “artificial feature” and “a foreign body” in the system.Id. at 190–91. 432 Monea crimes, a limited but noteworthy exception.119 The exception first appeared in Maine’s 1820 constitution, but took off in the 1840s and continued for the rest of the century. Exceptions for minor crimes were the least of grand juries’ worries. States were also beginning to place prosecution by information on equal footing with indictment.120 Once again, the first instances of allowing information occurred near the founding of the country, but did not become widespread until the middle of the 19th century. Not only were old states redacting grand juries from their constitutions, new states were not even bothering to try them. After Hurtado, state after state entered the Union without grand juries.121 Of the twelve states that have joined since Hurtado, ten allowed prosecution by information in their constitutions, with Wyoming and Alaska being the outliers.122 Even then, Wyoming authorized its legislature to abolish the grand jury123—a decision many other states

119 Ark. Const. of 1874, art. I, § 8; Ark. Const. of 1868, art. I, § 9; Fla. Const. of 1885, art. V, § 28; Idaho Const. of 1889 art. I, § 8; Iowa Const. of 1857, art. I, § 11; Iowa Const. of 1844, art. II, § 10; Me. Const. of 1820, art. I, § 7; Minn. Const. of 1857, art. I, § 7; N.J. Const. of 1844, art. I, § 9; R.I. Const. of 1843, art. I, § 7; S.C. Const. of 1868, art. I, § 19; S.D. Const. of 1889, art. I, § 10; W. Va. Const. of 1872, art. III, § 4; W. Va. Const. of 1863, art. II, § 1; Wis. Const. of 1848, art. I, § 8. 120 See Cal. Const. of 1879, art. I, § 8; Colo. Const. art. II, § 8; Conn. Const. art. I, § 9; La. Const. of 1898, art. IX.; La. Const. of 1879, art. V; La. Const. of 1868, art. I, § 6; La. Const. of 1864, tit. VII, art. CV; La. Const. of 1861, tit. VI, art. CIII; La. Const. of 1852, art. CIII; La. Const. of 1845, art. CVII; La. Const. of 1812, art. VI, § 18; Neb. Const. of 1875, art. I, § 10; Nev. Const. art. I, § 8 (amended 1912 and 1996); Pa. Const. of 1874, art. I, § 9; Pa. Const. of 1838, art. IX, § 9; Pa. Const. of 1790, art. IX, § 9; Tex. Const. art. V, § 17 (amended 1985 and 2001); Tex. Const. of 1869, art. I, § 8; Tex. Const. of 1866, art. I, § 8; Tex. Const. of 1845, art. I, § 8; W. Va. Const. of 1872, art. VIII, § 10. 121 See Ariz. Const. of 1910, art. II, § 30; Haw. Const. of 1959, art. I, § 10; Idaho Const. of 1889, art. I, § 8; Mont. Const. of 1889, art. III, § 8; N.D. Const. of 1889, art. I, § 8; N.M. Const. of 1911, art. XX, § 20; Okla. Const. of 1907, art. I, § 17; S.D. Const. of 1889, art. I, § 10; Utah Const. of 1895, art. I, § 13; Wash. Const. of 1889, art. I, § 25. 122 Wyo. Const. of 1899, art. I, § 13; Alaska Const. of 1956, art. I, § 8 (allowing for prosecution by information only in case where defendant waived right to grand jury). 123 Wyo. Const. of 1899, art. I, § 9. Vol. 12, No. 2 Northeastern University Law Review 433 made124—and Alaska allowed defendants to waive indictments.125 By authorizing waiver, the state suggests the benefit of the grand jury is solely to protect the accused, rather than a check on the government that benefits the public at large. Grand jury abolition became a cause célèbre among constitutional conventions. The drafters were plainly influencing each other. As more and more states ended grand juries without the sky falling in, constitutional conventions could credibly ask whether maintaining inquests was truly necessary.126 By the end of it, even jury enthu- siasts were willing to jettison grand juries so long as trial juries were preserved.127 Anti-grand jury hysteria continued well into the 20th century, but the war was largely over by the end of the 19th. Only 26 states held constitutional conventions that produced new or revised constitutions in the 20th century.128 Compare that to the 94 new or revised constitutions that were adopted in the 19th century,129 plus 26 others that were adopted or revised in the 18th century.130

124 Colo. Const. of 1876, art. II, § 23; Ind. Const. 1851, art. VII, § 17; Neb. Const. of 1875, art. I, § 10; N.D. Const. of 1889, art. I, § 8; Ore. Const. of 1857, art. VII, § 18; S.D. Const. of 1889, art. VI, § 10. 125 Alaska Const. of 1956, art. I, § 8. 126 Kentucky 1890 Convention Proceedings, supra note 15, at 438; 1 Official Report of the Proceedings and Debates of the Convention Assembled at Salt Lake City on the Fourth Day of March 1895, to Adopt a Constitution for the State of Utah 313 (1898) [hereinafter Utah 1895 Convention Proceedings] (statement of Mr. Wells); Idaho 1889 Convention Proceedings, supra note 15, at 262– 63 (statement of Mr. Standrod); 1 The Debates of the Constitutional Convention of the State of Iowa 124 (1857) (statement of Mr. Palmer); The Grand Jury, Chi. Trib., Apr. 27, 1870, at 2, https://www.newspapers.com/ image/349540085. 127 Utah 1895 Convention Proceedings, supra note 126, at 260–61 (statement of Mr. Varian). 128 The states are Pennsylvania, New Jersey, Georgia (three), Virginia (two), North Carolina, Rhode Island, Ohio, Louisiana (three), Illinois, Alabama, Missouri, Michigan (two), Florida, Montana, Oklahoma, New Mexico, Arizona, Alaska, and Hawaii. See, e.g., N.J. 1947 Convention, supra note 36; Ohio Constitutional Convention of 1912 (1912). 129 G. Alan Tarr, The Montana Constitution: A National Perspective, 64 Mont. L. Rev. 1, 8 (2003). 130 Delaware (two), Pennsylvania (two), New Jersey, Georgia (four), Massachusetts, Maryland, South Carolina (three), New Hampshire (two), Virginia, New York (two), North Carolina, Vermont (three), Kentucky (two), and Tennessee. See James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 811 (1992). 434 Monea

That means that five-sixths of the states’ constitutional drafting was already completed as the sun rose on the 20th century—preciously little room for pro-grand jury forces to settle the score even if they had been in the majority. Today, about half of the states do not require a grand jury for criminal prosecutions. Among the states that still use grand juries, 15 require them only for felony indictments and six for capital cases alone—only four states require them for all indictments. Pennsylva- nia has grand juries, but they do not indict.131 Because the inflection point for the grand jury was the latter half of the 19th century, that is where this Article will focus. Part III considers the main arguments offered by grand jury opponents and the changing state of America that made grand juries lose their luster.

III. Reasons for the Decline of Grand Juries This Part identifies five main reasons fueling the anti-grand jury movement. Some are arguments offered up by grand jury abolitionists; others are societal changes that explain the anti-grand jury fervor. They are (1) fears that the secrecy of grand jury proceedings allowed witnesses to anonymously lodge false accusations and destroy their neighbors’ reputations; (2) concerns that grand juries were at once too hard on the innocent and too easy on the guilty; (3) allegations that grand juries were too expensive and inefficient when compared to judges; (4) government professionalization and laws becoming more complex, meaning that it is easier for lawyers to replace grand juries and harder for grand jurors to understand the law without assistance from lawyers; and (5) urbanization, meaning we have lost small, intimate communities that grand juries were designed to thrive in.

A. Reputation Concerns: An Anonymous Accusation Could Destroy a Man’s Honor The Bible teaches, “Thou shalt not bear false witness against thy neighbor.”132 But for slow learners, western civilian has long pro-

131 Arnold Fleischmann & Carol Pierannunzi, Georgia’s Constitution and Government 32 (6th ed. 2006), https://testing. kennesaw.edu/students/Georgia%20Constitution-US%20And%20GA%20 Constitution.pdf. 132 Exodus 20:16. Vol. 12, No. 2 Northeastern University Law Review 435 hibited attacks on reputation by law. The Lex Salica, a compilation of Frankish law in the Middle Ages, declared that calling a man “wolf” or “hare” entailed a fine of three shillings.133 Falsely accusing a woman of being unchaste cost 45.134 Early Icelandic law allowed a man accused of cowardice to slay his accuser.135 Anglo-Saxon king Alfred the Great had tongues cut out to punish slander.136 And in early Brit- ish courts, money damages paid for dishonor were far higher than for physical injuries.137 One British court ruled that merely transcrib- ing or dictating a libelous statement ran afoul of the law, even if such a statement was never published.138 Overall, “[t]he laws of England, provide[d] as effectually, as any human laws [could], for the protection of the subject in his reputation.”139 These ideas held sway in America too. State constitutional framers took these same principles to heart. Many early state charters included special rules for libel cases. They often constitutionally guaranteed that the truth could be offered as evidence and that the jury had control over fact and law.140 Many states also outlawed calling someone a coward or insinuating that he refused to fight in a duel.141 In short, reputation was a thing of immense value to these proud people. It was so valuable, in fact, that attacks on a person’s character could not be defended on First Amendment grounds. In- deed, freedom of speech was paramount, but false attacks on a person’s character were an “abuse of that liberty” and punishable by law.142 The First Amendment used unqualified language, but the notion it empowered citizens to destroy their neighbor’s reputation was “too wild to be indulged by any rational man.”143 For these rea-

133 Van Vechten Veeder, The History and Theory of the Law of Defamation (pt. 1), 3 Colum. L. Rev. 546, 548 (1903). 134 Id. 135 Id. at 548 n.3. 136 Id. at 549. 137 Id. 138 Rex v. Burdett (1820) 106 Eng. Rep. 873 (K.B.) (quoting King v. Payne, 5 Mod. 167). 139 The Letters of Junius LXXII (Paris, Malepeyre 1822), https://babel. hathitrust.org/cgi/pt?id=njp.32101073822700&view=1up&seq=82. 140 E.g., Ala. Const. of 1867, art. I, § 14; Conn. Const. of 1818, art. I, § 7; Ga. Const. of 1868, art. I, § 19; Ohio Const. of 1802, art. VIII, § 6. 141 Van Vechten Veeder, The History and Theory of the Law of Defamation (pt. 2), 4 Colum. L. Rev. 33, 43 n.2, 46 n.2 (1904). 142 Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn. 1978). 143 Story, supra note 64, § 1874. 436 Monea sons, libel used to be a criminal offense.144 It is therefore little wonder why Americans were concerned about grand juries. The way they spoke about the dangers of the grand jury borders on terror. Core tenants of the grand jury informed these fears. Secrecy has always been part and parcel of the grand jury. At the 17th century grand jury proceedings for the Earl of Shaftesbury, the foreman got into a lengthy argument with the Chief Lord Justice of the court about the prerogative of the grand jury to examine witnesses in private, rather than in public.145 Discretion was another essential ingredient. Sir Matthew Hale wrote that grand jurors could “as they see Cause . . . give the more or less Credit to [witness] Testimony.”146 If the grand jury had reason to doubt or credit a witness, they could rule against what the witness claimed or, alternatively, rule in favor of a single witness who gave a minority view.147 These features served valid purposes. Through secrecy, the thinking goes, witnesses will feel at liberty to speak candidly, potential criminals do not know they are being investigated, grand jurors can deliberate in peace, and derogatory information will not come out unless there is an indictment. Through discretion, the grand jury can indict worthy cases and discard the others. But taken together, it was a dangerous combination. Al- though the system may have been intended to prevent the escape of false rumors, what was to stop someone from wrongfully besmirch- ing his neighbor’s fine character and the grand jury from indicting on that evidence? Secrecy could embolden men to make frivolous accusations they would not dare make in public.148 And discretion allowed “these arbitrary tribunals . . . to carry out the aims of malice, revenge, and dishonesty.”149 In the modern era, there have been allegations that prosecutors leaked damning information about the accused, too.150 Even if the charge fell apart at trial, the stink of the

144 Park v. State, 4 Ga. 329, 330 (1848); Reed v. State, 11 Mo. 379, 380 (1848); Thomas v. Thomas, 20 N.J. Eq. 97, 98 (1869); Moulton v. Beecher, 52 How. Pr. 182, 183 (N.Y. 1876). 145 8 How. St. Tr. 759, 771–74 (1681). 146 Sir Matthew Hale, History of the Common Law of England 255– 56 (London, J. Walthoe & J. Walthoe, Jr., 1716). 147 Id. at 256. 148 The Grand Jury System, supra note 126, at 2. 149 Shall We Abolish the Grand Jury?, Inter Ocean, Jan. 20, 1883, at 12, https:// www.newspapers.com/image/34191789/. 150 Costello, supra note 35. Vol. 12, No. 2 Northeastern University Law Review 437 accusation would remain. Worse still, the victim of malicious accusations would have few options in response. A person’s reputation could be ruined before he even knew he was under suspicion.151 And if a victim learned who lied about them, the law stood to thwart their recovery. Wit- nesses before a grand jury were generally protected from libel prosecutions.152 This protection extends to all relevant statements made in the course of a judicial proceeding, and applies whether they are made “maliciously and corruptly.”153 Similarly, an ill-considered indictment by a grand jury was absolutely privileged.154 Much like modern protections against liability for prosecutorial155 or judicial156 misconduct, it was deemed more important for grand jurors to operate freely than to punish them for potential misdeeds. Thus, it is unsurprising that when word got out that grand juries were convening, supposedly, “the hurricane shutters [went] on the windows and some of the citizens [made] a speedy dive into the tornado cellar.”157 In the eyes of critics, grand juries allowed “cowardly wretches an opportunity to vent their spite upon individuals.”158 And the grand jury room was viewed as a “sort of sewer through which runs hate, malice, envy, villainy, cowardice and injustice.”159 Through grand jury investigations, “[c]itizens are harassed and annoyed; private pique is gratified, and taxpayers may look on and see thousands of dollars of county revenue thrown away.”160 To give one example from the Illinois constitutional convention, Delegate Turner, a lawyer, recounted a tale a client had told him. It grew from a private feud between the client and a neighbor.

151 The Grand Jury System, Reading Times, Sept. 16, 1868, at 2, https://www. newspapers.com/image/45427012/. 152 Hollis v. Meux, 11 P. 248, 249 (Cal. 1886); Kidder v. Parkhurst, 85 Mass. (3 Allen) 393, 396 (1862); Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 320 (1825). 153 Hayslip v. Wellford, 263 S.W.2d 136, 137 (Tenn. 1953) (citing authorities). 154 Nelson v. Robe, 6 Blackf. 204, 205 n.1 (Ind. 1842); Howard v. Thompson, 21 Wend. 319, 326, (N.Y. Sup. Ct. 1839); Hayslip, 263 S.W.3d at 139. 155 See generally Imbler v. Pachtman, 424 U.S. 409 (1976). 156 See Stump v. Sparkman, 435 U.S. 349 (1978); Pierson v. Ray, 386 U.S. 547 (1967). 157 N.J. 1947 Convention, supra note 36, at 618 (statement of Mr. Schlosser). 158 Grand Jury Business, supra note 10. 159 Grand Jury System, Sedalia Wkly. Bazoo, Feb. 20, 1883, at 4, https://www. newspapers.com/image/83461859/. 160 The Grand Jury Humbug, S.F. Chron., Nov. 15, 1871, at 2, https://www. newspapers.com/image/27623800/. 438 Monea

The neighbor became a grand juror and gleefully explained to Mr. Turner that he planned to indict the client just to see him suffer. An hour later, the client—“a man of respectability, a man of family: a man with a wife and children”—came into the lawyer’s office shak- ing and exclaimed, “My God, Turner, I am indicted.” The poor man was later acquitted for the crime he did not commit, but the damage was done.161 In the view of critics, the process was insufficient in protecting one’s sacred reputation. According to them, witnesses did little else than lie before grand juries. “A man who knows he cannot make a case stand in open court, will bring it before a grand jury, so as to create suspicion against a man and blacken his character,” declared one delegate at Nebraska’s constitutional convention.162 “How often is [the grand jury] used as a means of venting spite—as in a case of charged embezzlement, to get money from the accused” asked a second.163 “There is scarcely a gentleman on this floor” pronounced an Illinois constitutional drafter, “who cannot point to some victim of this secret inquisition in his own county.”164 The danger of the grand jury was amplified by how respect- ed it was, since many people, faults withstanding, believed it was a credible source. When the grand jury formally accused someone of a crime, “he is at once considered guilty by the community, and regarded as a criminal before he has had the benefit of a trial.”165 One prosecutor, claiming to speak for all of them, said that he viewed an indictment as conclusive evidence of a person’s guilt.166 Even defenders of the grand jury admitted that many people would make false accusations under the veil of secrecy the institution provided—though they argued that jurors would be able to ferret out malicious charges. The Prompter wrote that grand jurors “quietly passed over” many of the “multitude of malicious charges which are made to them to get revenge on some person[.]”167 One source claimed that two-thirds of accusations were bupkis.168 If true,

161 The Grand Jury, supra note 126. 162 The Grand Jury System, Neb. St. J., supra note 111. 163 Id. 164 1850 Indiana Convention Proceedings, supra note 16, at 148. 165 The Grand Jury System, Evansville Daily J., Mar. 7, 1850, at 2, https://www. newspapers.com/image/321423349/. 166 Kentucky 1890 Convention Proceedings, supra note 15, at 1861 (statement of Mr. Bullitt). 167 The Prompter, supra note 100. 168 Shall We Abolish the Grand Jury?, supra note 149. Vol. 12, No. 2 Northeastern University Law Review 439 that would mean an alarming number of people were abusing the grand jury process.

B. Criminal Due Process Concerns: Too Hard on the Innocent, Too Easy on the Guilty A frequent knock against grand juries was that they persecuted the innocent and denied basic due process rights to the accused. Critics likened it to the “Star Chamber,”169 King Henry VIII’s secretive tribunal that acted more as a political cudgel than court of law.170 The movement against grand juries may well have been the biggest movement in favor of criminal defendants in the adolescent country, as many grand jury abolitionists voiced concerns about how defendants were being given short shrift. Perhaps it was an extension of the same strong emphasis for criminal due process rights seen in the constitution and many state counterparts. If grand juries hurt defendants, as abolition proponents claimed, this was a perversion of the historical role of the institution, for they were long seen as supreme obstacles to wrongful prosecutions. Non-indictments for the First Earl of Shaftesbury and pub- lisher Peter Zenger are powerful examples of grand juries standing up to prosecutors and the Crown.171 They represent how common people with a strong sense of justice could thwart the most powerful empire in the world. Indeed, at one time, the absence of grand juries was likened to the Star Chamber.172 And the real Star Chamber was used to prosecute jurors who refused to convict defendants.173 But it was not only sensational cases where grand juries acquitted. With few law enforcement officers, prosecutors, or established law, grand juries at the time had very little information to go off of, and tended to resolve ties in favor of the defendant. These 18th century grand juries refused to indict so frequently that they earned the nickname “the hope of London thieves.”174

169 E.g. 1 Proceedings of the Constitutional Convention of South Carolina 304 (Charleston, Denny & Perry 1868) (statement of Mr. C.C. Bowen); Proceedings in the Constitutional Convention, supra note 99; Grand Jury System, supra note 159. 170 Trial by Jury: “Inherent and Invaluable”, W. Va. Ass’n for Just., https://www. wvaj.org/index.cfm?pg=HistoryTrialbyJury (last visited May 11, 2019). 171 Washburn, supra note 49, at 2342–43. 172 Britannicus, supra note 51. 173 Valerie P. Hans & Neil Vidmar, Judging the Jury 22–23 (1986). 174 Trial Procedures, Proceedings Old Bailey, https://www.oldbaileyonline. org/static/Trial-procedures.jsp#grandjury (last updated Mar. 2018). 440 Monea

Grand juries also refused to indict in the New World. Samuel Wharton complained to Ben Franklin a century earlier that a grand jury did not indict despite the fact that “the most plain and positive Proofs was adduced.”175 Centuries later, grand juries rendered anti-gambling laws in New York “unenforcible.”176 These sorts of cases meant that attacks kept coming based on the notion that grand juries let guilty men go free. Foes of the institution kept calling it the “thieves’ last chance” and “a loophole for the escape of crime” to justify doing away with it.177 The Mat- toon Gazette quipped: “The abolition of the grand jury system will hardly be serious[ly] regretted except by those who are interested in the protection of crime.”178 The Buffalo Morning Express claimed that the stupidity of grand jurors ensured that criminals would get off scot free.179 Delegate Moore of the 1890 Kentucky constitutional convention bemoaned that it would only take handful of maverick jurors to stymie an indictment.180 A grand jury would acquit even if an “offense was committed in broad daylight, in one of the most populous streets of your cities; it does not matter how thoroughly he is steeped in crime.”181 Yet even in the mid-19th century, critics pointed out the way that grand juries hurt defendants. They warned that a “man may be held up to the community as guilty of a felony without the least par- ticle of evidence to sustain the charge.”182 A grand jury “prejudges the indicted party’s case”183 and lacked due process protections.184 Preliminary examinations, held before a judge with a defense attor-

175 Letter from Samuel Wharton to Benjamin Franklin (May 27, 1765), in 12 The Papers of Benjamin Franklin 141–46 (Leonard W. Labaree ed., Yale Univ. Press 1967), https://founders.archives.gov/documents/ Franklin/01-12-02-0071. 176 Revised Record of the Constitutional Convention of the State of New York 708 (Albany, J.B. Lyon Co. 1938). 177 Grand Juries, Brooklyn Daily Eagle, July 19, 1861, at 2, https://www. newspapers.com/image/50407510/. 178 Mattoon Gazette, Mar. 21, 1879, at 4, https://www.newspapers.com/ image/73429129/. 179 The Jury System, Buffalo Morning Express, Sept. 23, 1872, at 2, https:// www.newspapers.com/image/343955080/. 180 Kentucky 1890 Convention Proceedings, supra note 15, at 567. 181 Id. 182 Grand Jury Business, supra note 10. 183 The Grand Jury, supra note 126. 184 1850 Indiana Convention Proceedings, supra note 16, at 148 (statement of Mr. Pettit); The Grand Jury System—How Its Abolition Works in Michigan, Wis. St. J., Apr. 25, 1867, at 2, https://www.newspapers.com/image/396575792/. Vol. 12, No. 2 Northeastern University Law Review 441 ney present, would be much fairer, they claimed.185 One of the biggest problems in the critics’ eyes was that grand juries were one-sided.186 Witnesses were examined without a defense attorney or judge present. This was doubly bad for defendants, since before the advent of public defenders it was said that “in criminal cases, judges were counsel for the prisoners.”187 Summing up, one paper wrote: “There is not now, and there never has been, any right or justice in a system of investigation which hears only one side of a case.”188 There was good reason to be skeptical of a one-sided case favoring the prosecution. Apart from the fact that any system that is tilted in favor of one side is open to abuse, there was even more reason for concern back in the day. District attorneys would be paid more if cases went to trial, and paid less if grand juries threw out cases.189 Apart from the tough conditions for defendants before the grand jury, life was hard for defendants waiting to go before the grand jury. The setup in the 19th century forced defendants—who might later be pronounced innocent—to languish in jail. It was common practice for grand juries to only meet a few times a year to hold session. If a defendant was arrested while the grand jury was in session, they might be forced to wait in confinement until the inquest assembled.190 In Vermont, the grand jury only met once a year.191 Witnesses, too, could be forced to wait.192 These problems were not exclusive to grand juries—a person prosecuted by information could be “dragged from his home, his friends, his acquaintance[s], and

185 Report of the Proceedings and Debates in the Convention to Revise the Constitution of the State of Michigan 54– 55 (Lansing, R.W. Ingals 1850) (statement of Mr. Sullivan); Opposed to Grand Juries, supra note 111; The Abolition of Grand Juries—An Important Bill, Detroit Free Press, Jan. 13, 1859, at 1, https://www.newspapers.com/ image/118132466/; The Grand Jury System, supra note 165. 186 The Grand Jury Bill, Burlington Daily, Oct. 29, 1859, at 2, https://www. newspapers.com/image/355410084/. 187 Cooley, supra note 90, at 331–32 n.2. 188 Town and County, Holt County Sentinel, Feb. 14, 1879, at 3, https:// www.newspapers.com/image/78132433/. 189 43 Cong. Rec. 4,440 (1874) (statement of Mr. Hale). 190 Court Reforms, Muscatine J., Mar. 5, 1874, at 2 https://www.newspapers. com/image/542058277/. 191 Legislature of Vermont, supra note 111. 192 Utah 1895 Convention Proceedings, supra note 126, at 278–79 (1898) (statement of Mr. Varian). 442 Monea confined in prison, until the next session of the court”193—but grand juries were an easy target. Citizens grew suspicious of grand juries. Sometimes, the concern was that personally corrupt grand jurors would sully the results of investigations.194 Elsewhere, the threat was that prosecutors had subjugated grand juries. One paper said: “The Grand Jury system is reeking with corruption, and in the hands of venal and de- based District Attorneys, has become a machinery of fraud by which the guilty are protected and the innocent persecuted.”195 Even with good men on the grand jury, “with an ass, or a knave, or both, for an adviser, [the grand jury] may find fifty or even fifty-eight true bills, every one of which may be set aside or quashed.”196And still others believed that influential defendants or sheriffs could ply grand jurors into doing what they wanted.197 The United States Supreme Court eventually admitted that: “The grand jury may not always serve its historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor.”198 This line of attack flipped the historical narrative on its head. There had once been a much greater concern that judges would be corrupt. John Adams wrote that judges, “being commonly rich and great, they might learn to despise the common people, and forget the feelings of humanity: and then the subjects liberty and security would be lost.”199 Alexander Hamilton in the Federalist Papers claimed that the “strongest argument” in favor of juries was that they offered “security against corruption,” for it would be harder to influence a large group of transient citizens than a single, permanent government official like a judge.200 Grand juries could be counted on

193 The Debates in the Several State Conventions on the Adoption of the Federal Constitution, supra note 57, at 110 (statement of Mr. Holmes). 194 Chi. Trib., May 1, 1877, at 4, https://www.newspapers.com/ image/349746528/; see Debates of the Convention to Amend the Constitution of Pennsylvania, supra note 101, at 215. 195 Reading Times, Nov. 28, 1871, at 2, https://www.newspapers. com/image/45343067/. 196 The Grand Jury Humbug, supra note 160, at 2. 197 Kentucky 1890 Convention Proceedings, supra note 15, at 568 (statement of Mr. Moore). 198 United States v. Dionisio, 410 U.S. 1, 17 (1973). 199 Letter from John Adams & The Earl of Clarendon to William Pym (Jan. 27, 1766), in 1 The Adams Papers 161–64 (Robert J. Taylor ed., 1977), https:// founders.archives.gov/documents/Adams/06-01-02-0063-0003. 200 The Federalist No. 83 (Alexander Hamilton) (talking specifically about Vol. 12, No. 2 Northeastern University Law Review 443 to root out corruption when government officials ignored it.201 There was at least some evidence that grand juries were in- discriminately indicting. At the Illinois constitutional convention of 1873, Colonel Dement stated there were 4,682 indictments in the state last year, only 682 had been tried, and only 350 resulted in convictions.202 By these numbers, only 7 percent of indictments led to convictions—meaning the other 93 percent sullied good names with little to show for it. Another detractor pointed out that one grand jury returned 123 indictments in a few hours,203 which probably meant it was cavalier about the presumption of innocence. There were a few dissenting voices who still maintained that grand juries helped defendants. One such supporter said abolition would lead to favoritism by prosecutors, who “would [prosecute] the weak and fail to prosecute the strong.”204 Another, a delegate at Idaho’s constitutional convention, reported that grand juries declined to indict two-thirds of the time.205 For what it is worth, states that have grand juries allow defendants to waive that right, but they seldom do.206 And when it is waived, it is usually as the result of a plea agreement.207 So faced with real-world consequences, defendants and their attorneys conclude they are at least potentially helpful. To understand the value of grand juries, it is equally revealing to look at who was denied their protection. Southern states excluded slaves from the benefits of indictment. Kentucky’s constitution provided: “In the prosecution of slaves for felony, no inquest by a grand jury shall be necessary, but the proceedings in such prosecutions

civil juries). 201 William M. Gouge, Debates of the Delaware Convention, for Revising the Constitution of the State, or Adopting a New One; Held at Dover, November, 1831 40–41 (Wilmington, Samuel Harker 1831) (statement of Mr. Read). 202 Proceedings in the Constitutional Convention, supra note 99, at 1. 203 The Grand Jury Humbug, supra note 160. 204 Intelligencer, supra note 13. 205 Idaho 1889 Convention Proceedings, supra note 15, at 267 (statement of Mr. Reid). Another delegate countered that nine-tenths of the true bills were quashed by the court. Id. at 268 (statement of Mr. Sweet). If both counts were accurate, that would mean only three percent of cases filed by prosecutors were valid—an alarmingly low number if true. 206 Greg Hurley, The Modern Grand Jury, Nat’l Ctr. St. Cts., https://www. ncsc.org/sitecore/content/microsites/trends/home/Monthly-Trends- Articles/2014/The-Modern-Grand-Jury.aspx (last visited May 1, 2019). 207 Id. 444 Monea shall be regulated by law.”208 Arkansas made the intent even clearer, declaring that only free white men and Indians were entitled to grand juries.209 Cognizant of this history, in Florida’s post-Civil War constitutional convention, one delegate recommended specifically guaranteeing “no colored person shall be put upon his trial for any crime involving his life, except upon presentment or indictment,” though this did not make it into the final document.210 By a similar token, Southern states removed the right to grand juries for small crimes such as vagrancy, drunkenness, and disorderly conduct.211 In theory, this would cut down on the need for a full-scale grand jury for minor cases. But given that “vagrancy” laws were used to subjugate black citizens and punish “them for any breach of Old South etiquette”—such as being “idle, disorderly, or using ‘insulting’ gestures”212—this was yet another way to deny grand juries to black defendants. Evidently, these states did not want to risk a grand jury ac- quitting slaves or freed blacks. If grand juries were seen as meaningless or rubber stamps, it would have made little sense to deny black citizens the right to have them. By preserving them for white defendants, it places them on a level with voting and other rights that white Southern society thought too valuable to share.

C. Too Cumbersome, Expensive, and Inefficient Perhaps the most common attack lodged against grand juries was that they were “cumbersome, expensive, and inefficient.”213

208 Ky. Const. of 1799, art. VII, § 2. See Miss. Const. of 1817, art. VI, pt. 2, § 2. 209 Ark. Const. of 1861, art. I, § 14. 210 Journal of Proceedings of the Convention of Florida: Begun and Held at the Capital of the State, at Tallahassee, Wednesday, October 25th, A.D. 107 (1865) (statement of Mr. Wiggins). 211 Miss. Const. of 1868, art. I, § 31. See also Journal of the proceedings of the convention of delegates elected by the people of Tennessee, to amend, revise, or form and make a new constitution, for the state. Assembled in the city of Nashville, January 10, 1870, at 100–01 (1870) (proposing to get rid of grand juries in the cases of petit larceny, assault, battery, affray, riot, unlawful assembly, vagrancy, and “other misdemeanors of a like character”). 212 Jason Phillips, Reconstruction in Mississippi 1865-1876, Miss. Hist. Now (May 2006), http://www.mshistorynow.mdah.ms.gov/articles/204/reconstruction- in-mississippi-1865-1876. 213 Decker, supra note 107, at 346; see infra footnotes 217–26 and accompanying text. Vol. 12, No. 2 Northeastern University Law Review 445

This was a biting insult, for expenses were of paramount importance in a stridently tax-adverse society. Every hay penny shaved off the county budget was one less that taxmen had to collect. To this end, public costs were cut down to the bone in many states. Michigan paid most of its statewide public officials $1,000 or less a year all the way through the 19th century.214 It got so bad that officials in Michigan tried to rig an election to authorize a pay bump (the dastardly plot was foiled by a grand jury).215 Grand juries who audited county books in Nevada would decry an expense of $2.50 it saw as wasteful—in a total budget that ran into the tens of thousands of dollars.216 It is fitting that grand juries would be on the receiving end of this parsimonious streak. For years, the go-to criticism of grand juries was that they were a waste of taxpayer money. Throughout the country, newspapers and critics conveyed this criticism, calling grand juries: “expensive,”217 “expensive and burdensome,”218 “expensive and cumbersome,”219 “expensive and worn-out,”220 “expensive and useless,”221 “useless and expensive,”222 “cumbrous and fearfully expensive,”223 “awkward, cumbersome and expensive,”224 “cumbrous, expensive, and for the most part, unnecessary;”225 and an “expensive

214 See Michigan’s Great Shame, The Sun, Feb. 25, 1894, at 20, https://www. newspapers.com/image/207039722/. 215 See id.; see also The Indictments, Detroit Free Press, Feb. 24, 1894, at 4, https://www.newspapers.com/image/119515673/. 216 See Grand Jury Report of the January Term of the Second Judicial District Court, Reno Gazette-J., Feb. 6, 1878, at 3, https://www.newspapers.com/ image/147502385. 217 Report of the Proceedings and Debates in the Convention to Revise the Constitution of the State of Michigan, supra note 185, at 89 (statement of Mr. S. Clark). 218 The Grand Jury, supra note 126, at 2. 219 Prosecuting Attorneys’ Council of Georgia, Grand Jury Handbook 12 (15th ed. 2015), https://www.hallcounty.org/ DocumentCenter/View/2302/Grand-Jury-Handbook-PDF?bidId=. 220 Annual Message of Gov. Horace Austin, Star Trib., Jan. 6, 1871, at 2, https:// www.newspapers.com/image/178876143/. 221 Albany, N.Y. Daily Herald, Jan. 21, 1842, at 2, https://www.newspapers. com/image/466563072/. 222 General Local Items, supra note 111. 223 Public Prosecutions, Neb. St. J., July 7, 1871, at 1, https://www.newspapers. com/image/313793173/. 224 Hubert J. Santos, The Pros and Cons of Amending the Constitution, Question 1: Should We Abolish the Grand Jury? No, Hartford Courant, Oct. 30, 1982, at 13, https://www.newspapers.com/image/368797782/. 225 The Power of Grand Juries, Brooklyn Daily Eagle, Dec. 15, 1855, at 2, 446 Monea abomination.”226 In support of these claims, grand jury abolitionists occasionally provided numbers. An Iowa paper reported that the elimination of grand juries would save between $50 to $500.227 An Indiana constitutional convention delegate claimed grand juries cost at least $20,000 per year in the state,228 while another delegate reckoned it was $100,000.229 A Louisianan delegate calculated that cutting the size of grand juries would save $15,000 out of an annual judicial budget of $330,000 to $600,000.230 One delegate in Utah estimated abolishing grand juries would save $70,000.231 Reformers in Mich- igan claimed that ending the grand jury saved money, but did not provide specifics.232 Articles calling for the end of grand juries were printed across the country.233 In Texas, juries of all stripes were said to contribute to “the vicious criminal system of Texas that is burdening the State and bankrupting the counties” and to which “the pruning knife should be vigorously applied.”234 And prune the states did. Instead of calling for the end of grand juries outright, many states proposed or implemented smaller ones.235

https://www.newspapers.com/image/50599972/. 226 The Moss-Covered Abomination, Cairo Bull., Mar. 9, 1879, at 2, https://www. newspapers.com/image/221340582/. 227 Court Reforms, supra note 190, at 2. 228 1850 Indiana Convention Proceedings, supra note 16, at 135 (statement of Mr. Anthony). 229 Id. at 142 (statement of Mr. Carter). 230 Official journal of the proceedings of the Constitutional convention of the state of Louisiana, held in New Orleans, Tuesday, February 8, 1898, at 382 (New Orleans, H.J. Hearsey 1898) [hereinafter Louisiana 1898 Convention Proceedings] (statement of Mr. Kruttschnitt). 231 Utah 1895 Convention Proceedings, supra note 126, at 286 (statement of Mr. Evans). 232 The Grand Jury System—How Its Abolition Works in Michigan, Wis. St. J., Apr. 25, 1867, at 2, https://www.newspapers.com/image/396575792/. 233 See, e.g., The Grand Jury System—How its Abolition Works in Michigan, Ind. Herald, July 24, 1867, at 1, https://www.newspapers.com/ image/40073902/?terms=%22abolish%2Bgrand%2Bjury%22; The Grand Jury System, How its Abolition Works in Michigan, Holt County Sentinel, Nov. 8, 1867, at 1, https://www.newspapers.com/image/76171922/. 234 Debates in the Texas Constitutional Convention of 1875, at 426 (Seth Shepard McKay ed., The University of Texas Austin 1930), https:// tarltonapps.law.utexas.edu/constitutions/texas1876/debates. 235 General Local Items, supra note 111, at 4; Ohio Const. of 1851, art. I, § 10 (amended 1912); Or. Const. of 1857, art. VII, § 18. Vol. 12, No. 2 Northeastern University Law Review 447

Though less commonly argued, some pointed out the expense not only to the taxpayer, but to the grand jurors themselves. Since grand jurors were not well paid for their services, grand juries could be “ruinous upon the people who are compelled to serve on” them.236 Without modern transportation systems, it was “costly in the loss of time of large numbers of valuable citizens, dragged from their homes to sit for weeks on grand juries.”237 The cost argument is easy to grasp: a grand jury was made up of as many as 23 people, and they seemingly did the same amount of work as a single judge. But does the argument hold up under scrutiny? Definitive comparisons between grand jurors are hard to come by. Today, federal grand jurors are paid $50 per day, plus some incidental expenses.238 If there were 13 grand jurors, the total cost would be $650 per day for salaries, and if there were 23 grand jurors, $1,150 per day. Federal magistrates’ salaries are capped at 92 percent of federal district judges.239 District judges were paid an average annual salary of $210,900 in 2019.240 92 percent of this figure is $194,028. Taking out weekends and ten federal holidays, there are 251 working days in a year (though many judges probably do work during off-duty hours). Using these figures, a magistrate is paid $773 “per day,” plus health care, retirement, and the like. Based on this back of the envelope math, the difference between the cost of a magistrate and a grand jury is not too vast. Whatever gap does exist between grand jurors and magistrates, at least on the federal level, judges will likely cost more in the long run. The rate of increase for juror pay is glacial. Grand jurors had to wait 28 years to see their pay increase to from $40 to $50 per day.241 Back in 1970, they were making $20 per day.242 That works

236 The Grand Jury, supra note 126. 237 Id. 238 Juror Pay, U.S. Courts, https://www.uscourts.gov/services-forms/jury- service/juror-pay (last visited Apr. 30, 2019). 239 Judicial Salaries: U.S. Magistrate Judges, Fed. Judicial Ctr., https://www.fjc. gov/history/judges/judicial-salaries-u.s.-magistrate-judges (last visited Apr. 30, 2019). 240 Judicial Compensation, U.S. Cts., https://www.uscourts.gov/judges-judgeships/ judicial-compensation (last visited Apr. 30, 2019). 241 Spencer S. Hsu, Federal Jurors Get Their First Raise in Nearly 30 Years, Wash. Post (Mar. 27, 2018), https://www.washingtonpost.com/local/public-safety/ federal-jurors-get-their-first-raise-in-nearly-30-years/2018/03/26/3ba6f646- 311b-11e8-8bdd-cdb33a5eef83_story.html?utm_term=.9c1f25166e09. 242 1969 Fall Term Dade County Grand Jury, Final Report of the Grand Jury 13 (1970). 448 Monea out to a 150 percent pay increase since 1970, and 25 percent pay raise since 1990. District judges, and thus magistrate judges, had their pay rocket 427 and 118 percent in those same periods.243 Further, because federal judges have a constitutional right to annual cost of living increases from the Ethics Reform Act of 1989,244 judicial salaries will steadily rise for the foreseeable future. Of course, those are modern numbers. It is harder to get 19th century data, but we can still make a few educated guesses. An 1885 report of the Department of Justice sheds some light onto the pay of federal judges. Supreme Court justices made about $10,000, Court of Claims judges made $4,500, most circuit and district judges were paid between $6,000 and $3,500, respectively, and territorial justices made $3,000.245 Various states set judicial salaries by their constitutions. The Michigan Constitution of 1850 paid circuit court judges $2,500.246 Oregon’s original 1857 constitution paid supreme court judges $2,000.247 Most Virginia trial judges were paid $2,000 under the 1851 Virginia Constitution.248 Using these figures as a baseline, we can assume judges were paid somewhere in the neighborhood of $2,000 to $3,500. For convenience’s sake, I will employ the same work schedule assumptions. This does not give us mathematical precision, but gives us a ballpark to operate inside of. If a judge worked 251 days a year, their daily pay would be about $13. And what of grand jurors? In Illinois at 1861, it cost $1.50 per day for grand jurors, and grand juries had 23 members.249 Indiana grand juries of the same era had 16-18 members and paid them each $1.25 per day.250 One Oregonian constitutional convention delegate

243 See Judicial Compensation, supra note 240. 244 Beer v. United States, 696 F.3d 1174 (Fed. Cir. 2012). 245 U.S. Dep’t of Justice, Register of the Department of Justice and the Judicial Officers of the United States 9–10, 20 (Washington D.C., Gov’t Printing Office 1885), https://babel.hathitrust.org/cgi/ pt?id=mdp.39015030792611&view=1up&seq=7. 246 Mich. Const. of 1850 art. 9, § 1. 247 Or. Const. of 1857 art. 13, § 1. 248 Va. Const. of 1851 art. 6, § 14. 249 Proposition to Abolish the Grand Juries, Rock Island Argus, Dec. 31, 1861, at 2, https://www.newspapers.com/image/354648751/. 250 1850 Indiana Convention Proceedings, supra note 16, at 135 (statement of Mr. Anthony). Vol. 12, No. 2 Northeastern University Law Review 449 estimated that it cost $400 per county per year to fund grand juries of 15 members, assuming that grand jurors only put in a month of work, which was common enough at the time; this would work out to about a dollar a day. Unless the grand juries worked significantly more or less than normal, it would thus be right in line with Illinois. These figures would give a range of anywhere from $20 to $34.50 per day to run a grand jury, depending on how many grand jurors there were and how much each was paid. In some jurisdictions, it might have been even less. In Oregon’s original 1857 constitution as adopted, grand juries with as few as seven members were permitted.251 This could make grand juries as cheap as $7 per day to operate, at least for staffing costs. That would be roughly half of the cost of a judge. Grand juries, it was argued, also clogged up the court system. But despite rather low pay, grand juries could accomplish quite a lot. Before Iowa rolled back grand jury rights, “every offence known to [the] criminal code, [was] subject to indictment by Grand Juries.”252 This left courts “encumbered with the trial of numerous offenses of the most trivial character.”253 At the North Dakota constitutional convention, one delegate recounted how even defendants who wanted to plead guilty could not until the grand jury convened, wasting months.254 It did not help that the estimation of the average citizen was perceived to dim with each passing year. An analysis of mid-19th century New York Times articles found distrust of blue collar workers’ ability to serve on grand juries.255 In 1872, an Oregon paper called for the end of grand juries because “under the stupid understanding of the ignorant dozen who can be detailed to try a case only because of their ignorance, justice too often becomes a mockery and equity a sham.”256 The process to find jurors was called “a fruitless endeavor to find twelve nincompoops who can’t or don’t read the papers, or if they do, have not perception enough to form an opinion upon sub-

251 Or. Const. of 1857, art. VII, §18. 252 The Debates of the Constitutional Convention of the State of Iowa, supra note 126, at 125 (statement of Mr. Clarke). 253 Id. at 124 (statement of Mr. Palmer). 254 Proceedings and Debates of the First Constitutional Convention of North Dakota 241 (Bismarck, Tribune, State Printers & Binders 1889) (statement of Mr. Rolfe). 255 Thomas, supra note 113, at 1313. 256 Juries, New Northwest, Sept. 27, 1872, at 2, https://www.newspapers. com/image/46361836/. 450 Monea jects which are discussed in them.”257 At Wyoming’s constitutional convention, a delegate claimed, “I don’t believe an ordinary grand jury is competent to examine the accounts of the treasurer.”258 By the end of the century, one commentator sneered, “I cannot, however, say much for the intelligence of small shopkeepers and petty farmers, and whatever the fashion of the times may say to the contrary, I think that the great bulk of the working classes are altogether unfit to discharge judicial duties.”259 Playing into these criticisms, the business community pushed for “reforms” of the jury system, saying that juries should be populated by businessmen because of their intelligence, experience, and responsibility.260 New York actually experimented with special grand juries that purported to select people based on their intelligence and good character. This experiment did not perfect grand juries, but it did result in criticism that they convicted more often.261 At Illinois’s 1870 constitutional convention, one delegate noted that there were 4,682 indictments in a year where the total cost of grand juries in the state was $64,000.262 That comes out to less than $14 per indictment, or roughly a day’s work for a grand jury. For comparison, the four days that the Indiana constitutional convention spent debating grand juries cost taxpayers $2,400.263 A single special session of the Michigan legislature in 1900—which, incidentally, accomplished nothing—cost $17,000.264 These numbers cannot give us certainty about whether a grand jury or judge would be more expensive in a given jurisdiction. Two delegates at Oregon’s constitutional convention claimed that grand juries cost far less than judges.265 That may or may not be true.

257 The Jury System, supra note 179. 258 Journal and debates of the Constitutional Convention of the State of Wyoming 472 (1893) [hereinafter Wyoming Convention Debates] (statement of Mr. Fox) (emphasis added). 259 Laura Gaston Dooley, Our Juries, Our Selves: The Power, Perception, and Politics of the Civil Jury, 80 Cornell L. Rev. 325, 344 (1995). 260 Thomas, supra note 113, at 1314–15. 261 Id. at 1315, 1315 n.294. 262 Proceedings in the Constitutional Convention, supra note 99 (Statement of Col. Dement). 263 1850 Indiana Convention Proceedings, supra note 16, at 215 (Statement of Mr. Wolfe). 264 Small Results, Livingston County Daily Press & Argus, Jan. 10, 1900, at 3, https://www.newspapers.com/image/453263607/. 265 The Constitutional Convention, supra note 103. Vol. 12, No. 2 Northeastern University Law Review 451

But it seems likely that abolishing grand juries would not render dramatic cost savings. Indeed, according to one Michigan delegate’s estimate, the total cost of grand juries to the state worked out to about one penny per person per year.266 And the estimates are close enough to tell us that grand juries would probably be less expensive than panels of judges, an idea occasionally floated as a replacement for citizen panels.267 Regardless of whether arguments about costs were empiri- cally accurate, they clearly worked. Far more argued that grand juries were too expensive than those who claimed judges would cost more. John Langbein once said, “We cannot afford the Constitution and the Bill of Rights.”268 When it came to grand juries, people apparently believed him.

D. Government Has Become More Robust, Replacing the Need for Grand Juries The cost argument may have become more persuasive to society as government professionalized, thus minimizing the tolerance people had for spending money on grand juries. In the mid-1800s, when grand juries were still fairly popular, government was a much smaller part of people’s lives. Unfunded and undermanned local governments “generally had neither the need nor the ability to maintain an established bureaucracy staffed by professionals.”269 To the extent any bureaucracy operated, it operated mostly on the local level.270 In the 1880s, Wisconsin’s governor had a staff of five—counting the janitor and lieutenant governor.271 Around that same time in Con- gress, the Senate Appropriation Committee had a staff of eight, and the Senate Foreign Relations Committee had three.272 Grand juries often filled the void left by this lack of a professional bureaucracy. Congress entrusted grand juries to assist in the administration of the first Census. While federal marshals throughout the country were responsible for submitting population returns to the president, grand juries were responsible for tracking down and punishing marshals who failed to file returns.273 Grand juries

266 Waldrep, supra note 46, at 51. 267 See, e.g., Opposed to Grand Juries, supra note 111. 268 Thomas, supra note 113, at 1266. 269 Filarsky v. Delia, 566 U.S. 377, 384 (2012). 270 Id. 271 Id. 272 Robert Caro, Master of the Senate 65, 66 (2002). 273 Dep’t of Commerce & Labor, Bureau Census, Heads of Families 452 Monea also scrutinized the materials submitted by the marshals to ensure they were good and proper.274 In the states, grand juries did everything from suggest routes for roads,275 approve election precincts,276 collect taxes, oversee road maintenance, grant licenses, probate wills, appoint guardians, and swear in public officials.277 Grand juries even contributed to drafting state constitutions by submitting reports to delegates.278 Because so few government officials were in the way, grand juries largely ran the show. And who better to do so? As will be discussed further below, local jurors were “more interested in seeing that the affairs of their counties are honestly administered than any state official could possibly 279 be.” Collaborating with local grand juries, “the courts ruled the counties” in early America. When public officials were derelict in their duties, they could be fined by the grand jury, without any need to issue a formal indictment or presentment. Towns, counties, and private citizens, too, could be punished by the grand jury if they failed to provide good government.280 However, as time went on, Americans demanded more of their government, and the public sector grew. The first federal executive department created was State. It originally had nine employees, plus Secretary Thomas Jefferson.281 The federal government had about “3,000 employees at the end of the Federalist period, . . . 95,000 by . . . 1881, and nearly half a million by 1925.”282 Today, the Defense Department alone has nearly half a million employees

at the First Census of the United States Taken in the Year 1790, Rhode Island 6 (1908). 274 Id. at 9. 275 See, e.g., Prosecuting Attorneys’ Council of Georgia, Grand Jury Handbook, supra note 219, at 12. 276 43 Cong. Rec. 2,408 (1874) (statement of Mr. Sloan). 277 N.J. 1947 Convention, supra note 36, at 833. 278 Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana, Held in New Orleans, Monday, April, 21 1879, at 107, 117, 186 (New Orleans, Jas. H. Cosgrove, 1879). 279 Wyoming Convention Debates, supra note 258, at 473 (statement of Mr. Jeffrey) (emphasis added). 280 3 State of New Jersey Constitutional Convention of 1947, supra note 36, at 833–34. 281 James Q. Wilson, The Rise of the Bureaucratic State, S. Ill. U. Edwardsville, http://www.siue.edu/~dhostet/classes/501/assign/wilson.htm (last visited May 4, 2019). 282 Id. Vol. 12, No. 2 Northeastern University Law Review 453 overseas.283 Nowhere is the growth of government better illustrated than in the legal sphere. In the Washington Administration, Attorney General Edmund Randolph was the Justice Department. Even so, it was a part-time gig and Randolph maintained a private law practice. It was not until 1818 that Congress authorized a clerk for the attorney general.284 The first efforts to create a bona fide department stalled out, and it did not happen until 1870. It is now one of the largest departments.285 Not only did staff numbers swell, courts became more professionalized. In the early days of the Republic, there was a dearth of well-trained judges and law books.286 Many judges were not even schooled in the law.287 As one mid-19th century court put it: “In the judicial system of this Commonwealth, from the earliest period to the present time, the tribunals invested with criminal jurisdiction, with few exceptions, have been composed of a majority of judges not required to be learned in the law.”288 For example, between 1760 and 1774, six of the nine judges who served on the Superior Court of Massachusetts had no legal training.289 Vermont, New Hampshire, and New Jersey were in a similar state.290 Well into the 1800s, Rhode Island’s high court had a blacksmith serving on it and a farmer as its chief justice.291 Many other government jobs were held by ordinary citizens with no specialized training or education.292 Our present justice system is now dominated by prosecutors, police officers, and lawyers—all of whom played a much lesser role during colonial times.293 Take lawyers. Massachusetts only had

283 Kimberly Amadeo, Department of Defense and Its Effect on the Economy, Balance (Mar. 21, 2019), https://www.thebalance.com/department-of-defense-what- it-does-and-its-impact-3305982. 284 Jim Martin, The Creation of the Department of Justice, Libr. Cong. (Dec. 4, 2017), https://blogs.loc.gov/law/2017/12/the-creation-of-the-department- of-justice/. 285 Id. 286 Albert W. Alschuler & Andrew G. Deiss, A Brief History of Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 904 (1994). 287 Mark DeWolfe Howe, Juries As Judges of Criminal Law, 52 Harv. L. Rev. 582, 591 (1939). 288 Kane v. Commonwealth, 89 Pa. 522, 527 (1879). 289 Alschuler & Deiss, supra note 286, at 905. 290 See id. 291 Id. 292 Filarsky v. Delia, 566 U.S. 377, 385 (2012). 293 Thomas, supra note 113, at 1270. 454 Monea

15 practicing attorneys in 1740, and 71 by 1775.294 It is not surprising there were so few, since the first law school did not open until 1779.295 Even when lawyers made it onto the court, there were precious few recorded precedents.296 Georgia, for example, relied on “local courts with no formal system of review.”297 It is easy to see why so many legal jobs we consider strictly governmental were once done by private citizens.298 Though most governmental legal functions are now professionalized, grand juries endure. They are comprised of citizens from all walks of life and asked to perform a legal function that we would ordinarily trust to judges or lawyers: determine whether probable cause is present. Predictably, however, as lawyers grew in numbers and importance within the government, the web of laws became more tangled. Chief Justice John Marshal memorably said that if the Constitution attempted to detail every power of government, it would “partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.”299 200 years later, the Constitution is more or less as simple as when Marshal knew it, but the same cannot be said for United States Code. Among the 50 titles of the U.S. Code—comprising millions of words and hundreds of thousands of provisions300—and 175,000 pages of the Code of Federal Regulations, there are so many crimes that no one actually knows how many exist. Educated guesses range from 4,000 to 300,000.301 A federal judge admitted, “There are quite simply too many to count.”302 Laws are not only more numerous, but more complex. “At

294 Lawrence M. Friedman, A History of American Law 69 (4th ed., 2019). 295 Connecticut Loses Its Claim as Home of First Law School, The Bridgeport Post, Sept. 15, 1996, https://scholarship.law.wm.edu/lawschooldebate1966/6/. 296 Alschuler & Deiss, supra note 286, at 905–06. 297 LaVerne W. Hill & Melvin B. Hill, Georgia Constitution, New Ga. Encyclopedia, https://www.georgiaencyclopedia.org/articles/government-politics/georgia- constitution (last edited Oct. 31, 2018). 298 Filarsky v. Delia, 566 U.S. 377, 385–86 (2012). 299 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). 300 Daniel Martin Katz & Michael J. Bommarito II, Measuring the Complexity of the Law: The United States Code, 22 Artificial Intelligence & L. 337, 340 (2014). 301 Ted Stewart, Supreme Power: 7 Pivotal Supreme Court Decisions That Had a Major Impact on America 123 (2017). 302 Id. Vol. 12, No. 2 Northeastern University Law Review 455 common law, there were nine major felonies[:] Murder, Robbery, Manslaughter, Rape, Sodomy, Larceny, Arson, Mayhem, and Bur- glary,” along with a smattering of misdemeanors.303 All of these have definitions that most anyone could comprehend. Today, the United States Supreme Court, for example, spent around 14,000 words arguing over whether a fish was covered in the phrase “any record, document, or tangible object,” in 8 U.S.C. § 1519 and split 4-1-4.304 And that is just the federal government. State criminal codes can be far more complicated.305 Professor Susan Brenner said that as laws became more complex, jurors were forced to rely more on prosecutors to understand them.306 She was onto something. Legislators also picked away at the non-criminal functions of grand juries. At Louisiana’s 1898 constitutional convention, one delegate exclaimed: “We have also established for the first time in this State a board of control over all charitable and correctional institutions . . . Heretofore we have been compelled to rely solely upon the reports of grand juries.”307 With increasingly byzantine laws and supposedly dull jurors, more and more faith was invested in magistrates, making it easier to see how they could replace grand juries as gatekeepers to the criminal justice system. At the founding, the reasonableness of search warrants was litigated by juries; today it is done by magistrates.308 In 1879, magistrates had jurisdiction over certain thefts, embezzlement and receiving offenses; after 1925 they gained power over criminal damage, serious assaults, forgery, and attempted suicide.309 In 1962, burglary offenses were added to the list.310 Critics had long called for magistrates to replace the work of grand juries,311 and at last succeeded.

303 Criminal Law, Legal Info. Inst., https://www.law.cornell.edu/wex/ criminal_law (last visited May 8, 2019). 304 Yates v. United States, 574 U.S. 528 (2015). 305 Criminal Law, supra note 303. 306 Washburn, supra note 49, at 2371. 307 Louisiana 1898 Convention Proceedings, supra note 230, at 378 (statement of Mr. Semmes). 308 Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 69 (1998). 309 J. Kendall Few, In Defense of the Trial by Jury 478 (1993). 310 Id. 311 Debates of the Convention to Amend the Constitution of Pennsylvania, supra note 101, at 215; The Constitutional Convention, supra note 103. 456 Monea

E. Urbanization Transforms Society to the Detriment of Grand Juries While government grew, community shrank. Gone are the days of small towns where everyone knew everyone. More and more people live in cities and suburbs. Four out of every five Americans live in urban areas.312 Metro life offers many benefits, but one draw- back is how much looser the social bonds are among neighbors. This, in turn, undercuts one of the key advantages of grand juries. At the dawn of the grand jury system nearly a millennium ago, King Henry II degreed that 12 “good and lawful” men would be drawn from every 104 men in each village to serve as grand jurors.313 During the reign of Richard the First, four knights were selected from the county at large, and they would pick two men out of every hundred.314 William Forsyth tells us it was once considered necessary that grand juries should be summoned by picking one man from every hundred in the community.315 It was not simply that there were small towns. The structure of grand juries ensured they would be representative. In some jurisdictions, grand jurors were “elected from the various towns from which they came, so that the grand jury was virtually the representative body of the people of the county.”316 They were referred to as

312 Christopher Ingraham, Americans Say There’s Not Much Appeal to Big-City Living. Why Do So Many of Us Live There?, Wash. Post (Dec. 18, 2018), https:// www.washingtonpost.com/business/2018/12/18/americans-say-theres- not-much-appeal-big-city-living-why-do-so-many-us-live-there/?utm_ term=.3d5a9767cfa6. 313 Costello, supra note 35. 314 Blackstone, supra note 18, at *302. 315 William Forsyth, History of Trial by Jury 182 (James Appleton Morgan ed., 1875), https://babel.hathitrust.org/cgi/ pt?id=mdp.49015000461195&view=1up&seq=200. 316 3 State of New Jersey Constitutional Convention of 1947, supra note 36, at 833; see also The Massachusetts Government Act 1774, 14 Geo. III., c. 45 (Gr. Brit.), reprinted in Select Charters and Other Documents Illustrative of American History 1660-1775, at 343–50 (1906) (“the method at present used in the province of Massachusetts Bay in America, of electing persons to serve on grand juries, and other juries, by the freeholders and inhabitants of the several towns”); Letter from Andrew Oliver to —— (Feb. 13, 1769), in 20 The Papers of Benjamin Franklin, January 1 through December 31, 1773, at 557–61 (William B. Willcox ed., 1976), https://founders.archives.gov/documents/Franklin/01-20-02-0282-0011 (“The method of appointing our Grand Juries lies open to management. Whoever pleases, nominates them at our town-meeting.”). Vol. 12, No. 2 Northeastern University Law Review 457

“representatives of the people,”317 the “popular branch” of government,318 and “the organized agency of the people.”319 Naturally, with such a small group, the grand jurors could be expected to be a fairly representative sample. They were probably somewhat familiar with the disputes they investigated. But in massive counties, this is not possible. By 1947, New York County had 1.8 million people, from which the grand jury pool was 60,000.320 A grand jury might still be more representative than a single judge, but with a grand jury of 23 New Yorkers—with each member speaking seven unique tongues—it would not even cover all of the languages spoken by students in the city’s public schools.321 Critics seized on this point. For one of the most consistent insults hurled at the grand jury by opponents was that it was too old. It has been called a “relic of the past,”322 “relic of a by-gone age,”323 “relic of another age,”324 “relic of the dark ages and the inquisition,”325 “relic of barbarous ages,”326 “relic of barbarism,”327 “a former condition of society,”328 “fossilized legal obstructions to justice,”329 “Moss-Covered Abomination,”330 “hoary with the moss of ages,”331 the “old fogy system,”332 and “an old stump [that must be] removed from a field, even though it has once supported a tree

317 1850 Indiana Convention Proceedings, supra note 16, at 139 (statement of Mr. Rariden). 318 Gouge, supra note 201, at 40 (statement of Mr. Read). 319 The Grand Jury, supra note 126. 320 Fay v. New York, 332 U.S. 261, 266 (1947). 321 Sam Roberts, Listening to (and Saving) the World’s Languages, N.Y. Times (Apr. 29, 2010), https://www.nytimes.com/2010/04/29/nyregion/29lost.html. 322 Proceedings of the General Assembly Yesterday, Inter Ocean, Feb. 1, 1873, at 1, https://www.newspapers.com/image/38399123/. 323 Grand Juries, supra note 177. 324 Grand and Petit Jury’s, supra note 94. 325 Abolish Grand Juries, Kan. Pioneer, Dec. 26, 1878, at 2, https://www. newspapers.com/image/478464142/. 326 Atchison Daily, supra note 97. 327 Abolition of the Grand Jury, S.F. Chron., Jan. 6, 1872, at 2, https://www. newspapers.com/image/27557729/. 328 Grand and Petit Jury’s, supra note 94. 329 Iowa and the Grand Jury System, Sioux City J., Jan. 9, 1885, at 1, https://www. newspapers.com/image/416262541/. 330 The Moss-Covered Abomination, supra note 226. 331 Id. 332 The Grand Jury Abomination, Cairo Bull., Feb. 23, 1879, at 2, https://www. newspapers.com/image/221339375/. 458 Monea which bore golden fruit.”333 All of these japes get at the idea that grand juries were once valuable, but no longer were. Indeed, many opponents flat out said that grand juries once had merit. The Citizen’s Municipal Reform Association said: “In the purer and simpler life of the country districts, the institution of the grand jury doubtless accomplishes the good purposes for which it was founded in past ages. In a city of three-quarters of a million souls it is simply an anachronism, powerless for good yet powerful for evil.”334 The Reading Times admitted that the grand jury was useful when first conceived, and even for many centuries later.335 The Brook- lyn Daily Eagle said that whatever utility the grand jury once had, it was “long since inapplicable to the conditions of society succeeding that which gave it birth.”336 The Cairo Bulletin noted Blackstone and Kent had praised grand juries in their day, but the institution had since become unrecognizable.337 Supporters of the grand jury often extoled it in terms that implied it gave intimate treatment to defendants. One proponent said: “Let my case go first before a jury of my neighbors, who have known me for years, and know the accuser, and will properly weigh the testimony.”338 Another noted that grand juries forced accusers to make a “charge against his neighbor, and give his neighbor a chance to explain before he is indicted and brought into the Court.”339 This may have been true enough once, but it is hard to argue that the modern system allows defendants to be judged by their “neighbors” in the same sense. Though urban communities may not have the same sort of connectivity as a small town where everyone knows everyone else, that does not mean they cannot offer any sort of intimacy. It is a well-known tactic for plaintiffs’ lawyers suing a corporation to try to get into state court—and thus get a local jury—on the assumption that a local jury will favor the plaintiff.340 This tactic only makes

333 From the Capital, Morning Oregonian, Sept. 26, 1872, at 2, https://www. newspapers.com/image/9648687/. 334 Debates of the Convention to Amend the Constitution of Pennsylvania, supra note 101, at 215. 335 The Grand Jury System, supra note 151. 336 Grand Juries, supra note 177. 337 The Grand Jury Abomination, supra note 332. 338 The Grand Jury, supra note 126. 339 Kentucky 1890 Convention Proceedings, supra note 15, at 1221 (statement of Mr. Bronston). 340 Forum Shopping, Legal Info. Inst., https://www.law.cornell.edu/wex/ Vol. 12, No. 2 Northeastern University Law Review 459 sense if one believes that even in an urban society, local juries will better empathize with members of the community. But it appears the perceived value of grand juries is closely tied up with how rural the community is, as shown by comparing the grand jury abolition movement with urbanization of the country. When the first Census was completed, 19 out of 20 citizens lived in rural areas. Half a century later, 18 out of 20 citizens still did. But after 1840, the rate of urbanization accelerated. Between 1840 and 1850, the number of urbanites grew by nearly half a million— more than the cumulative total of new urbanites over the preceding 50 years. As another way to express the cultural shift: more people lived in cities in 1850 than lived in the entire nation in 1800. For the rest of the 19th century, the percentage of those living in the city grew by about five percentage points per decade.341 Remember: the phrase “abolish grand jury” in American newspapers did not first appear until the 1840s. The middle of the 19th century—when the anti-grand jury movement grew wings—is about the time when the Industrial Revolution had settled in.342 It is also the point when England started to move away from grand juries.343 When it did so, it started by banning them in metropolitan areas.344 The anti-grand jury movement continued surging in Amer- ica until hitting a steady stride in the 1870s. The movement did not die down until the middle of the 20th century. By 1964, only five states still required grand juries for all crimes.345

* * * * * There were a few other reasons offered in opposition to grand juries. Some Democrats made “strenuous efforts” to abolish grand juries because inquests had indicted so many Confederate sympa-

forum_shopping (last visited Dec. 4, 2019). 341 U.S. Population, 1790-2000: Always Growing, U.S. Hist., https://www.u-s- history.com/pages/h980.html (last visited May 7, 2019). 342 Industrial Revolution, History.com (Jan. 10, 2019), https://www.history. com/topics/industrial-revolution/industrial-revolution. 343 Though not the driving force behind the domestic grand jury abolition movement, American reformers did occasionally cite the English example as yet another reason to move away from inquests. Grand Juries, New Eng. Farmer, July 31, 1852, at 2, https://www.newspapers.com/image/404590663; Grand Juries, supra note 177. 344 See, e.g., id. America did not follow this same trend. 345 William J. Campbell, Eliminate the Grand Jury, 64 J. Crim. L. & Criminology 174, 174 (1973). 460 Monea thizers during the Civil War.346 Elitists shuddered at the idea that “twelve or more men selected from all classes of people” could sit in judgment of others, and would have preferred businessmen who were “responsible, prudent, upright, painstaking, well-known, and trusted.”347 Saloonkeepers thought grand juries interfered with their business of vice and agitated for a bill to abolish them.348 But those analyzed above are by far and away the most common complaints in newspapers and state constitutional conventions.

IV. Conclusion In the midst of the grand jury abolition movement, the Mem- phis Daily Appeal wrote: “There is a growing opinion that the grand jury system is not the brilliant success it might be, and that justice would be as well served were it done away with.”349 Refusing to lose its optimism, the paper continued: “but we believe that in the end the States which have abolished grand juries will establish them again.”350 On this prediction, it was monumentally wrong. Grand jury protections tend to move in but one direction: downward. The exceptions barely qualify as exceptions. Kentucky’s original 1792 constitution had robust grand jury protections. It provided “in all criminal prosecutions” the accused has a right to “demand the nature and cause of the accusation against him,” and that “no person shall, for any indictable offense, be proceeded against criminally by information” except for military and public officials.351 Seven years later, the revised constitution took away grand jury protections for slaves accused of felonies.352 This provision was removed in the 1891 revision, which is an increase in grand jury rights, but this is more because of the end of legalized slavery than a resurgence of grand juries. Around the same time that the Daily Appeal’s crystal ball had fogged up, a Vermont legislator was also prognosticating. Noting

346 Harrisburg Telegraph, Jan. 21, 1867, at 2, https://www.newspapers. com/image/44585807/. 347 Grand Jury System, supra note 159. 348 The News, Free Daily Press, Mar. 1, 1881, at 1, https://www.newspapers. com/image/542773254/. 349 Our Jury System, Memphis Daily Appeal, Apr. 24, 1879, at 2, https://www. newspapers.com/image/167989488/. 350 Id. 351 Ky. Const. of 1792, art. XII, §§ 10, 11 (emphasis added). 352 Ky. Const. of 1799, art. IX, § 2; See also Ky. Const. of 1850, art. X, § 3. Vol. 12, No. 2 Northeastern University Law Review 461 that grand juries had been gutted in the state but could still be summoned by a judge for special occasions, he predicted that this would almost never happen.353 This one hit the mark. The bill he was talking about was ultimately vetoed by the governor as an unconstitutional abridgement of the grand jury right.354 But in other states where grand juries were placed under the thumb of judges, they were a rare sight to behold. After Michigan relegated its grand juries to obscurity in 1850, for example, Ingham County—home of the state legislature, and thus brimming with corruption cases to investigate—only called three special grand juries in the 19th century.355 Intent on flogging the long-dead horse, calls to eliminate grand juries did not end with the 19th century. From the 1940s through the 1970s, there were allegations that prosecutors abused grand juries, and thus should be abolished.356 The abolition renais- sance in the 1970s was likely fueled by how grand juries were involved in hotbed political issues. The Nixon Administration used them to target political dissidents. Black Panthers, Catholic leftists, and antiwar militants were extensively investigated by inquests.357 Many felt that grand juries were being used so aggressively that they were chilling First Amendment speech rights. Senator Ted Kennedy said that under the Nixon Justice Department, “we have witnessed the birth of a new breed of political animal—the kangaroo grand jury.”358 For example, the FBI targeted two women who were staffers

353 Legislature of Vermont, supra note 111. 354 Vermont House Journal, supra note 67, at 398. Vermont would, however, ultimately do away with grand juries by statute. Vt. Stat. Ann. §§ 5601- 5606, 5967 (1973). According to one town, the office of grand juror “is mostly obsolete; the state’s attorneys provide most of the criminal investigation, enforcement and prosecution services in the local communities.” Shaftsbury Grand Juror, Town of Shaftsbury, https://shaftsburyvt.gov/town-officials/ grand-juror/ (last visited May 11, 2019). 355 For Lynching a Negro, Detroit Free Press, Feb. 4, 1894, at 3, https:// www.newspapers.com/image/119510666/; Grand Jury in Ingham County, Detroit Free Press, Nov. 14, 1899, at 7, https://www.newspapers.com/ image/119307595/. 356 Thomas, supra note 113, at 1269. 357 Costello, supra note 35. 358 Grand Jury Revision, CQ Almanac (1977). The Nixon Administration would get its comeuppance when grand juries were later used to investigate Nixon and his cronies, resulting in indictments and resignations. Most dramatically, grand juries were involved in the fight over Nixon’s Oval Office tapes. Costello, supra note 35. 462 Monea of the Episcopal Church’s National Commission on Hispanic Affairs in New York as part of an investigation into Puerto Rican domestic terrorism. The two women refused to testify before a grand jury and were jailed almost a year for it. Other times, grand juries were strategically used to summon witnesses who lived hundreds of miles away, causing great hardship to appear before them.359 At the federal level, the Advisory Committee on the Feder- al Rules of Criminal Procedure said “presentments as a method of instituting prosecutions are obsolete, at least as concerns the Fed- eral courts.”360 It thus took away the grand jury’s presentment power because keeping it “might encourage the use of the ‘run-away’ grand jury as the grand jury could act from their own knowledge or observation and not only from charges made by the United States attorney.”361 Courts were quick and willing to enforce this rule.362 Government officials were in no hurry to stand up for the grand jury. After all, they were the most likely targets of citizen panels.363 Nor could grand juries count on support from practitioners and academics.364 Both groups have been attacking the institution for decades.365 Critics say they should be eliminated altogether.366 They are hardly mentioned in law school.367 If they are, it is probably nothing more than to say they are an anachronism. The institution “has become the laughingstock of American criminal procedure.”368 To the extent that grand juries garnered more attention it was only for a fresh wave of criticism. Namely, they have bungled police-shooting cases.369 Faced with one such case, a prosecutor claimed that grand

359 Grand Jury Revision, CQ Almanac (1977). 360 Michael F. Buchwald, Of the People, by the People, for the People: The Role of Special Grand Juries in Investigating Wrongdoing by Public Officials, 5 Geo. J.L. & Pub. Pol’y 79, 86 (2007) (citing Fed. R. Crim. P. 7(a) advisory committee’s note 4). 361 Roger Roots, If It’s Not a Runaway, It’s Not a Real Grand Jury, 33 Creighton L. Rev. 821, 837 (2000). 362 Buchwald, supra note 360, at 86. 363 Phillip E. Hassman, Annotation, Authority of Federal Grand Jury to Issue Indictment or Report Charging Unindicted Person with Crime or Misconduct, 28 A.L.R. Fed. 851 § 2a. 364 See Washburn, supra note 49, at 2335, 2335 n.3 (2008). 365 Note, Restoring Legitimacy: The Grand Jury as The Prosecutor’s Administrative Agency, 130 Harv. L. Rev. 1205, 1205 (2017). 366 Washburn, supra note 49, at 2336 n.5. 367 Id. at 2336 n.4. 368 Id. at 2336. 369 See 2016 Democratic Party Platform, Am. Presidency Project (July 21, 2016), https://www.presidency.ucsb.edu/documents/2016-democratic- Vol. 12, No. 2 Northeastern University Law Review 463 juries were not transparent or accountable enough, and he conducted an investigation without the body (ultimately concluding there was not enough evidence to charge the police officer).370 Professor Andrew Leipold takes one of the harshest views. He claims that ordinary people are “not qualified” to determine what “probable cause” means because they have “no experience in weighing evidence.”371 He also doubts whether citizens are capable of understanding cases involving securities law, tax law, or RICO violations.372 As a result, he believes that only lawyers should be allowed to serve on grand juries, as they have the “expertise to assess the sufficiency of the evidence.”373 He is not alone. Grand jurors are often criticized for their ignorance and lack of qualifications.374 Former federal judge William Campbell, for instance, has also said that normal people lack the skills and training to perform sophisticated investigations.375 Gor- don Griller declared: “The problem with the grand jury system is the jury.”376 With hardly anyone to push back, it has become accepted truth that grand jurors are witless stooges of the prosecution. Replacing jurors with judges is held up as the answer.377 The legal handicaps—such as the removal of their ability to act independently, lack of due process for the accused, and so forth—imposed upon

party-platform (“We will require the Department of Justice to investigate all questionable or suspicious police-involved shootings, and we will support states and localities who help make those investigations and prosecutions more transparent, including through reforming the grand jury process.”); Allie Gross, California Becomes First State to Ban Grand Juries in Police Shooting Cases, Mother Jones (Aug. 13, 2015), http://www.motherjones.com/ politics/2015/08/california-becomes-first-state-ban-grand-juries-police- shooting-cases [https://perma.cc/U2XD-BN9K]. 370 Restoring Legitimacy, supra note 365, at 1214–15. 371 Leipold, supra note 1, at 294. 372 Id. at 302. 373 Id. at 322. 374 Thomas, supra note 113, at 1270. 375 Decker, supra note 107, at 366. 376 Griller, supra note 45. 377 E.g., Opposed to Grand Juries, supra note 111. Debates of the Convention to Amend the Constitution of Pennsylvania, supra note 101, at 215 (stating that grand juries useful in vetting criminal cases but also that “the substitution of stipendiary magistrates for aldermen would promptly supercede its usefulness in this regard); Editorial, Four Amendments, Harford Courant, Oct. 17, 1982, at 52, https://www.newspapers.com/ image/368728618/; The Grand Jury System, supra note 165. 464 Monea grand juries are seldom blamed. It is much easier to point the finger at lay people. There is nothing inherent about grand juries, however, that demands they defer to prosecutors. Trial juries show us that, in a fair setting, a panel of citizens is capable of putting the government to its proofs. If anything, trial juries have endured longstanding criticism that they make it too hard for the prosecutor.378 Though grand juries do almost uniformly indict today—at least at the federal level—this is more likely due to how heavily the deck is stacked in favor of indictment,379 rather than some intrinsic inability of grand jurors to weed out weak cases. Foreign Intelligence Surveillance Act (FISA) courts drive home the point. These courts approve Department of Justice “requests for surveillance warrants against foreign agents suspected of espionage or terrorism.”380 It hears only evidence from the government, hears it in private, and does not have to release information about the hearing.381 The results speak for themselves: over 33 years, these courts have rejected 11 warrant applications out of 33,900 filed—an approval rate of 99 percent.382 That is about the indictment rate of federal grand juries. So faced with a similarly one-sided process, judges behave no differently than grand jurors. For all the grief they suffer, grand juries have been resilient. Despite nearly two centuries of attacks, they are still alive, albeit weakened. The Fifth Amendment endures. This is no small feat. The United States remains one of only two countries in the world—the other being Liberia—that still uses grand juries.383

378 See Waldrep, supra note 46, at 28. 379 Reasons for this include that grand juries are closed to the press and public, can be used by prosecutors as fishing expeditions, do not have a judge present, and do no allow witnesses to have attorneys present. Natasha Lennard, Why 1 Anarchist Is Choosing Jail Over Grand-Jury Testimony, The Nation (Aug. 30, 2017), https://www.thenation.com/article/why-one-anarchist-is-choosing- jail-over-grand-jury-testimony/. 380 Erika Eichlberger, FISA Court Has Rejected .03 Percent Of All Government Surveillance Requests, Mother Jones (June 10, 2013), https://www.motherjones.com/ crime-justice/2013/06/fisa-court-nsa-spying-opinion-reject-request/. 381 Id. 382 Id. But see Larry Abramson, FISA Court: We Approve 99 Percent Of Wiretap Applications, NPR (Oct. 15, 2013), https://www.npr.org/sections/thetwo- way/2013/10/15/234840282/fisa-court-we-approve-99-percent-of-wiretap- applications (noting that the courts claim they demanded changes in a quarter of applications before approving them). 383 Nick Gremillion, What is a Grand Jury and How Does it Work?, WAFB (Nov. 30, 2017), https://www.wafb.com/story/36966860/what-is-a-grand-jury-and- how-does-it-work/. Vol. 12, No. 2 Northeastern University Law Review 465

Grand juries may no longer decline to indict with any regu- larity, but that does not mean they have no worth. It is easy to imagine changes to grand jury practice that would allow citizens to take a greater role. Beyond criminal process, a number of states to this day give grand juries additional powers, such as recommending disciplinary action for public officials384 or inspecting public buildings.385 Despite their wizened state, grand juries maintain a tender spot in our constitutional system. Court systems that have retained grand juries are almost universally praiseful of them, or least their juror handbooks are. Ohio calls them “an essential part of the legal system.”386 North Carolina writes: “Grand jurors are a fundamental part of the American judicial system.”387 New York raves that grand jurors perform “an important, essential public service.”388 Platitudes in grand juror handbooks are cheap. But many states have expressed their fondness in a more enduring manner. At Nevada’s constitutional convention, delegate Wilmot L. Warren read through the constitutions of the other states of the Union to better understand them. He determined that although state charters tended to be fluid, the least amended portion of constitutions was the bill of rights.389 Most of a constitution is used to erect the scaffolding of government. Powers of each office are laid out in detail. Prose is mostly bloodless and technical. But bills of rights are different. They tend to be at the front, shorter, and more eloquent. They set out the most important principles of the people who wrote it. And overwhelmingly, grand jury protections can be found here.390

384 See, e.g., N.Y. Crim. Proc. Law § 190.85(1) (McKinney 2006). 385 See, e.g., Okla. Stat. tit. 22, § 346 (2006). 386 Sup. Ct. Ohio, Grand Jury Duty in Ohio, https://www.supremecourt. ohio.gov/Publications/SCO/grandJury.pdf. 387 Mark Martin, A Message from the Chief Justice of the Supreme Court of North Carolina, in The Grand Juror Handbook (2017), https://www. nccourts.gov/assets/documents/publications/GrandJurorHandbook.pdf?Y_ AqeB4WaVEZuLAhf0Vc1puqiV9SDIzt. 388 Janet DiFore, Message from the Chief Judge, in Grand Juror’s Handbook (2017), https://www.nyjuror.gov/pdfs/hb_Grand.pdf. 389 State Constitutions, Inter Ocean, Apr. 12, 1879, at 4, https://www. newspapers.com/image/35069104/. 390 See, e.g., Del. Const. art. I, § 8; N.J. Const. art. I, § 9; S.C. Const. art. I, § 11; N.Y. Const. art. I, § 6; N.C. Const. art. I, § 22; Ky. Const. art. I, § 12; Tenn. Const. art. I, § 14; Ohio Const. art. I, § 10; Ark. Const. art. II, § 8; Fla. Const. art. I, § 15(a); Alaska Const. art. I, § 8. 466 Monea Vol. 12, No. 2 Northeastern University Law Review 467

Learning from Youngstown: Applying Land Use Scholarship to Promote Corporate Accountability

By Alaina Gilchrist*

* Northeastern University School of Law, Class of 2020. 468 Gilchrist

Table of Contents I. Introduction �� 469 II. The Mahoning Valley: Corporate Irresponsibility and Economic Decline ��473 A. Youngstown: Then and Now ��473 B. The Local 1330 Case ��474 III. Ownership, Negative and Positive Liberties, and Duties Owed to Others ��477 A. Negative and Positive Liberties in Local 1330 �� 480 IV. Alternative Property Claims �� 482 A. Defendants Cannot Abandon Their Property �� 482 B. Defendants Cannot Destroy Their Property �� 487 C. Defendants Must Use Their Property �� 491 V. Learning from Local 1330 �� 494 A. Potential Plaintiffs in Future Claims. �� 495 B. Potential Claim: Defendants Do Not Have the Right to Abandon �� 496 C. Potential Claim: Defendants Do Not Have the Right to Destroy �� 497 D. Potential Claim: Defendant’s Must Use Their Property �� 499 VI. Conclusion �� 500 Vol. 12, No. 2 Northeastern University Law Review 469

I. Introduction The Mahoning Valley, a Northeastern Ohio community comprised of Youngstown and the surrounding area, is an example of how a corporation’s decision to cease operations on its property can “lay waste a community.”1 Nearly 40 years ago, in a case (“Lo- cal 1330”) brought by U.S. Steel employees and Mahoning Valley community members, the Northern District of Ohio and the Sixth Circuit permitted United States Steel Corporation (“U.S. Steel”) to close its Mahoning Valley operations.2 Although the deciding judges acknowledged that this business decision would likely harm the community,3 the plaintiffs were unsuccessful and the mills closed.4 To this day, the community has not recovered.5 In March 2019, the community suffered further economic harm when General Motors ceased production at its Lordstown plant, which, after the steel mills closed, had accounted for about one third of the Mahoning Valley’s industrial employment.6 While the full effect of the Lordstown

1 Staughton Lynd, The Genesis of the Idea of a Community Right to Industrial Property in Youngstown and Pittsburgh, 1977-1987, 74 J. Am. His. 926, 955 (1987) [hereinafter Lynd, Genesis of the Idea of a Community]; see also Staughton Lynd, The Fight Against Shutdowns: Youngstown’s Steel Mill Closings 3–5 (1982) [hereinafter Lynd, The Fight Against Shutdowns]. 2 See Local 1330, United Steel Workers of Am. v. U.S. Steel Corp., 631 F.2d 1264, 1279–80, 1283 (6th Cir. 1980) [hereinafter Local 1330 II]; United Steel Workers of Am., Local No. 1330 v. U.S. Steel Corp., 492 F. Supp. 1, 2–4, 11 (N.D. Ohio 1980) [hereinafter Local 1330 I]. 3 See Local 1330 II, supra note 2, at 1279–80, 1283. 4 Lynd, The Fight Against Shutdowns, supra note 1, at 3–5. 5 Salena Zito, The Day that Destroyed the Working Class and Sowed the Seeds of Trump, N.Y. Post (Sept. 16, 2017), https://nypost.com/2017/09/16/the-day-that- destroyed-the-working-class-and-sowed-the-seeds-for-trump/; see also Lynd, Genesis of the Idea of a Community, supra note 1, at 955 (“Youngstown has become a symbol of how unilateral corporate decision making can lay waste a community.”). 6 Lynd, The Fight Against Shutdowns, supra note 1, at 5; see also Julia Horowitz, Production Will End at GM’s Lordstown, Ohio Plant on Wednesday, CNN Bus. (Mar. 5, 2019), https://www.cnn.com/2019/03/04/business/general- motors-lordstown/index.html. General Motors expects this business decision to result in “$6 billion in cash savings by 2020 —$4.5 billion in cost reductions and $1.5 billion in lower capital expenditures.” Michael Wayland, GM Targets 5 N.A. Plants for Closure, Will Slash 15% of Salaried Jobs, Automotive News (Nov. 26, 2018, 12:00 am), https://www.autonews.com/article/20181126/ OEM01/181129806/gm-targets-5-n-a-plants-for-closure-will-slash-15-of- salaried-jobs. Yet, counterintuitively, the Cruze, which was manufactured at the Lordstown plant, was “GM’s third-biggest seller” in 2018. Julia Horowitz, Production Will End at GM’s Lordstown, Ohio Plant on Wednesday, CNN Bus. (Mar. 470 Gilchrist closing remains to be seen,7 the U.S. Steel closures resulted in job loss for both U.S. Steel employees and for the greater community,8 increased mental and physical health ailments,9 increased poverty

5, 2019), https://www.cnn.com/2019/03/04/business/general-motors- lordstown/index.html; Michael Wayland, Unlike 2008, GM Cutting Jobs, Plants Proactively, Automotive News (Dec. 3, 2018), https://www.autonews.com/ article/20181203/OEM/181209962/unlike-2008-gm-cutting-jobs-plants- proactively. While this business decision is arguably profitable for General Motors, it will likely result in further economic devastation for the Mahoning Valley. David Welch, GM Squeezed $118 Million from its Workers, Then Shut Their Factory, L.A. Times (Mar. 29, 2019), https://www.latimes.com/business/la- fi-hy-general-motors-lordstown-ohio-union-20190329-story.html. 7 Editorial, Devastation Ripples from Lordstown Closure, Toledo Blade (May 2, 2019), https://www.toledoblade.com/opinion/editorials/2019/05/02/ devastation-ripples-outward-lordstown-general-motors-ohio-mary-barra/ stories/20190430156. 8 Lynd, The Fight Against Shutdowns, supra note 1, at 3–5. The steel mill closures resulted in rising unemployment and poverty rates, with the poverty rate remaining at over 20% for close to 20 years. Sherry Lee Linkon & John Russo, Steeltown U.S.A.: Work and Memory in Youngstown 200–01 (2002). The authors explain that: [A]s the poverty rate increased, a continuous cycle developed of economic dislocation, unemployment, outmigrations of middle- and working-class families, and the decline of the work ethic, values, neighborhoods, and community. The economic and community destabilization was reflected in the rise of broken families, anti-social behavior, and loss of control over the social behavior of children and adults. Id. 9 See Philip Harvey, Combating Joblessness: An Analysis of the Principal Strategies that have Influenced the Development of American Employment and Social Welfare Law During the 20th Century, 21 Berkeley J. Emp. & Lab. L. 677, 679–80 (2000) (“Unemployment is associated with severe mental and physical health problems, increased rates of suicide and attempted suicide, serious family and relationship problems, and increased criminal activity.”). In Youngstown, this has manifested in extreme racial disparities in health outcomes with blacks dying from preventable diseases at a higher rate than whites. Linkon & Russo, supra note 8, at 194. Vol. 12, No. 2 Northeastern University Law Review 471 rates,10 decreased property values,11 economic decline,12 population loss,13 a plethora of property vacancies,14 and increased unemployment rates.15 Notably, these harms have been disproportionately felt

10 Linkon & Russo, supra note 8, at 200 (“As unemployment in Youngstown increased in the late 1970s and 1980s, so did the poverty rate, which remained over 20 percent for twenty years.”). 11 Les Christie, 10 Dirt-Cheap Housing Markets, CNN Money, https://money. cnn.com/galleries/2011/real_estate/1105/gallery.cheapest_housing_ markets/index.html (last updated June 21, 2011) (stating Youngstown is the cheapest major housing market with median home values around $55,000); Ian Beniston, How to Fight Vacancy? Do It All, Shelter Force (Nov. 13, 2018), https://shelterforce.org/2018/11/13/how-to-fight-vacancy-do-it-all/ (“Market building is critical in a place like Youngstown, where property values have declined dramatically to a point where the market no longer functions in many parts of the city, and in other parts increasingly inhibits investment. For instance, in 1978 my parents purchased the house I grew up in for $24,000. It was a home on the north side of Youngstown that was in need of repair. They sold the same house 35 years later in good condition for $20,000. This same story is repeated throughout Youngstown and the Midwest.”). 12 See Stan Boney, ‘A Whole Generation, We Lost’: Declining Population Fueled by Job Loss Around Youngstown, WKBN (Apr. 19, 2019) https://www.wkbn.com/ news/a-whole-generation-we-lost-declining-population-fueled-by-job-loss- around-youngstown/ (stating Youngstown’s population decline is connected to the region’s economic decline). 13 Id.; Compare Dan Kildee et al., National Vacant Properties Campaign Policy Assessment Report, Regenerating Youngstown and Mahoning County Through Vacant Property Reclamation 10–11 (2009) https://smartgrowthamerica.org/app/legacy/documents/ youngstown-assessment.pdf (reporting that Youngstown’s population peaked in 1930 at 170,002); Quick Facts: Youngstown city, Ohio, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/youngstowncityohio/ INC110218 (last visited Mar. 14, 2020) (stating Youngstown’s population was 66,982 in 2010). 14 Kildee et al., supra note 13, at 10–11 (reporting that Youngstown’s population peaked in 1930 at 170,002; as of 2006, 22.8% of the housing stock was vacant; and, as of 2000, median value of a home was $40,900); see Ian Beniston, How to Fight Vacancy? Do It All, Shelter Force (Nov. 13, 2018), https://shelterforce.org/2018/11/13/how-to-fight-vacancy-do-it-all/ (stating that a 2009 survey revealed that Youngstown had 4,566 vacant buildings and 23,000 vacant lots but also recognizing that “[w]hile Youngstown continues to face tremendous challenges, the vacant property and physical conditions have improved significantly in the past five years”). 15 See Toledo Blade, supra, note 7. Singer paints the following picture of unemployment that resulted from the plant shutdowns: When a factory closes, many workers never find new jobs at all. Others are unemployed for long periods of time. Forty percent of the 88,000 steelworkers who lost their jobs between January 1979 and January 1984 because of plant closings were still looking 472 Gilchrist by black workers.16 These consequences all stem from a corporation’s unilateral decision to stop using its property for its originally intended purpose. This Note will articulate why U.S. Steel and corporations in general should be prevented from creating waste by closing their manufacturing plants and other properties. Part II will examine the events leading up to the Local 1330 case, explain how the case was decided, and assess the impacts of the decision on the Mahoning Valley. Part III will frame property law as an exercise in balancing the parties’ positive and negative liberties to prevent negative externalities, framing property law “as an institution designed to allo- cate rights over things in order to foster human flourishing.”17 Part IV will use this framework of property law to provide an overview of potential property law claims the Local 1330 could have brought. Specifically, it will articulate claims the plaintiffs could have brought to allege that U.S. Steel should not have been permitted to abandon,

for work at the end of that period. Twenty-five percent of this group left the work force entirely. Those that find jobs after plant closings often face large reductions in their wages. Steelworkers who found new jobs had a median income 40 per cent below their old wages. These difficulties, moreover, are disproportionately visited on older workers, less educated workers, women and racial minorities. Joseph William Singer, The Reliance Interest in Property, 40 Stan. L. Rev. 611, 713 (1988). 16 See Gerald D. Taylor, Unmade In America: Industrial Flight and the Decline of Industrial Communities 3 (Oct. 5, 2016), http://s3-us- west-2.amazonaws.com/aamweb/uploads/research-pdf/UnmadeInAmerica. pdf (“Unemployment rates for black workers have outstripped those for white workers at least since 1954, the earliest date for which robust unemployment data is available, and often by at least a factor of two. Further, black workers are disproportionately represented among the long-term (27+ weeks) unemployed. Making matters ever worse is the longstanding and well- documented wealth gap between black and white workers. Black Americans have historically lagged behind their white counterparts in several major wealth-building measures, such as household wealth, retirement savings, and homeownership. These facts suggest that black workers find it inordinately difficult to weather the storm brought on by prolonged economic distress— faced with the sudden loss of income, they not only have to lean more heavily on their personal financial reserves, but also deplete those reserves more fully than white workers. As such, black workers in those circumstances are more likely to fall into poverty, to be plunged into it more deeply, and to find it more difficult to recover in its aftermath.”). 17 Oskar Liivak & Eduardo M. Peñalver, The Right Not to Use in Property and Patent Law, 98 Cornell L. Rev. 1437, 1465 (2013). Vol. 12, No. 2 Northeastern University Law Review 473 destroy, or not use its property. Finally, Part V will examine claims future individuals who may be affected by a manufacturing plant closure can raise to argue that the corporation should be prevented from abandoning, destroying, or not using its property.

II. The Mahoning Valley: Corporate Irresponsibility and Economic Decline

A. Youngstown: Then and Now Youngstown, Ohio, which once represented a vibrant, indus- trialized community, now faces a host of challenges stemming from lack of economic opportunities.18 For most of the 1990s, Youngstown consistently placed in the top ten cities with the highest murder rate per capita with a rate eight times that of the national average.19 Youngstown’s current challenges were created because “[d]eindus- trialization and disinvestment exerted an enormous cost in terms of employment, earnings and fringe benefits, and destruction of the social fabric of the local community.”20 This present landscape is in stark contrast to the Youngstown of 40 years ago. In the 1970s, Youngstown

was a place in which the American Dream seemed to have come true for many working-class families. Houses to rent were hard to find: most people owned their homes, and were to be seen mowing their neat

18 Linkon & Russo, supra note 8, at 190. Black women were especially affected by the murder rate, and between 1988 and 1997 black women under the age of 65 were murdered at a rate higher than anywhere else in the entire country and were eleven times more likely to be murdered than their white counterparts. See id. at 194. The crime rate increased approximately 15 years after the steel mills closed because of the lack of opportunity for the children who grew up in the neighborhoods that were adversely affected by deindustrialization. Id. at 197. The authors point out that: Lacking economic opportunities and access to real wealth, these young adults turned to selling drugs, especially crack cocaine, to largely suburban residents who do ‘drive-bys’ into poor neighborhoods. Most young adults in Youngstown do not have the money to purchase drugs; rather, they have opportunities to sell drugs, purchase guns, and join gangs to protect territory and profits. Id. 19 Id. at 193. 20 Linkon & Russo, supra note 8, at 196. 474 Gilchrist

lawns, painting, or adding a patio. A few miles [away] was [the] Eastwood Mall, one of several huge shopping malls on the outskirts of Youngstown . . . Of- ten three generations of a family worked in the same [steel] mill and lived close to each other in the same neighborhood . . . There was a sense that this way of life—with its materialism and false security, as well as with its dignity—was created by the union.21

This union was the United Steel Workers, which represented workers at several Mahoning Valley steel mills.22 These mills were the foundation of the region’s economy and they provided a path for economic mobility.23 Jobs at these mills also encouraged many southern blacks to migrate to Youngstown, although racism prevented them from obtaining permanent positions in the mills for many years.24 This racial hierarchy persisted even after blacks were permitted to hold permanent positions in the mills because they were often only granted these jobs after the white workers sought jobs outside of the mill. Resultantly, blacks “often held the worst jobs and endured racism from both companies and unions.”25 In spite of the racism within the mills, such jobs still gave black workers a ticket into the middle class likely not present in other regions of the country.26

B. The Local 1330 Case The Sixth Circuit’s decision in the Local 1330 case wrong-

21 Lynd, The Fight Against Shutdowns, supra note 1, at 6. 22 Id. at 3–5, 15. 23 See Kildee et al., supra note 13, at 8–11; Linkon & Russo, supra note 8, at 198, 200–01. 24 Linkon & Russo, supra note 8, at 198. Specifically, these black workers were often recruited to work at the mills while the white workers were on strike. See also Daniel Denvir, Defending Youngstown: One City’s Struggle to Shrink and Flourish, City Lab (Jan. 31, 2013), https://www.citylab.com/equity/2013/01/ defending-youngstown-one-citys-struggle-shrink-and-flourish/4485/ (noting that black workers “first arrived at a mill owner’s invitation to labor as scabs during strikes.” This means that they worked under the very conditions that caused the white workers to go on strike.). 25 Linkon &Russo, supra note 8, at 198; see also John W. Goodwin Jr., Youngstown in Early 1900s, Blacks Flocked, The Vindicator (Feb. 9, 2004), https://vindyarchives.com/news/2004/feb/09/youngstown-in-early-1900s- blacks-flocked/ (noting that blacks often had the “dirtiest, hottest, and most dangerous [jobs]”). 26 See Linkon & Russo, supra note 8, at 198. Vol. 12, No. 2 Northeastern University Law Review 475 ly permitted U.S. Steel to make a business decision that devastat- ed an entire community. Youngstown today is different from the Youngstown of the 1970s because of the economic decline created by the closures of multiple Mahoning Valley steel mills in the late 1970s and early 1980s. U.S. Steel initially promised to keep these mills open if they became profitable, but reneged on this promise, later basing their decision to close on their claim that the mills were not profitable.27 On January 3, 1978, U.S. Steel announced that it would be closing the McDonald Works and the Ohio Works, two Mahoning Valley steel mills.28 Contrary to U.S. Steel’s assertions, at least one of the mills was about breaking even at the time of closure and likely could have increased its profitability if it had been properly upgraded.29 Sensing the potential impact of these closures on their community, the steel mill workers attempted to prevent economic decline by filing theLocal 1330 lawsuit. On Friday, December 21, 1978, employees who worked at the McDonald Works and the Ohio Works filed suit against U.S. Steel in the Northern District of Ohio.30 The workers filed suit as members of Locals 1330 and 1337 of the United Steel Workers and were joined by two other United Steel Workers locals, the district’s Congressman, and Ohio’s Attorney General.31 The plaintiffs set forth four causes of action: (1) breach of contract, (2) promissory estoppel, (3) violation of anti-trust statutes, and (4) a property right.32 They intended to use the federal courts to mandate that U.S. Steel continue to operate the two mills or, alternatively, require U.S. Steel to sell the two plants to the plaintiffs.33 The plaintiffs’ fourth claim asserted that they had a property

27 U.S. Steel alleged that the mills were not profitable in its answer to the complaint. See Local 1330 II, supra note 2, at 1266 (“Defendant . . . claim[s] that the plants were unprofitable and could not be made otherwise due to obsolescence and change in technology, markets, and transportation.”) 28 Agis Salpukas, U.S. Steel to Close Youngstown Mills; Timing is Uncertain, NY Times, Jan. 4, 1978, at D1. 29 See Local 1330 II, supra note 2, at 1274, 1278; Lynd, The Fight Against Shutdowns, supra note 1, at 17, 172–73, 209. 30 Lynd, The Fight Against Shutdowns, supra note 1, at 143. 31 Local 1330 II, supra note 2, at 1264 n.1. 32 Local 1330 I, supra note 1, at 3–4. 33 Local 1330 II, supra note 2, at 1265; Local 1330 I, supra note 2, at 3–4 (stating claims as “breach of contract, promissory estoppel, violation of anti-trust statutes and property right.”). Mahoning Valley residents had also raised over four million dollars to purchase the plants themselves. Lynd, The Fight Against Shutdowns, supra note 1, at 38–40. 476 Gilchrist interest in the plants by way of an easement.34 The complaint read:

52. A property right has arisen from the long-established relation between the community of the 19th Congressional District and Plaintiffs, on the one hand, and Defendant on the other hand, which this Court can enforce. 53. This right, in the nature of an easement, requires that Defendant: a. Assist in the preservation of the institutionof steel in that community; b. Figure into its cost of withdrawing and closing the Ohio and McDonald Works the cost of rehabil- itating the community and the workers; c. Be restrained from leaving the Mahoning Valley in a state of waste and from abandoning its obligation to that community.35

Both the District Court and the Sixth Circuit rejected this claim, stating that there was no source of law or precedent that would permit a finding of an easement between the plaintiffs and U.S. Steel.36 The Sixth Circuit affirmed the District Court’s denial of relief on all claims except for the plaintiffs’ anti-trust claims. The District Court’s initial decision on this matter was instead vacated and remanded for further proceedings.37 However, scholars agree that the case was wrongly decided and argue that the court should have recognized that the workers had a property right by way of an easement because, contrary to the conclusions of the judges in this case, precedent for the creation of property rights of the kind asserted by the union did exist.38 While

34 Local 1330 II, supra note 2, at 1280. 35 Id. 36 Local 1330 II, supra note 2, at 1279–80; Local 1330 I, supra note 2, at 11. Judge Lambros, the District Court Judge, rejected this claim even though he had originally suggested that the plaintiffs amend their complaint to include it.See Local 1330 II, supra note 2, at 1279–80; see also Lynd, The Fight Against Shutdowns, supra note 1, at 169, 209. 37 Local 1330 II, supra note 2, at 1283. The court record does not indicate that there was any further litigation concerning the antitrust claim. 38 See Karl Klare, Teaching Local 1330—Reflections on Critical Legal Pedagogy, 7 Harv. Unbound J. Legal L. 81, 83 (2011) (acknowledging he believes “that the plaintiffs’ common law theories were sound and should have prevailed”). Vol. 12, No. 2 Northeastern University Law Review 477 it certainly would have been possible for the court to reach that decision, there are also alternative property law claims that could have proven successful. Specifically, the plaintiffs may have succeeded if they had brought claims alleging that U.S. Steel should not have been prevented from abandoning, destroying, or not using its property. Examining the principles enshrined in property law provide a framework on how the Local 1330 plaintiffs may have succeeded on these other causes of action.

III. Ownership, Negative and Positive Liberties, and Duties Owed to Others The obligations enshrined in property rights reveal that U.S. Steel should have been prevented from abandoning, destroying, or not using its property. Property rights are determined by examining relationships between the parties.39 Within the relationship, the parties will have both negative and positive liberties.40 Negative liberty is the “absence of obstacles that are external to a person, which would include the absence of government restraints.”41 Positive liberty, on the other hand, is defined as “the availability of meaningful choice and capacity to exercise it.”42 An entity exercising its negative liberty can infringe upon others’ abilities to exercise their positive liberties by preventing those with positive liberties from exercising their own choices and implementing their own vision of their communities.43 Prominent legal scholar Sidney A. Shapiro explains that many po-

Property scholar Joseph Singer has also asserted that the plaintiffs should have succeeded on their property claim. He has said: I do not want to be so disingenuous as to claim that recognition of such entitlements would not constitute a substantial change in the law, but I do want to assert that the legal system contains a variety of doctrines—in torts, property, contracts, family law and in legislative modifications of those common law doctrines—that recognize the sharing or shifting of various property interests in situations that should be viewed as analogous to plant closings. If I am right, the courts had access to enforceable legal rules based on principles that could have been seen as applicable precedent for extension of existing law by creation of this new set of entitlements. Singer, supra note 15, at 621. 39 See Singer, supra note 15, at 643. 40 See Sidney A. Shapiro, Inequality, Social Resilience and the Green Economy, 86 UMKC L. Rev. 963, 967 (2018). 41 Id. 42 Id. 43 Id. 478 Gilchrist litical philosophers have recognized the importance of positive liberties. For instance, Shapiro notes that John Rawls argued “that for citizens to be free and equal, reasonable and rational, they required a set of ‘primary goods’ that include both various negative liberties” along with “‘positions of authority,’ ‘income and wealth,’ and the kind of social recognition that ‘gives citizens a sense of self-worth and the confidence to carry out their plans,’ which are positive liberties.”44 The exercise of positive and negative liberties are constantly in tension: “Freedom for the pike is death for the minnows.”45 The imbalance in the exercise of these liberties is intentional, as “they are the direct result of the allocation of power determined by the assignment of legal entitlements.”46 Therefore, balancing the relationship between parties means that the entity with the negative liberty owes affirmative obligations to the entity with the positive liberty.47 When determining property rights, it is necessary to “ad- just[] the relationships among the parties.”48 Property owners pos-

44 See id. at 967–68. 45 Id. at 968. 46 Singer, supra note 15, at 662–63 (“[S]ome members of the common enterprise are more vulnerable than others. These inequalities are not natural; they are the direct result of the allocation of power determined by the assignment of legal entitlements.”). 47 See id. at 657. Shapiro offers the following explanation of the intentionality of negative and positive liberties: Berlin started with the concept of “negative liberty” which he defined as the absence of obstacles that are external to a person, which would include the absence of government restraints. There is also “positive liberty” which Berlin defines as the availability of meaningful choice and the capacity to exercise it. Positive liberty refers first to “the range of issues or problems over which one can exercise control” and second to the “resources, both material and non-material, that enable one to envision alternatives and carry them out.’” An exclusive focus on protecting negative liberty misses the ways that unregulated markets deny less advantaged individuals control over their own lives, limiting their positive liberty. When individuals lack meaningful choice through no fault of their own, they lack positive liberty in the sense that they do not have meaningful choice or the capacity to exercise it. When government removes such obstacles, as for example by reducing the cost of education or training for those who cannot afford it, despite their best efforts, government increases their positive liberty. Shapiro, supra note 40, at 967 (quoting Isaiah Berlin, Two Concepts of Liberty, in Four Essays on Liberty, 118, 121–22, 131–34 (1969)). 48 See Singer, supra note 15, at 659. Vol. 12, No. 2 Northeastern University Law Review 479 sess land “in trust for the community and for others with whom they establish continuing relationships” in addition to possessing the property for their own interests.49 In other words, property law is infused with obligations to share, which are embedded within the structure of property law.50 These obligations focus on both individual and collective goods, thereby accounting for both the owner’s autonomy (negative liberties) and the community’s “health and stability” (positive liberties).51 Under this conception of ownership, all property operates under servitudes that benefit the community in which the property exists.52 However, “[w]hen ownership is conceived of as a social practice permeated by obligation. . . . owners’ (negative) property liberties and the (affirmative) obligations associated with ownership stand on conceptually equal footings.”53 This balancing of parties’ abilities to exercise their negative and positive liberties is infused within property law jurisprudence. The law recognizes two circumstances where a property owner should not be permitted to exercise their negative liberty without restriction: “(1) where certain uses will engender negative externalities and (2) where the owner lacks the capacity to make a rational judgment about how the property should be used.”54 Negative ex-

49 See id. at 657; see also Eduardo M. Peñalver, The Illusory Right to Abandon, 109 Mich. L. Rev. 191, 216 (2010) (arguing that because land is a finite resource, repercussions of its use are more severe for humans and other beings). 50 Peñalver, supra note 49, at 213. Singer offers the following explanation of these obligations to share: The doctrines of adverse possession, prescriptive easements, easement by estoppel and easement by necessity all stand for the same proposition: Where a non-owner of property comes to rely upon access to property, the law sometimes recognizes the non-owner’s vulnerability and shifts some or all of the property rights from the title owner to the non-owner. The rules in force therefore protect the non-owner’s reliance on her relationship with the owner that made access to the land possible. Singer, supra note 15, at 672. 51 Peñalver, supra note 49, at 213. 52 Id. 53 Id. 54 Lior Jacob Strahilevitz, The Right to Destroy, 114 Yale L.J. 781, 797 (2005) [hereinafter Strahilevitz, The Right to Destroy]. This Note will only analyze the negative externalities that U.S. Steel’s decision created, it will not analyze whether U.S. Steel’s decision was rational. Singer offers the following explanation of how property law prevents owners from using their property in ways that produce negative externalities for the community: The rules in force also recognize the interdependence of persons in the community by sometimes prohibiting owners of valuable 480 Gilchrist ternalities, the first circumstance courts look to prevent, are the primary focus of this Note. They are defined as “costs an actor imposes on third parties” that “the actor is unlikely to take . . . into account adequately in his decision-making.”55 In Local 1330, the court failed to limit U.S. Steel’s exercise of negative liberties to alleviate both the negative externalities of the company’s decision, and the resultant restraints on Mahoning Valley residents’ positive liberties.

A. Negative and Positive Liberties in Local 1330 Here, U.S. Steel had established relationships with both the workers and the Mahoning Valley community—relationships that attached affirmative obligations to U.S. Steel’s exercise of its negative liberties. The workers and U.S. Steel had a relationship through their involvement “as part of a common enterprise,”56 the operation of the steel mills. In order to produce steel, the corporation relied upon its workers to provide the necessary labor in the same way it relied upon its shareholders for funding.57 In fact, the workers’ length of service and inability to easily withdraw from the relationship may have made their investment greater than that of the shareholders.58

resources from wasting them or otherwise making them unavailable to the public (the public trust doctrine). They also recognize the mutual dependence of persons in the community by forcing owners to contribute to alleviating the external consequences of their land use decisions (nuisance; linkage requirements). Singer, supra note 15, at 678. 55 Lisa Grow Sun & Bringham Daniels, Mirrored Externalities, 90 Notre Dame L. Rev. 135, 137 (2014). 56 Singer, supra note 15, at 657 (describing this relationship: “Rather than seeing the corporation and the workers in isolation, and assuming that the corporation has absolute freedom of ‘its’ property as it sees fit, in the absence of a clear contractual obligation to the contrary, we can see the corporation and the workers as together having established and relied on long-standing relations with each other in creating a common enterprise.”). 57 See id. (quoting Clyde W. Summers, Codetermination in the United States: A Projection of Problems and Potentials, 4 J. Comp. Corp. L. & Sec. Reg. 155, 170 (1982)). 58 See id. Clyde Summers explains that: [T]he corporation is more than the shareholders and includes the employees. If the corporation is conceived in relatively narrow terms as an operating institution combining all factors of production to conduct an on-going business, then the employees who provide the labor are as much members of that enterprise as the shareholders who provide the capital. Indeed, the employees may have made a much greater investment in the enterprise by Vol. 12, No. 2 Northeastern University Law Review 481

Additionally, U.S. Steel had a relationship with the entire Mahoning Valley community that even Judge Lambros, the District Court Judge who decided the case, recognized.59 The former union president of the Ohio Works plant poignantly described this relationship in a speech delivered at a mass meeting of the union’s members:

They’ve taken money out and milked us dry. Money that came out of your sweat, backs and muscles. Out of your sweat, out of your muscle, they took millions and millions, hundreds of millions and put it in ho- tels, Disneyland, everywhere except in Youngstown. We put our lives into the valley. We built the homes and the churches and the hospitals. Now they’re cutting us off. You invested here. You built houses and paid taxes that built the schools and highways. And we want U.S. Steel to invest here, right here. That’s the issue.60

their years of service, may have much less ability to withdraw, and may have a greater stake in the future of the enterprise than many of the stockholders. Id. Although this Note will not explore this alternative way of recognizing the workers’ contribution to the shared enterprise, it is pertinent to note that European Union members require employee representatives to serve on corporations’ boards of directors. Wanjiru Njoya, Job Security in a Flexible Labor Market: Challenges and Possibilities for Worker Voice, 33 Comp. Lab. L. & Pol’y J. 459, 471 (2012) (“This broader formulation of corporate strategy, conceptualized in English law as ‘enlightened shareholder value,’ recognizes that the integrity of corporate policy requires the input of all affected participants in corporate enterprise.”). 59 Judge Lambros poignantly described this relationship during a pretrial conference: Everything that has happened in the Mahoning Valley has been happening for many years because of steel. Schools have been built, roads have been built. Expansion that has taken place is because of steel. And to accommodate that industry, lives and destinies of the inhabitants of that community were based and planned on the basis of that institution: Steel. We are talking about an institution, a large corporate institution that is virtually the reason for the existence of that segment of this nation (Youngstown). Without it, that segment of this nation perhaps suffers, instantly and severely. Whether it becomes a ghost town or not, I don’t know. I am not aware of its capability for adapting. Local 1330 II, supra note 2, at 1279–80. 60 Lynd, The Fight Against Shutdowns, supra note 1, at 139. 482 Gilchrist

When U.S. Steel decided to exercise its negative liberty by closing the McDonald and Ohio Works, it infringed upon the workers and community members abilities to exercise their positive liberties. U.S. Steel restrained the choices that were available to the workers and the community, and limited the resources the workers and the community had to continue to operate the mill.61 The workers wanted to continue to operate the mills themselves.62 When the court upheld U.S. Steel’s ability to exercise its negative liberty through use of its property as it desired without governmental constraint, it prevented the workers and the community from being able to operate the mills on their own, and preserve the community’s livelihood, thus restraining their ability to exercise their positive liberties.63 The Mahoning Valley’s subsequent economic devastation continues to severely limit its residents’ positive liberty.64 Because U.S. Steel wanted to cease operations at the Ohio Works and McDonald Works but did not want to sell these plants to the workers, the only persons who wanted to operate them at full capacity, it had three options: abandon the property, destroy the property, or let the property fall into disuse. Each option would have been an exercise of U.S. Steel’s negative liberty. As discussed, such exercises are bound with affirmative obligations to offset any interference in the community’s exercise of its positive liberties— affirmative obligations that the judges deciding the Local 1330 case should have considered.65

IV. Alternative Property Claims

A. Defendants Cannot Abandon Their Property U.S. Steel should not have been permitted to abandon its steel mills because this exercise of its negative liberty created negative externalities for the Mahoning Valley residents, thereby restricting the exercise of the residents’ positive liberties.66 Property is

61 Shapiro, supra note 40, at 967; see also supra notes 8–15. 62 See Local 1330 II, supra note 2, at 1265–66; see generally Lynd, The Fight Against Shutdowns, supra note 1, at 43–44. 63 See Local 1330 II, supra note 2; supra Introduction and Section II. 64 See supra Introduction and Section II. 65 Strahilevitz, The Right to Destroy, supra note 54, at 797. 66 U.S. Steel argued in its appellant brief that it had the right to abandon Youngstown. See Local 1330 II, supra note 2, at 1266 (“The company also asserts an absolute right to make a business decision to discharge its former Vol. 12, No. 2 Northeastern University Law Review 483 abandoned when the owner voluntarily “relinquish[es] all interests in the property, with no intention that it be acquired by any particular person.”67 Abandoning property opens it up to new ownership and the new owner is the first person to take control of the property after abandonment.68 Recently, there have been two competing schools of thought as to whether abandonment should be permitted.69 On one end of the spectrum, Eduardo M. Peñalver argues that the common law principle forbidding land from being abandoned “reflects discomfort with abandonment through and through” and forbids chattels, including buildings and manufacturing equipment, from being abandoned as well.70 Conversely, Lior Jacob Strahilev- itz argues that owners should be permitted to abandon land “upon cleaning up or improving the property sufficiently to give it positive market value.”71 Peñalver’s categorical prohibition on abandoning both chattels and land would have prevented U.S. Steel from abandoning its mills.72 Yet, even Strahilevitz’s more permissive approach may have prohibited U.S. Steel from abandoning its property. Even if the property did not have positive market value when U.S. Steel abandoned it, as the company alleged, the workers were the only people who expressed interest in continuing to operate the mill at full capacity, and they did not have the capital to make necessary updates to the plants’ furnaces.73

employees and abandon Youngstown.”). 67 Lior Jacob Strahilevitz, The Right to Abandon, 158 U. Pa. L. Rev. 355, 375–76 (2010) [hereinafter Strahilevitz, The Right to Abandon]. Here, U.S. Steel would have had difficulty abandoning its property because although it did not want the property to be acquired by a specific entity, there were other entities that it affirmatively did not want to acquire the property. See Lynd, The Fight Against Shutdowns, supra note 1, at 159 (quoting a U.S. Steel executive who said that he did not want the workers to acquire the plant because “[U.S. Steel] obviously would not be interested in selling the plants to a group of people that can only be successful if they were subsidized by the federal government. We are not, in other words, interested in creating subsidized competition for ourselves at other locations.”). 68 Strahilevitz, The Right to Abandon, supra note 67, at 376. 69 See generally Peñalver, supra note 49; Strahilevitz, The Right to Abandon, supra note 67. 70 Peñalver, supra note 49, at 215. 71 Strahilevitz, The Right to Abandon, supra note 67, at 419. 72 See Peñalver, supra note 49, at 215. 73 See Lynd, The Fight Against Shutdowns, supra note 1, at 40 (stating residents raised over four million dollars to purchase the plants themselves); id. at 209 (stating that open hearths could have been updated for approximately $150 million). 484 Gilchrist

However, it is likely that the mills could have become profitable. Both of the mills used less efficient open hearths that took between nine and ten hours to make steel, as opposed to basic oxygen furnaces that produced steel in just 45 minutes and required less manpower.74 U.S. Steel could have updated the mills with basic oxygen furnaces for approximately $150 million at each site.75 While this may seem like a large sum of money, U.S. Steel had the funds, but chose to purchase the Marathon Oil Company for $6.3 billion in 1981 instead of using that capital to offset the negative externalities of its decision to close its Ohio steel mills.76 In addition, the Youngstown Works was “about breaking even” when U.S. Steel decided to close the mill and was actually producing enough revenue to cover all of its fixed expenses.77 Since updating the furnaces would have increased the mill’s efficiency, it is likely that such an improvement could have helped the mills turn even more of a profit in the future. If U.S. Steel had updated its mills, then, according to Strahilevitz, the property would have been sufficiently “cleaned up” and suitable for abandonment. Both Peñalver and Strahilevitz state that property law requires balancing the interests of those with the negative liberties and those with the positive liberties with the goal of mitigating negative externalities.78 While Strahilevitz argues that owners should be able to dispose of possessions that they do not want anymore, he

74 Lynd, The Fight Against Shutdowns, supra note 1, at 16. 75 Id. at 209. 76 Id. 77 Id. at 172–73; see Local 1330 II, supra note 2, at 1266 (“Defendant . . . claim[s] that the plants were unprofitable and could not be made otherwise due to obsolescence and change in technology, markets, and transportation.”). 78 See Peñalver, supra note 49, at 213; Strahilevitz, The Right to Abandon, supra note 67, at 405. Instead of using the phrase “negative externalities,” Peñalver does acknowledge that: [A]n important aim of property law is to promote human flourishing by enforcing and encouraging certain forms of virtue, including obligations to share. . . . [T]he sorts of interests that underlie the assessment of a particular duty . . . include such collective goods as the health and stability of the community in which a particular parcel of property is situated as well as the shared values and commitments on which that health and stability depends. Peñalver, supra note 49, at 213. Since a community’s health and stability is threatened by negative externalities, it is likely Peñalver would not object to this term. Thus, “negative externalities” will be the term that this Note uses moving forward. Vol. 12, No. 2 Northeastern University Law Review 485 asserts that these owners have obligations to others to ensure that the way they act with respect to their property does not infringe upon others’ positive liberties.79 Peñalver, who also recognizes that liberties are enshrined in property law, asserts that property law promotes the collective good, community health, and stability through “obligations to share.”80 Moreover, both scholars agree that property owners have a duty to mitigate the negative externalities they may create through their interactions with and use of their own property. 81 Some of the negative externalities the common law against abandonment seeks to prevent include decreases in tax revenue that the community relies upon for funding, blight, a subsequent burden placed on neighbors who might maintain part of the property to mitigate the effects of this blight,82 a depreciation in the property’s value as it awaits a new owner to claim it, vandalism, crime,83 and loss of value to adjoining property.84 Many of these negative externalities occurred when U.S. Steel closed the Ohio Works and McDonald Works. Here, the effects of abandonment were even more severe because industrial, not personal, property was abandoned.85 As has been emphasized in this Note, the property’s industrial nature not only resulted in a large mass of land not being used, but also led to job loss and financial hardship. After the mills closed, personal problems increased within the community as the rates of “alcoholism, di- vorce, child and spouse abuse, [and] suicide” increased.86 For nearly 20 years after the mills closed, Youngstown had the highest unemployment rate and per capita welfare costs in the state of Ohio.87 This dire picture of economic devastation and business failure coin- cided with an increase in arson that further depleted property value in the Mahoning Valley.88 Furthermore, the community was forced

79 Strahilevitz, The Right to Abandon, supra note 67, at 371, 405. 80 See Peñalver, supra note 49, at 213. 81 Strahilevitz, The Right to Abandon, supra note 67, at 405; Peñalver, supra note 49, at 213. 82 Peñalver, supra note 49, at 217. 83 Strahilevitz, The Right to Abandon, supra note 67, at 375. 84 See David A. Super, A New New Property, 113 Colum. L. Rev. 1773, 1854 (2013) (discussing the impact of long-term vacancies caused by foreclosures). 85 See Lynd, The Fight Against Shutdowns, supra note 1, at 4. 86 Id. 87 Linkon & Russo, supra note 8, at 196. 88 Id. at 222–23 (“In the 1980s, as the city’s population dropped, its economic base crumbled, unemployment and business failures increased, and the real estate market crashed, Youngstown averaged 2.3 fires daily with an estimated 486 Gilchrist to invest millions of dollars to clean up the natural environment that the mills had polluted.89 Thus, because the court chose to protect U.S. Steel’s ability to exercise its negative liberty, Mahoning Valley members lost “control over their own lives, limiting their positive liberty.”90 The negative externalities created by U.S. Steel’s abandonment continue to severely limit the economic choices of Mahoning Valley residents.91 By choosing not to restrict a corporation’s exercise of its negative liberty, the court restricted the positive liberties of less advantaged individuals.92 U.S. Steel’s ability to exercise its negative liberty could have been balanced with the need to protect the positive liberties of Mahoning Valley residents if U.S. Steel had been required to offset the negative externalities that its exercise of its right to abandon its property produced.93 These negative externalities could have been offset by requiring U.S. Steel to update the furnaces at theOhio Works and the McDonald Works. The negative externalities of U.S. Steel’s decision to abandon Youngstown, which it admitted was its intention, would have rendered U.S. Steel’s exercise of its negative liberty impermissible under both Peñalver and Strahilevitz’s views on abandonment. Peñalver’s “duty to share” would have prevented U.S. Steel from abandoning its property, as doing so would destabilize the Mahoning Valley and upset the community’s health and safety. Meanwhile, Strahilevitz’s acknowledgement that an entity must mitigate potential negative externalities before abandoning its property would also prohibit U.S. Steel from closing the steel mills without making necessary updates.

dollar loss between $1.75 million and $9 million annually. In the 1990s, Youngstown averaged 310 arson fires with an estimated loss of $2 million annually. There is little doubt that residential, commercial property, and automobile arson fires became commonplace in Youngstown in the last two decades of the twentieth century.”). Id. This increase in arson could be linked to the increase in vacant property that occurred as the population declined. See Reducing Arson at Vacant and Abandoned Buildings, U.S. Fire Admin. https:// www.usfa.fema.gov/prevention/outreach/arson_prevention_abandoned_ bldgs/ (last visited Mar. 16, 2020). 89 See Linkon & Russo, supra note 8, at 232 (noting that the Mahoning River is one of the most polluted streams in the country and that seven million dollars in tax abatements had been invested in cleaning up former mills with very marginal results). 90 Shapiro, supra note 40, at 967. 91 See Introduction (describing current plight of Youngstown). 92 Shapiro, supra note 40, at 967. 93 See id. Vol. 12, No. 2 Northeastern University Law Review 487

B. Defendants Cannot Destroy Their Property Because U.S. Steel should not have been permitted to abandon its property, the only other unilateral method of disposing of its property would have been to destroy its steel mills.94 As land is the only form of property that cannot be destroyed, U.S. Steel’s decision to destroy its chattel property was a decision to “deprive a resource of its immortality.”95 Determining whether an entity has the right to destroy requires determining the nature of ownership and the rights that property owners owe to others.96 The essence of ownership ne- cessitates identifying established relationships between parties.97 Here, as discussed above, the steel mill and the process of making steel was a common enterprise between U.S. Steel and the workers and the community.98 By the nature of this relationship, U.S. Steel should not have been permitted to exercise its negative liberty of destroying the mills because doing so severely restricted the workers and the community from being able to exercise their positive liberties.99 Courts tend to restrict an owner’s ability to exercise their negative liberty through property destruction precisely because such an act creates negative externalities.100 An owner destroys their

94 Strahilevitz, The Right to Abandon, supra note 67, at 360 (categorizing abandonment and destruction as the only unilateral methods of disposing of property and distinguishing destruction of property from a transfer of property). 95 See Strahilevitz, The Right to Destroy, supra note 54, at 796; see also Peñalver, supra note 49, at 216 (acknowledging that although land cannot be completely destroyed “its usefulness to human beings and to ecosystems can be irreparably damaged.”). 96 Strahilevitz, The Right to Destroy, supra note 54, at 795. 97 See Singer, supra note 15, at 657. 98 Id. (“Rather than seeing the corporation and the workers in isolation, and assuming that the corporation has absolute freedom to dispose of ‘its’ property as it sees fit, in the absence of a clear contractual obligation to the contrary, we can see the corporation and the workers as together having established and relied on long-standing relations with each other in creating a common enterprise.”). 99 See generally Shapiro, supra note 40, at 967. 100 Strahilevitz, The Right to Destroy, supra note 54, at 796. Strahilevitz’s article notes that “to destroy” was removed from the definition of “owner” in the 1999 edition of Black’s Law Dictionary. Id. at 783. The most recent version of Black’s Law Dictionary, which was published in 2019, also excludes “to destroy” from both its definition of “ownership” and its definition of “owner.” Owner, Black’s Law Dictionary (11th ed. 2019); Ownership, Black’s Law 488 Gilchrist property when their “acts or omissions eliminate the value of all otherwise valuable future interests in a durable thing.”101 A court’s main concern when restricting this right is to prevent the negative externality of waste.102 Thus, when a living person tries to destroy their property, “the courts express concern about the diminution of resources available to society as a whole.”103 When a deceased person’s will certifies that their property should be destroyed, “the court’s focus is generally on preventing a loss to the estate and the beneficiaries.”104 Courts restrict individuals’ rights to destroy their property in an array of situations, but their reasons are typically the same: to prevent negative externalities.105 For instance, a Pennsylvania court prohibited a woman from being buried with her jewelry in order to prevent the negative externality of grave digging.106 The Meksras’ court reasoned that allowing people to be buried with their valuables would encourage tomb raiding, which was “contrary to public policy” because it desecrated the dead.107 Missouri has also held that allowing a deceased person to destroy their property is against public policy.108 A Missouri court found that the negative externalities of such destruction outweighed a testator’s negative liberty because “[d]estruction of the house harms the neighbors, detrimentally affects the community, causes monetary loss in excess of $39,000.00 to the estate and is without benefit to the dead woman.”109 The court ruled in favor of the community’s ability to exercise its positive liberties, which included living in a stable community.110 The need to protect these positive liberties outweighed the testator’s ability to exercise her negative liberty.111 The court further justified its decision by noting that the testator had not articulated any justification for wanting to destroy her property.112

Dictionary (11th ed. 2019). 101 Strahilevitz, The Right to Destroy, supra note 54, at 793. 102 See id. at 783–84, 796. 103 Id. at 796. 104 Id. 105 See id. at 784. 106 In re Meksras’ Estate, 63 Pa. D. & C.2d 371, 372–73 (Ct. Com. Pl. 1974). 107 Id. at 373. 108 Eyerman v. Mercantile Tr. Co., 524 S.W.2d 210, 217 (Mo. Ct. App. 1975). 109 Id. at 214. 110 Id. at 217. 111 Id. 112 Id. Vol. 12, No. 2 Northeastern University Law Review 489

While the Meksras and Eyerman cases involved deceased property owners who did not have any recognizable interest in destroying their property, owners who do have legitimate interests in destroying their property also have been prohibited from doing so.113 For instance, a Washington, D.C. landlord once sought permission to demolish a building he owned because it had been damaged by a fire.114 He was barred from exercising this negative liberty because the building was covered under the Historic Preservation Act, and the board responsible for administering this act declined to permit its demolition in the absence of “imminent danger.”115 The court held that the mayor’s decision not to exercise this discretionary power was not subject to judicial oversight, upholding the administrative body’s decision.116 Thus, the court upheld the administrative decision to prevent the landlord from exercising his negative liberty. 117 In each of these cases, courts were wary of permitting entities from exercising their negative liberty to destroy their property precisely because such destruction would produce negative externalities for the community.118 In fact, Meksras demonstrates that even if an owner’s exercise of their negative liberty is not illegal, a court can still bar the action if the court deems that such an exercise creates negative externalities that violate public policy.119 Interestingly, the court cited no authority to support its prediction that allowing individuals to be buried with their valuables would lead to an uptick in this type of crime.120 The district court and the Sixth Circuit, on the other hand, knew that U.S. Steel’s decision to destroy its property would have negative externalities for the Mahoning Valley, but chose not to cre-

113 Strahilevitz, The Right to Destroy, supra note 54, at 784. 114 J.C. & Assocs. v. District of Columbia Bd. of Appeals and Review, 778 A.2d 296, 298 (D.C. 2001). 115 Id. at 307–09. 116 Id. at 309. 117 Id. at 308. 118 See J.C. & Assocs., 778 A.2d at 298 (restricting the negative liberty to destroy in the interest of historic preservation); Eyerman v. Mercantile Tr. Co., 525 S.W.2d 210, 215, 217 (Mo. Ct. App. 1975) (restricting the negative liberty to destroy because doing so would destabilize the community); In re Meksras’ Estate, 63 Pa. D. & C.2d 371, 372–73 (Ct. Com. Pl. 1974) (restricting the negative liberty to destroy because it would produce the negative externality of tomb raiding). 119 In re Meksras’, 63 Pa. D. & C.2d at 372–73. 120 See generally id. 490 Gilchrist ate an equitable solution.121 Although Judge Lambros and the Sixth Circuit might have been unable to predict the full scope of the harm that would ensue, both courts specifically stated that the community could potentially suffer substantial harm. The Sixth Circuit could have followed the Meksras court’s reasoning and fashioned an equitable solution to guard against the negative externalities.122 Courts may permit entities to exercise their negative liberty and destroy their property if the cost of preservation would be more than the cost of destruction, or if destroying their property is a form of self-expression. Neither of these exceptions eliminates the court’s responsibility to consider whether destroying property will create negative externalities.123 For instance, an Illinois court held that a private entity that owned a theater could not be forced to preserve the building because the building was not economically profitable and was vacant, “functionally obsolete,” posed a fire hazard, and could not have been made profitable even if improvements had been made.124 The court essentially reasoned that destroying the building would increase the value of the land overall, so such destruction was therefore actually an improvement to the parcel rather than a loss.125 But the facts of Marbro Corp. and the resultant reasoning are in stark contrast to the facts in Local 1330. Rather than destroying a theater, U.S. Steel destroyed the Mahoning Valley’s economic livelihood.126 Unlike the defunct and unprofitable theater, the Youngstown Works was about breaking even when U.S. Steel decided to close it, and a feasibility study conducted on another area steel mill, the Campbell Works, concluded that the mill could have actually earned a profit in as little as five years with an initial $500 million investment.127 While $500 million may sound like a steep investment, U.S. Steel had the funds.128 Given that the steel mills were not only occupied, but also employed a significant portion of the Mahoning Val- ley population, produced tax revenue in the form of both corporate

121 Local 1330 II, supra note 2, at 1279–80. The Sixth Circuit quoted from the speech that the district court judge, Judge Lambros, gave at one of the pretrial hearings. Id. 122 In re Meksras’, 63 Pa. D. & C. 2d at 372–73. 123 Strahilevitz, The Right to Destroy, supra note 54, at 830. 124 People ex rel Marbro Corp. v. Ramsey, 171 N.E.2d 246, 256 (Ill. App. Ct. 1960). 125 Strahilevitz, The Right to Destroy, supra note 54, at 816–17. 126 Compare People ex rel Marbro Corp., 171 N.E.2d at 256 with Local 1330 II, supra note 2, at 1279–80, 1283. 127 Lynd, The Fight Against Shutdowns, supra note 1, at 43, 172–73. 128 Id. at 209. Vol. 12, No. 2 Northeastern University Law Review 491 taxes and employee income taxes, were not fire hazards, and could be made profitable with available funds,129 destroying the property would not have been an improvement to the parcel under the logic of Marbro Corp. Thus, U.S. Steel should not have been permitted to exercise its negative liberty and destroy its properties.

C. Defendants Must Use Their Property U.S. Steel should not have been permitted to exercise its negative liberty of not using its property because the nonuse similarly prevented Mahoning Valley residents from exercising their positive liberties and contributed to negative externalities for the community.130 Oskar Liivak and Eduardo M. Peñalver argue that an owner should not be permitted to exercise their negative liberty through nonuse if doing so is not part of a “purposeful plan or where nonuse interferes with third parties’ own autonomy-based interests [positive liberties] in the use and enjoyment of their own property.”131 Al- though the law does not bar an owner from not using their property per se, it does limit an owner’s ability not to use their property if the “nonuse harms third parties and, in particular, where it harms the interest that those parties have in use and possession of their own property.”132 The law of tangible property is not typically concerned with an entity’s reason for not using its property, so it likely would not have scrutinized U.S. Steel’s reasons for refusing to sell its mills to its workers. But this law, like those discussed above, is concerned with negative externalities; thus, the law of tangible property may have prevented U.S. Steel’s nonuse of its mills on these grounds.133 The doctrines of abandonment, undue hardship as applied to innocent improvers, nuisance, estoppel, permissive waste, adverse possession, necessity, and eminent domain all restrict an owner’s ability not to use their property.134 The workers in Local 1330 claimed that they had either an easement or a shared property interest in the mills because of their long-established relationship with U.S. Steel. The court rejected this claim, finding that the plaintiffs failed to support their argument with either constitutional or statutory ar-

129 See supra Introduction and Section II. 130 See Liivak & Peñalver, supra note 17, at 1466–68. 131 Id. at 1466–67. 132 Id. at 1455. 133 See Lynd, The Fight Against Shutdowns, supra note 1, at 159; Liivak & Peñalver, supra note 17, at 1455. 134 Liivak & Peñalver, supra note 17, at 1455–56. 492 Gilchrist guments.135 While it is possible that none of the property doctrines that limit an entity’s ability to exercise its negative liberty through nonuse were directly applicable to Local 1330,136 the harms that these property doctrines are meant to prevent did occur in the Mahoning Valley.137 These doctrines are meant to prevent three types of negative externalities: (1) necessity and eminent domain restrict the harm that would otherwise result from allowing the owner’s nonuse at the expense of not allowing someone else to put the property to productive use; (2) nuisance and permissive waste prevent the owner’s nonuse from “interfer[ing] with other owners’ use and enjoyment of their own property (either contemporaneously or in the future)”; and (3) abandonment and adverse possession prevent harm by limiting wasted time and effort.138 All three of these types of negative externalities occurred when U.S. Steel decided to exercise its negative liberty by not using its steel mills, thus creating negative externalities for the Mahoning Valley. Although they had not attempted to claim the mill through necessity or eminent domain, Mahoning Valley residents experienced the first type of negative externality referenced above, as they were unable to put the mill to productive use. Economic decline, rising crime rates, mental and physical ailments, and abuse plagued the region in the wake of U.S. Steel’s departure.139 If U.S. Steel had been required to transfer ownership of the mill to the workers so they could continue to operate it themselves, the mill would have had the opportunity to continue to be productive.140 Thus, the type of harm that the doctrines of necessity and eminent domain are meant to

135 Local 1330 II, supra note 2, at 1280. 136 The court rejected this claim because: Neither in brief nor oral argument have plaintiffs pointed to any constitutional provision contained in either the Constitution of the United States or the Constitution of the State of Ohio, nor any law enacted by the United States Congress or the Legislature of Ohio, nor any case decided by the courts of either of these jurisdictions which would convey authority of this court to require the United States Steel Corporation to continue operations in Youngstown which its officers and Board of Directors had decided to discontinue on the basis of unprofitability. Id. However, scholars agree that the court wrongly decided this issue. See Klare, supra note 38, at 83; Singer, supra note 15, at 621. 137 See Liivak & Peñalver, supra note 17, at 1468. 138 Id. at 1465. 139 See supra Introduction and Section II. 140 See generally Lynd, The Fight Against Shutdowns, supra note 1. Vol. 12, No. 2 Northeastern University Law Review 493 prevent would have been curtailed. The Mahoning Valley residents also experienced the inability to use and enjoy their property, which is the second type of negative externality property doctrines that prevent owners from not using their property are meant to curtail.141 Mahoning Valley residents were not able to use and enjoy their own property for many reasons. First, the lost tax revenue in the form of both corporate taxes and income taxes led to diminished community resources.142 Second, the population drastically declined, which resulted in an onslaught of vacant property that caused remaining occupied property to lose value and further depleted the tax base due to the diminished property taxes.143 Third, rates of mental and physical illnesses increased, and it can logically be inferred that mentally and physically ill individuals do not enjoy their property to the same extent as healthy individuals.144 Fourth, an increase in crime prevented residents from being able to live peaceably in their community.145 The community also experienced waste, the third type of negative externality that the doctrines of abandonment and adverse possession are intended to prevent.146 Liivak and Peñalver discuss the waste involved in abandonment and adverse possession as a waste of time and effort that ensues during the re-appropriation of the abandoned and unwanted property.147 Another prominent property scholar, David A. Super, argues that abandonment in the form of foreclosures is also a form of permissive waste because “allowing a property that is still valuable, and that is still capable of producing a stream of payments . . . to fall into foreclosure with little prospect of remunerative resale” results in financial decay.148 Super’s reasoning is directly applicable to Local 1330 because the steel mills, as discussed, were still valuable and capable of generating a profit.149

141 See Liivak & Peñalver, supra note 17, at 1465. 142 See Linkon & Russo, supra note 8, at 196–97; Lynd, The Fight Against Shutdowns, supra note 1, at 4; see also Singer, supra note 15, at 718. 143 See supra notes 11–13 (noting the increased property vacancy and unemployment rates that necessarily lead to a decrease in taxes). 144 Singer, supra note 15, at 718; see also Linkon & Russo, supra note 8, at 194 (“[H]omocides, heart disease, and lung disease—all considered preventable by public health officials—killed blacks at a much higher rate than whites.”). 145 See supra note 16. 146 Liivak & Peñalver, supra note 17, at 1465. 147 Id. 148 Super, supra note 84, at 1854–55. 149 Local 1330 II, supra note 2, at 1266; Lynd, The Fight Against Shutdowns, supra note 1, at 172–73, 209. 494 Gilchrist

Abandoning the mills also created waste because the resultant population decline created vacant residential property that drove down the values of properties that remained occupied.150 The negative externalities actually produced by U.S. Steel’s nonuse of its property demonstrate that the nonuse was, in fact, harmful. Since common law property doctrines regulate harmful nonuse,151 the plaintiffs may have had a viable claim if they had alleged that U.S. Steel should have been prevented from not using its property.

V. Learning from Local 1330 If the plaintiffs in Local 1330 had access to the more recent scholarship pertaining to the right to abandon, destroy, or not use property and had included these relevant arguments in their complaint, they may have succeeded in preventing U.S. Steel from closing its Mahoning Valley mills, or requiring it to transfer ownership of the mills to the workers. Because the plaintiffs may have prevailed had they brought these claims, this section will examine how future plaintiffs may successfully prevent other corporations from shutting their plants down. This section will first examine which individuals would be proper plaintiffs. It will then examine case law and potential facts these plaintiffs could rely upon in crafting their complaints alleging that corporations should not be permitted to abandon, destroy, or not use their property.152 A. Potential Plaintiffs in Future Claims. Because entire communities are affected by plant closures of this nature and the resulting mass layoffs, there are several potential plaintiffs. The most obvious group of people who could sue are workers who would lose their jobs as a result of similar shutdowns. In Local 1330 the workers were union members, so the union

150 Kildee et al., supra note 13, at 10–11 (reporting that Youngstown’s population peaked in 1930 at 170,002, as of 2006, 22.8% of the housing stock was vacant, as of 2008, and in 2000, median value of a home was $40,900); Super, supra note 84, at 1854 (stating adjoining property values fall when homes are abandoned); Beniston, supra note 11 (stating that a 2009 survey revealed that Youngstown had 4,566 vacant buildings and 23,000 vacant lots); Quick Facts: Youngstown city, Ohio, supra note 13 (stating Youngstown’s population was 66,982 in 2010). 151 Liivak & Peñalver, supra note 17, at 1468, 1480. 152 This note does not discuss issues of standing as they relate to whether the plaintiffs can sue, or the circumstances under which the plaintiffs’ claims would be ripe for adjudication. Vol. 12, No. 2 Northeastern University Law Review 495 filed the complaint on behalf of the workers.153 Similarly situated union workers could raise a similar complaint, or workers who are not members of a union could file a complaint, potentially as a class action suit.154 Community members could also bring suit. In Eyerman, property owners who expected their own property values to fall as a result of the demolition of the nearby theater acted as parties to a similar lawsuit and the court ultimately found in their favor.155 In the instance of a plant closing, property owners who live near the plant could state a claim that they expect their property values to fall in the wake of any closing. Because plant closings can result in the laid- off employees moving to seek employment elsewhere,156 property owners who live in communities likely to suffer as a result of this migration could also be a part of a lawsuit against a closing plant. Lastly, government entities could be appropriate plaintiffs in future plant-closing actions. Future plaintiffs could follow Local 1330’s example and add elected officials as plaintiffs.157 The elected officials would be filing on behalf of their constituents to prevent the local economy from being harmed. Depending on the circumstances of the individual case, state and local administrative bodies could also be appropriate plaintiffs. For instance, sometimes abandoning a building will raise zoning concerns.158 Thus, the administrative agency that is responsible for enforcing the zoning regulations along with the city or state that the administrative agency operates under could be a part of the claim.159

B. Potential Claim: Defendants Do Not Have the Right to Abandon

153 Local 1330 II, supra note 2, at 1265. 154 See generally Drew R. Heard, The Prerequisites for Class Actions, in 19 E. Min. L. Found. § 5.02 (1998). 155 Eyerman v. Mercantile Tr. Co., 524 S.W.2d 210, 213, 218 (Mo. Ct. App. 1975). 156 See Nanette Senters, GM Is Closing My Plant. What are Politicians Going to Do About It?, Inequality.org (Mar. 1, 2019), https://inequality.org/research/ gm-is-closing-my-plant-what-are-politicians-going-to-do-about-it/ (“GM is forcing my fellow workers to choose between mandatory relocation to other plants, hundreds of miles away from their families, and the unemployment line.”). 157 See Local 1330 II, supra note 2, at 1266. 158 See J.C. & Assocs. v. D.C. Bd. of Appeals & Review, 778 A.2d 296, 298 (D.C. 2001); Francisco v. City of Columbus, 31 N.E.2d 236, 238 (Ohio Ct. App. 1937). 159 See J.C. & Assocs., 778 A.2d at 298; Francisco, 31 N.E.2d at 237. 496 Gilchrist

While it is well-established that entities cannot abandon real property, a holding that an entity cannot abandon a chattel would be an extension of the law.160 Even so, Eduardo M. Peñalver has argued persuasively that extension is natural:

Looking at the operation of the law of abandonment as a whole, rather than piece by piece, it is simply a misunderstanding to see it as permissive with respect to chattels while restraining the abandonment of land. It would be more accurate to say that, through its treatment of land, the common law reflects discomfort with abandonment through and through.161

Thus, the best way to argue against a corporation’s right to abandon its property may be to articulate how forbidding the right to abandon chattels is a natural extension of the law,162 and to list the negative externalities that would be produced if the corporation was permitted to abandon its property.163 When articulating the potential negative externalities, it likely would be most persuasive to quantify the losses expected to arise from a plant closure. The plaintiffs should clearly quantify the number of people who are expected to be laid off and explain that even people who do not work at the closing plant are likely to lose their jobs and face other economic harm.164 These lost wages could

160 Peñalver, supra note 49, at 215. 161 Id. But see Strahilevitz, The Right to Abandon, supra note 67, at 414 (“[I]t is unclear why the law should take the position advocated by Peñalver with respect to positive-value chattel property.”). 162 Peñalver, supra note 49, at 215. If the court is reluctant to accept Peñalver reasoning, this claim could still succeed by pointing out that abandoning the property will produce negative externalities, which even Strahilevitz, who is more cautious, agrees should be prevented. Strahilevitz, The Right to Destroy, supra note 54, at 797. 163 See Strahilevitz, The Right to Destroy, supra note 54, at 797. Future plaintiffs could also consider zoning codes as a means of bolstering their claims. Sometimes a zoning code will not permit a building’s use to change and will deem that a change of use constitutes abandonment. See Francisco, 31 N.E.2d at 243. 164 1,500 workers were laid off when General Motors closed its Lordstown plant. Emily Stewart, Trump’s General Motors Tweets, Explained, Vox (Mar. 18, 2019), https://www.vox.com/policy-and-politics/2019/3/18/18271028/trump- general-motors-david-green-mary-barra; see also Lynd, The Fight Against Shutdowns, supra note 1, at 3–5 (arguing that layoffs often spread to other businesses that provided the raw materials for the industrial operation that Vol. 12, No. 2 Northeastern University Law Review 497 be added to any complaint as damages.165 Future plaintiffs can also mention the toll that layoffs are known to have on the laid-off workers’ mental and physical health.166 Lastly, the loss of the tax base and subsequent loss of social services can also be mentioned.167

C. Potential Claim: Defendants Do Not Have the Right to Destroy It is well-established law that property owners do not have the right to destroy their property;168 therefore, this is likely the strongest claim that future plaintiffs could bring. Claims of this sort may be most compelling if they are able to quantify the amount of damage that is expected to result from the property’s destruction. For instance, in Eyerman, the plaintiffs asserted that the destruction of the testator’s property would lead to a loss of $39,000 to the direct value of the lot, destabilize the community, “increas[e] the likelihood the lot will be subject to uses detrimental to the health, safety and beauty of the neighborhood,” and would “depreciate adjoining property values by an estimated $10,000.00,” all of which the court relied upon in holding that the property destruction was not permissible.169 As explained above with respect to the previous claim,

originally closed); supra notes 6–7. In addition, “Cleveland State University’s Center for Economic Development estimates that the plant shutting down will have a negative impact of $8bn in the region.” Adam Gabbot, “It’s Devastating.” End of GM in Ohio Town as Trump Fails to Bring Back Midwest Jobs, Guardian (Aug. 23, 2019), https://www.theguardian.com/business/2019/ aug/23/general-motors-factory-ohio-lordstown. 165 Singer offers the following example what could be included in these calculations: The long-term loss of jobs and substantial reductions in income and wealth of discharged workers also affect the community at large. The loss of work is felt by the public sector in increased unemployment benefits, increased welfare benefits, and increased need for other sorts of public services. It is felt by society generally in the lost contribution of workers who are not working at all or working at jobs that require less than their full talents. Singer, supra note 15, at 713–14. 166 Harvey, supra note 9, at 680–81. 167 Peñalver, supra note 49, at 217 (listing decreased tax revenue as one of the negative externalities that the law against abandonment seeks to prevent). In Youngstown, the city’s income from the industrial taxes decreased, resulting in less funding for schools and public services—the public schools even fell into bankruptcy. Linkon & Russo, supra note 8, at 197; Lynd, The Fight Against Shutdowns, supra note 1, at 4. 168 See supra note 116. 169 Eyerman v. Mercantile Tr. Co., 524 S.W.2d 210, 213–14 (Mo. Ct. App. 1975). 498 Gilchrist plaintiffs can draw expected loss numbers from a variety of sources. Particular to this claim is the exact amount of taxes expected to be lost and the exact monetary figure of expected lost wages, both from employees of the plant and those who are expected to lose their jobs in unrelated businesses as collateral to the closure. It should be noted that while it has been consistently held that owners cannot destroy their property,170 a court may decline to extend this rule to corporations. Courts have previously ruled that a corporation’s decision to cease operations is a business decision with which a court should not interfere.171 Yet, courts are typically not concerned with a property owner’s reason for not using their property.172 Thus, if the right to destroy is framed as a form of nonuse, then the court may be required to apply a negative and positive liberty analysis, rather than merely excusing the corporation’s actions under the guise of a business decision.173 Moreover, a court’s refusal to hold a corporation to the same standard as a single individual as it pertains to the right to destroy would be nonsensical because a corporation would necessarily create more negative externalities through the destruction of its property than would a single individual. This is because its property is likely larger, its taxes are likely greater, and, most importantly, the destruction of corporate property usually corresponds with the individuals who worked at that property losing their jobs. If property law is about ensuring that the exercise of one’s negative liberties do not create negative externalities, corporations who wish to destroy their property should be held to the same standard as individuals who wish to destroy their property. Holding corporations to the same standard would require a court to create new precedent, but courts have previously expand-

170 See supra note 116. 171 See Textile Workers Union of Am. v. Darlington Mfg. Co., 380 U.S. 263, 270 (1965) (“A proposition that a single businessman cannot choose to go out of business if he wants to would represent such a startling innovation that it should not be entertained without the clearest manifestation of legislative intent or unequivocal judicial precedent so construing the Labor Relations Act. We find neither.”). Thus, “[a]s long as a company is making some profit it should not have the right to make the highest possible profit if to do so is destructive to workers and the community. Ordinarily this will mean that it is better to rebuild in one place, rather than scrapping and moving on.” Lynd, The Fight Against Shutdowns, supra note 1, at 208. 172 Liivak & Peñalver, supra note 17, at 1455. 173 Id. Vol. 12, No. 2 Northeastern University Law Review 499 ed the law to prevent certain property uses from creating negative externalities. In Meksras, the court had recognized that there was no established precedent stating that a deceased individual could not be buried with her property.174 However, the court also recognized that if the individual was permitted to use her property as she intended, the use could create negative externalities for the community by encouraging tomb raiding.175 In recognizing that this particular use of the property could create negative externalities, the court took the initiative to establish a new rule that forbade an individual from being buried with their valuables.176 Courts should take the same initiative to prevent negative externalities when adjudicating plant closing issues. Since a corporation’s decision to close its operations has the potential to devastate entire communities—a negative externality that is more severe than tomb raiding—courts should recognize and capitalize on their abilities to impose affirmative duties upon corporations to mitigate the negative externalities that their exercise of their negative liberties creates.

D. Potential Claim: Defendant’s Must Use Their Property Future plaintiffs likely will have the most difficulty succeeding on a claim alleging that the corporation does not have a right not to use its property because the right not to use is the most theoretical. Although Peñalver persuasively argues that this right is implied in all of property law, it has never, to this author’s knowledge, been recognized as a cause of action.177 Thus, the most persuasive way to argue this point may be to discuss the three types of harm that the implied right not to use are meant to prevent: (1) not allowing the claimant to put the property to productive use, (2) preventing the owner’s nonuse from “interfer[ing] with other owners’ use and enjoyment of their own property (either contemporaneously or in the future),” and (3) limiting waste.178 After identifying the types of harm that the nonuse is causing, plaintiffs could explicitly discuss which of these negative externalities would arise from a corpora-

174 In re Meksras’ Estate, 63 Pa. D. & C.2d 371, 372–73 (Ct. Com. Pl. 1974) (“There being no established judicial precedent, I think that the question should be decided in the light of consideration appropriate to the present day.”). 175 Id. 176 Id. 177 Liivak & Peñalver, supra note 17, at 1455–65. 178 Id. at 1465. 500 Gilchrist tion’s nonuse of its property.179 Plaintiffs could compellingly analo- gize the right not to use to the concepts of nuisance and permissive waste, as courts have previously held that nonuse is a form of nuisance and permissive waste.180 Here, plaintiffs could argue that a corporation’s failure to use its property is a nuisance and a form of permissive waste that should not be permitted because it interferes with others’ rights to use and enjoy their own property. Thus, the nonuse itself could be used as a cause of action in which the concepts of nuisance and permissive waste would be implied.

VI. Conclusion Claims alleging that corporations do not have the right to abandon, destroy, or not use their property could potentially prevent plant shutdowns from devastating communities in the future. While plaintiffs should continue to pursue the claim that the workers also have a property right in the enterprise by means of an easement, they may also find that the additional property claims discussed in this Note provide additional relief. But, as the court recognized in Local 1330 that finding that the plaintiffs had a property right in the mill by way of an easement would have constituted an extension of the law,181 the additional claims addressed this Note also would be an extension of the law. Such an abandonment claim requires extending the prohibition on abandoning real property to prohibiting the abandonment of chattels. And while the right to destroy is restricted in a host of circumstances, to this author’s knowledge it has never been used to restrict a corporation from making a “business decision.” The right not to use is perhaps the most challenging: while the right not to use is a principle that is imbedded throughout property law, it has never been expressly acknowledged. Yet, substantial precedent proves that the common law must evolve to meet new situations.182 If anything, Local 1330 and the resultant negative externalities that continue to affect the Mahoning Valley are proof that corporations should no longer be given deference to do as they please under the guise of a “business decision.” Rather, they should be required to ameliorate the negative externalities that their decisions create for their former employees and the communities in

179 See supra Sections V.B and V.C for a discussion of the harms that might occur and how to quantify them. 180 Liivak & Peñalver, supra note 17, at 1459–62. 181 Singer, supra note 15, at 746. 182 See, e.g., id. Vol. 12, No. 2 Northeastern University Law Review 501 which they used to operate.183

183 See id. at 651–52 (arguing that the inequalities and wealth and power “are the result of the legal allocation of entitlements,” and that it is up to the courts to determine whether they want to uphold regulations that uphold this current imbalance or if they want to ensure an allocation of this wealth and power). 502 Finegan

An Ounce of Prevention: Educating Jurors to Avoid Investigating the Verdict

By Sharon Finegan*

* Professor of Law, South Texas College of Law Houston. I am grateful to Maxine Goodman, Amanda Harmon Cooley, and Jason Dahlem for their support and guidance. Vol. 12, No. 2 Northeastern University Law Review 503

Table of Contents I. History of the No-Impeachment Rule �� 507 II. The Peña-Rodriguez Decision �� 515 III. The Aftermath of Peña-Rodriguez �� 520 A. Cases Applying the Peña-Rodriguez Exception �� 520 B. Problems Posed by the Peña-Rodriguez Holding ��528 IV. Suggestions for Preserving a Defendant’s Right to a Fair Trial in the Wake of Peña-Rodriguez ��536 V. Conclusion �� 546 504 Finegan

“‘I think he did it because he’s Mexican and Mexican men take whatever they want.’”1

This language, attributed to a juror during deliberations in a sexual assault case involving a Hispanic defendant, helped to form the basis of a landmark Supreme Court decision that created a historic exception to a rule of evidence that dates back to the 18th century. 2 In Peña-Rodriguez v. Colorado, the Supreme Court examined what has been labeled the “no-impeachment rule” in light of evidence of overt juror racism influencing the verdict.3 The no-impeachment rule, a common law principle derived from English law and codified in rule 606(b) of the Federal Rules of Evidence, is used in some form in every jurisdiction in the United States.4 The rule prohibits jurors from providing admissible evidence of their deliberations after a verdict has been rendered or an indictment issued.5 With only very narrow exceptions, the rule essentially prevents jurors from testifying or providing affidavits after a trial is over indicating that the deliberations were flawed in some way.6 Very good reasons have kept this rule in place for centuries, including the need to ensure finality of jury verdicts, to maintain the confidentiality of jury deliberations, and to prevent the harassment of jurors post-verdict by losing parties.7 Yet despite the importance and longevity of the no-impeachment rule, it presents serious constitutional concerns.8 The fairness of a trial–in both reality and

1 Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 862 (2017). 2 Id. at 863. 3 Id. at 866–69. 4 Id. at 863–65. 5 Id. at 864. 6 Charles Alan Wright et al., 27 Federal Practice and Procedure §§ 6074–6076 (2d ed. Apr. 2019 Update). 7 See Jessica L. West, 12 Racist Men: Post-Verdict Evidence of Juror Bias, 27 Harv. J. Racial & Ethnic Just. 165, 176–77 (2011). In recommending the adoption of the rule, the Senate Judiciary Committee stated: Public policy requires a finality to litigation. And common fairness requires that absolute privacy be preserved for jurors to engage in the full and free debate necessary to the attainment of just verdicts. Jurors will not be able to function effectively if their deliberations are to be scrutinized in post-trial litigation. In the interest of protecting the jury system and the citizens who make it work, rule 606 should not permit any inquiry into the internal deliberations of the jurors. S. Rep. No. 93-1277 (1974). 8 See Wright, supra note 6, § 6074. Vol. 12, No. 2 Northeastern University Law Review 505 perception–depends on the jury deciding the case based upon the evidence before it. However, as demonstrated by the quote above, not all jurors make their decisions based upon the evidence presented in the case.9 What happens when a juror decides to convict a defendant because of his race? Or because the juror believes that all people of a certain ethnicity are prone to criminal conduct and must be guilty? Such a basis for a decision undermines the constitutional right to an impartial jury and consequently a fair trial.10 Thus, when confronted with these facts, the Supreme Court decided to carve out a very narrow exception: when a juror’s verdict is the result of an explicit racial bias against the defendant, the Sixth Amendment right to a fair trial is implicated and the trial judge must have the discretion to hear testimony from jurors to determine the constitutionality of the verdict.11 The Peña-Rodriguez decision was groundbreaking in recognizing this constitutionally-required exception to the no-impeachment rule. However, the narrowness of the decision, coupled with difficulty in application, has led to it making very little real impact.12 The Peña-Rodriguez exception to the no-impeachment rule only applies to explicit animus toward a defendant, and only racial-animus.13 Thus, a juror who expresses a bias against another juror’s race, or against the sexual orientation of the defendant, will not fall within the exception nor will any implicit bias be considered if it is not explicitly evidenced through a juror’s statement.14 Further, the Peña-Rodriguez exception is limited by local rules that can bar attorneys from contacting jurors after a verdict is rendered. Attor- neys who violate those rules to ascertain whether the jury expressed racial animus during deliberations may find themselves barred from arguing the exception, regardless of the evidence they find.15 Finally,

9 Andrew J. Hull, Unearthing Mansfield’s Rule: Analyzing the Appropriateness of Federal Rule of Evidence 606(b) in Light of the Common Law Tradition, 400 S. Ill. U. L.J. 403, 404 (2014) (noting that cases involving juror misconduct impacting the verdict “have existed throughout our common law history, and they continue to occur today”). 10 Peña-Rodriguez, 137 S. Ct. at 868. 11 Id. at 869. 12 See infra Part III(a). 13 Peña-Rodriguez, 137 S. Ct. at 869. 14 See id. 15 See id.; United States v. Robinson, 872 F.3d 760, 770 (6th Cir. 2017) (holding that attorneys violating local rules regarding contacting jurors post-verdict were barred from arguing the application of Peña-Rodriguez). 506 Finegan the Supreme Court explicitly held that the exception only applies when the losing party can show that a juror’s statements evidence an overt racial prejudice that actually motivated their vote to convict the defendant, a difficult burden to meet.16 The narrowness of the Peña-Rodriguez decision was intentional. The core policies behind the no-impeachment rule are crucial to maintaining a functioning jury system.17 Yet there are significant constitutional concerns implicating a defendant’s Sixth Amendment rights that are not addressed by the narrow exception to the no-impeachment rule created by this historic case. This Article recognizes the incredible challenge that the conflict between the competing policies behind the no-impeachment rule and the right to an impartial jury trial create, and argues that a different approach can better serve the interests of a defendant’s right to a fair trial without implicating the no-impeachment rule. While the no-impeachment rule applies to all juror testimony post-verdict, the rule has no application to jurors providing such testimony prior to a verdict being rendered.18 Thus, jurors can present evidence of any improper bases used during deliberations at any time up to the point of verdict entry.19 This Article argues that jurors can be encouraged to not only come forward with such evidence during deliberations, but also to examine their own implicit biases to minimize their impact on a verdict. A trial judge, through carefully worded jury instructions, can emphasize the importance of recognizing such biases in themselves and others, and can create a mechanism whereby jurors can feel more comfortable reporting evidence of improper influences in the jury room prior to the rendering a verdict. While these practices will not solve the problem of jurors using improper bases to render a verdict, it will help to minimize the impact of bias in deliberations and yet preserve the important policy considerations behind the no-impeachment rule. Part I of this Article examines the history and policies be-

16 Peña-Rodriguez, 137 S. Ct. at 869. Some courts have also held the rule is not retroactively applicable, further narrowing its application. See Tharpe v. Warden, 898 F.3d 1342, 1346 (11th Cir. 2018). 17 Tanner v. United States, 483 U.S. 107, 119-20 (1987). 18 Wright, supra note 6, § 6074 (noting that because 606(b) does not apply before a verdict or indictment is reached, it “is inapplicable during pretrial voir dire and during the trial”). 19 Tanner, 483 U.S. at 127 (noting that “jurors are observable by each other, and may report inappropriate juror behavior to the court before they render a verdict”). Vol. 12, No. 2 Northeastern University Law Review 507 hind the no-impeachment rule. Part II of this Article examines the Peña-Rodriguez case and the narrowness of its holding. Part III of this Article reviews the limited way in which lower courts have applied the Peña-Rodriguez exception since the decision was issued and identifies problems associated with the narrowness of the Court’s holding. Part IV of this Article discusses the use of implicit bias instructions in the courtroom and how the use of such instructions could be expanded upon to better address the improper reliance on bias in rendering verdicts.

I. History of the No-Impeachment Rule The origins of the no-impeachment rule are typically attributed to the British case, Vaise v. Delaval, decided in 1785.20 Prior to that case, jurors in England were regularly permitted to testify to improper jury conduct during deliberations after a verdict was rendered in order to impeach the verdict.21 In Vaise, Lord Mansfield broke with this common-law tradition, and prohibited jurors from testifying post-verdict to allegations that the case was decided by a coin-flip.22 Mansfield did not prohibit the use of other evidence of jury misconduct to impeach the verdict, but found that jurors were not reliable witnesses against themselves, and thus held that post-verdict testimony or affidavits submitted by jurors could not be used to latter challenge the outcome of the case.23 This rule preventing juror testimony to impeach a verdict became simply known as “Mansfield’s Rule.”24 Various versions of Mansfield’s Rule were subsequently embraced by American courts.25 While some courts imposed the complete ban on post-verdict juror testimony encompassed in the

20 Hull, supra note 9, at 406, 411. 21 Id. 22 Colin Miller, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or other Bias Violates the Right to Present a Defense, 61 Baylor L. Rev. 872, 880–81 (Fall 2009) 23 West, supra note 7, at 171. Caroline Covington, Note, Peña-Rodriguez v. Colorado: Elevating a Constitutional Exception Above the Tanner Framework, 77 Md. L. Rev. 547, 552 (2018). However, scholars have noted that the reasoning behind the rule is flawed, as it was based upon “a legal doctrine, quite popular at the time of the case and championed by Lord Mansfield, that a witness should not be able to testify to his own depravity or lack of character.” This doctrine has been almost universally rejected in every other arena, barring the limited exception of juror testimony post-verdict. Hull, supra note 9, at 410. 24 West, supra note 7, at 171. 25 Hull, supra note 9, at 415. 508 Finegan

British rule, others adopted modified versions of the rule, allowing for juror testimony on some topics but not others.26 One such modified version, commonly referred to as the Iowa Rule, stems from the 1866 case of Wright v. Illinois & Mississippi Telegraph Co., in which the Supreme Court of Iowa held that after a verdict is rendered, a juror is prohibited from testifying to or submitting an affidavit involving matters that “essentially inhere in the verdict itself.”27 Thus, the Iowa Rule prohibited jurors from testifying about their own subjective thoughts and intents when deliberating.28 However, the Iowa Rule differed from Mansfield’s Rule in that it allowed for jurors to testify about other matters that did not relate to the internal workings of a juror’s mind during deliberations.29 Under this rule, jurors could impeach a verdict with testimony that the case was decided by lot or by a game of chance.30 The Wright court reasoned that such evidence was far more reliable than evidence of the subjective thought process of individual jurors, and that using such evidence to impeach a verdict would not undermine the stability of the jury system.31 The United States Supreme Court examined the no-impeachment rule in McDonald v. Pless, rejecting the Iowa Rule and other more lenient variations of Mansfield’s Rule and opting for the more rigid bar of prohibiting all post-verdict juror testimony regarding deliberations, regardless of the matter on which they were to testify.32 The Court noted the important policy considerations behind the rule, expressing the particular concern that in an adversarial system of justice, without such a bar on juror testimony, “[j]urors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict.”33 The one limited exception to the rule the Supreme Court recognized was the same exception expressed in Mansfield’s Rule–a juror could testify post-verdict to matters regard-

26 Pittsburgh Nat. Bank v. Mutual Life Ins., 425 A.2d 383, 384–85 (Pa. 1981). 27 20 Iowa 195, 210 (1866). 28 Peña-Rodriguez, 137 S. Ct. at 863. 29 Id. (noting that under the Iowa rule, jurors could “testify about objective facts and events occurring during deliberations, in part because other jurors could corroborate that testimony”). 30 Wright, 20 Iowa at 211. 31 Id. 32 238 U.S. 264 (1915). 33 Id. at 267. Vol. 12, No. 2 Northeastern University Law Review 509 ing external influences on the jury during trial or deliberations.34 The Supreme Court and lower courts have narrowly interpreted this exception to the no-impeachment rule, and have held that testimony regarding any internal abnormalities or misconduct that occurs during deliberations does not fall within the narrow parameters of the exception.35 In creating the Federal Rules of Evidence, Congress recognized the importance of the no-impeachment rule, but struggled with which version of the rule to adopt.36 The Advisory Committee originally recommended adoption of a rule similar to that embodied by the Iowa Rule, however the Justice Department and an influential Senator from Arkansas, Senator McClellan, strongly criticized the recommendation, noting the important policy considerations behind the no-impeachment rule–including the need for the finality of verdict, the privacy of deliberations, and the concern over potential harassment of jurors.37 The Advisory Committee’s ultimate recommendation was much more in-line with Mansfield’s strict bar of

34 Id. at 268. In the decades following McDonald, the Supreme Court addressed such cases of external influence, allowing jurors to testify about reading outside materials discussing a case during deliberations or a bailiff’s comments on the defendant to a juror regarding matters not in evidence. Tanner v. United States, 483 U.S. 107, 117 (1987). 35 Wright, supra note 6, § 6075. The courts have cited the exception for extraneous prejudicial information to permit jurors to testify as to the jury’s consideration of extra-record information derived from books, newspapers and other public media, the internet, court documents, other objects not in evidence, experiments or investigations, views of the relevant scene or premises, the bailiff, the judge, the parties or witnesses, other persons not on the jury, or the jurors themselves. The courts have held that the exception for extraneous prejudicial information is inapplicable and have disqualified jurors from testifying as to the effect of security measures taken at trial that were reflected in the record, events that took place in open court even if not reflected in the record, intra-jury influences such as intimidation or harassment of one juror by another, the use by a juror of notes taken by that juror during the trial, and other matters not classifiable as either information or evidence outside the record. Even if the jury has been exposed to extraneous prejudicial information, some courts have held that Rule 606(b) prohibits jurors from testifying as to the effects such information had on the jury’s decision.” Id. (internal citation omitted). 36 Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 864 (2017). 37 West, supra note 7, at 174-76. 510 Finegan post-verdict juror testimony.38 Unsurprisingly, the Supreme Court endorsed this revised rule, which reflected the common-law principle the Court had applied for decades.39 Despite the Supreme Court’s endorsement of the revised rule, the Judiciary Committees of each chamber of Congress backed different versions of the rule.40 The House of Representatives Com- mittee rejected the revised rule and recommended the adoption of the more lenient rule initially proposed by the Advisory Com- mittee.41 In so recommending, the House Committee expressed concerns over improper jury conduct that could lead to unjust verdicts.42 The Senate Judiciary Committee supported the revised rule, and recommended the adoption of the more rigid bar of post-verdict juror testimony.43 In supporting the more restrictive rule, the Senate Committee emphasized the need for “finality to litigation” and the importance of the confidentiality of juror deliberations.44 After considering the two proposed rules and the policies behind them, a conference committee adopted the revised rule, which was codified in Rule 606(b) of the Federal Rules of Evidence.45 The language of 606(b) has been slightly modified over the years, but the substance has remained essentially the same, providing that:

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations;

38 Id. 39 Peña-Rodriguez, 137 S. Ct. at 864. 40 Id. 41 Id. 42 Lee Goldman, Post-Verdict Challenges to Racial Comments Made During Juror Deliberations, 61 Syracuse L. Rev. 1, 6 (2010) (“Believing that ‘jurors are the persons who know what really happened,’ and should be allowed to testify as to objective jury misconduct, the House Report recommended adoption of the Advisory Committee’s original draft.”). 43 Peña-Rodriguez, 137 S. Ct. at 864. 44 S. Rep. No. 93–1277 at 13–14, as reprinted in 1974 U.S.C.C.A.N. 7051, 7060 (“Public policy requires a finality to litigation. And common fairness requires that absolute privacy be preserved for jurors to engage in the full and free debate necessary to the attainment of just verdicts. Jurors will not be able to function effectively if their deliberations are to be scrutinized in post- trial litigation. In the interest of protecting the jury system and the citizens who make it work, rule 606 should not permit any inquiry into the internal deliberations of the jurors.”). 45 Peña-Rodriguez, 137 S. Ct. at 864. Vol. 12, No. 2 Northeastern University Law Review 511

the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the ver dict on the verdict form.46

After its codification in the Federal Rules of Evidence, rules similar or identical to Rule 606(b) were universally adopted in state rules of evidence.47 In the years since its adoption, the Supreme Court has addressed the application of the no-impeachment rule several times. In Tanner v. United States, the Court was confronted with a case in which jurors were alleged to have engaged in egregious misconduct during trial and deliberations.48 Tanner involved defendants who were convicted by a jury in a federal district court of conspiracy and mail fraud.49 After the verdict was rendered two jurors reached out to defense counsel, alleging that jurors were “on one big party” during trial and deliberations, and stating that several jurors consumed copious amounts of alcohol during trial.50 Other allegations of misconduct included jurors smoking and selling marijuana during the trial, one juror ingesting cocaine during the trial, and multiple jurors falling asleep during testimony.51 The district court refused to hold an evidentiary hearing on these allegations, citing the prohibition of juror testimony under 606(b), and the Eleventh Circuit af-

46 Fed. R. Evid. 606(b). The one substantive change to the rule that has occurred since its adoption was the addition of the third exception, allowing for jurors to testify as to a clerical error on the verdict form. Wright, supra note 6, § 6075.1 (noting that in 2006 Congress added this exception to the existing rule in order for it to conform with existing case law). 47 Peña-Rodriguez, 137 S. Ct. at 865. 48 483 U.S. 107, 108 (1987). 49 Id. at 109. 50 Id. at 113-15. 51 Id. at 115-16. 512 Finegan firmed.52 The defendants argued both that the misconduct alleged in the case fell within the “extraneous influence” exception to 606(b) and that even if the exception did not apply, the Sixth Amendment required a hearing nonetheless.53 Examining first the applicability of 606(b)’s exception for extraneous influences on the jury, the Court noted the narrowness of the exception, citing the limited circumstances in which courts had found an external influence on a jury’s deliberations and explaining that such influence not only had to be external to the jury, but actually impact the outcome of the verdict.54 The Court held that juror inebriation was not such an external matter, but rather an internal one and therefore did not fall within the exception.55 The Court also addressed the defendant’s argument that the Sixth Amendment right to a competent jury compelled an evidentiary hearing on the allegations of juror misconduct in the case.56 The Court emphasized the importance of the no-impeachment rule, and went on to describe mechanisms in place that protect a defendant’s right to a competent jury.57 The Court first noted that the voir dire process helped to ensure that individual jurors were fit to serve, and allowed unsuitable jurors to be identified and excluded from- ser vice.58 Second, the Court noted that any juror misconduct could be identified and testified toprior to the rendering of a verdict.59 Third, the Court further emphasized the narrow nature of 606(b)’s bar on

52 Id. at 113, 115-16. 53 Id. at 116-17. 54 Examples of cases given by the court where an external influence was found included: where a bailiff made comments about the defendant to a juror, where a bribe was offered to juror, and where a newspaper article relating to the case was read by a juror. Id. at 117-18. 55 The court likened the inebriated state of the jurors to jurors who are tired and inattentive during trial, and noted that such matters had been consistently held to be internal, rather than external under the rule. As the Court stated, “[h]owever severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an ‘outside influence’ than a virus, poorly prepared food, or a lack of sleep,” all of which are considered unreviewable internal matters under 606(b). Id. at 120. 56 Id. at 126-27. 57 Id. at 127. 58 Id. 59 Id. Indeed, the Court referred to its prior decision in McIlwain v. United States, 464 U.S. 972 (1983), where jurors sent a note to the judge during deliberations indicating that the jury foreperson was “incapacitated.” Such a notification on the part of the jurors would not implicate 606(b) because it was presented prior to the rendering of the verdict. Vol. 12, No. 2 Northeastern University Law Review 513 juror testimony by noting that it only bars testimony of jurors themselves, and evidence of misconduct could be provided by numerous other sources aside from the jurors’ own testimony.60 Thus, the Court held these three mechanisms provided adequate protection to a defendant’s right to a competent jury under the Sixth Amend- ment.61 In its decision, the Court observed, “[t]here is little doubt that post verdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsi- ble or improper jury behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it.”62 In addressing the delicate balance between the policies behind the no-impeachment rule and Sixth Amendment rights, the Court determined that the very functioning of the jury system required the no-impeachment rule to prevail.63 In so holding, the Court again emphasized that a functioning jury system requires finality of verdict, privacy of deliberations, and disincentives to harass jurors post-verdict.64 State and federal courts applying 606(b) since Tanner have repeatedly relied upon the protections described by the Court as preserving parties’ Sixth Amendment rights despite concerns over juror misconduct or bias influencing deliberations.65 Yet, over time, some state courts recognized that these protections do not always adequately protect a defendant’s right to a fair trial when jurors engage in misconduct during trial and deliberations.66 Thus, several states

60 The Court noted that in United States v. Taliaferro, 558 F.2d 724, 725–26 (4th Cir. 1977), the Fourth Circuit was able to consider “records of club where jurors dined, and testimony of marshal who accompanied jurors, to determine whether jurors were intoxicated during deliberations.” Tanner, 483 U.S. at 127. 61 Id. 62 Id. at 120. 63 Id. at 120-21 (noting that “[a]llegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process”). 64 Id. at 119. 65 See, e.g. Warger v. Shauers, 574 U.S. 40 (2014); United States v. Leung, 796 F.3d 1032, 1036 (9th Cir. 2015); United States v. Johnson, 187 F.3d 632 (4th Cir. 1999); Golden Eagle Archery v. Jackson, 24 S.W.3d 362, 370-71 (Tex. 2000). 66 See, e.g., Rhode Island v. Brown, 62 A.3d 1099 (R.I. 2013); Connecticut v. Santiago, 715 A.2d 1, 14–22 (1998); Kittle v. United States, 65 A.3d 1144, 1154–56 (D.C. 2013); Fisher v. State, 690 A.2d 917, 919–21, and n.4 (Del. 1996) (appendix to opinion); Powell v. Allstate Ins. Co., 652 So. 2d 354, 357– 58 (Fla. 1995); Spencer v. State, 398 S.E.2d 179, 184–85 (Ga. 1990); State 514 Finegan began carving out exceptions to their no-impeachment rule for specific instances of juror misconduct.67 One of the more concerning allegations of juror misconduct involves jurors who base their verdict on racial bias. In these cases involving minority defendants, jurors alleged that others on the jury made explicit statements indicating their verdict was based on racial animus against or stereotypes of the accused. Courts struggled with how to address such allegations, recognizing the conflict between the no-impeachment rule and both the Sixth and Fourteenth Amendments, specifically in light of the corrosive and widespread impact racism has on the American judicial system.68 The split in jurisdictions on how to address allegations of racial bias on the part of individual jurors ultimately led the Supreme Court to address the issue in Peña-Rodriguez.

v. Jackson, 912 P.2d 71, 80–81 (Haw. 1996); Commonwealth v. Laguer, 571 N.E.2d 371, 376 (Mass. 1991); State v. Callender, 297 N.W.2d 744, 746 (Minn. 1980); Fleshner v. Pepose Vision Institute, P.C., 304 S.W.3d 81, 87–90 (Mo. 2010); State v. Levitt, 176 A.2d 465, 467–68 (N.J. 1961); People v. Rukaj, 506 N.Y.S.2d 677, 679–80 (N.Y. App. Div. 1986); State v. Hidanovic, 747 N.W.2d 463, 472–474 (N.D. 2008); State v. Brown, 62 A.3d 1099, 1110 (R.I. 2013); State v. Hunter, 463 S.E.2d 314, 316 (S.C. 1995); After Hour Welding, Inc. v. Laneil Mgmt. Co., 324 N.W.2d 686, 690 (Wis. 1982). 67 Ariz. Rules Crim. Proc. 24.1(c)(3), (d) (exception for evidence of misconduct, including verdict by game of chance or intoxication); Idaho Rule Evid. 606(b) (game of chance); Ind. Rule Evid. 606(b)(2)(A) (drug or alcohol use); Minn. Rule Evid. 606(b) (threats of violence or violent acts); Mont. Rule Evid. 606(b) (game of chance); N.D. Rule Evid. 606(b)(2) (C) (same); Tenn. Rule Evid. 606(b) (quotient verdict or game of chance); Tex. Rule Evid. 606(b)(2)(B) (rebutting claim juror was unqualified); Vt. Rule Evid. 606(b) (juror communication with nonjuror); See also 27 Charles A. Wright et al., Federal Practice and Procedure: Evidence § 6071, at 447–48, 677 n. 66 (2d ed. 2007); Id. at 451, and n. 70; Id. at 452, and n. 72. 68 See United States v. Villar, 586 F.3d 76, 87 (1st Cir. 2009) (holding that the Sixth Amendment gave the trial judge discretion to hold evidentiary hearing to investigate allegations of juror’s ethnic bias); United States v. Benally, 546 F.3d 1230, 1239 (10th Cir. 2008) (holding that the defendant’s Sixth Amendment rights were not violated by application of the no-impeachment rule to allegations that jurors expressed racial bias toward the defendant during deliberations); Shillcutt v. Gagnon, 827 F.2d 1155, 1159 (7th Cir. 1987) (holding that juror post-verdict testimony was barred by 606(b), but noting that “[t]he rule of juror incompetency cannot be applied in such an unfair manner as to deny due process. Thus, further review may be necessary in the occasional case in order to discover the extremely rare abuse that could exist even after the court has applied the rule and determined the evidence incompetent.”). Vol. 12, No. 2 Northeastern University Law Review 515

II. The Peña-Rodriguez Decision Peña-Rodriguez involved a Hispanic defendant accused of harassment and unlawful sexual contact for the alleged sexual assault of two teenage girls in a public bathroom.69 After a three-day trial, the jury found the defendant guilty.70 Immediately after the discharge of the jury, two jurors spoke privately with the defendant’s attorney, expressing concern that during deliberations a third juror had articulated a bias against the Hispanic heritage of the defendant and his alibi witness.71 Defense counsel reported the allegations to the trial court, and the court allowed the attorney to obtain affidavits from the two jurors describing the conduct and statements of the third juror during deliberations.72 The affidavits provided multiple examples of explicit bias against Hispanics on the part of the third juror, identified as Juror H.C. The affidavits described H.C. telling other jurors of his belief that “the defendant was guilty because, in [H.C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.”73 Further, the jurors stated that H.C. expressed an opinion that “Mex- ican men are physically controlling of women because of their sense of entitlement.”74 The jurors also described H.C. as having stated, “‘I think he did it because he’s Mexican and Mexican men take whatever they want.’”75 The affidavits further provided that H.C., citing to his own experience, believed that “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.”76 In addition to the biases H.C. expressed toward the defendant, he also called into question the credibility of the defendant’s alibi witness based upon his bias against Hispanics.77 The jurors described H.C. as saying “that he did not find petitioner’s alibi witness credible because, among other things, the witness was ‘an illegal.’”78 This statement was contrary to the evidence produced at

69 Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 861 (2017). 70 Id. 71 Id. 72 Id. 73 Id. at 862. 74 Id. 75 Id. 76 Id. 77 Id. at 861. 78 Id. at 862. 516 Finegan trial that the alibi witness was a legal resident of the United States.79 The trial court reviewed the juror affidavits and recognized H.C.’s bias, but denied the defendant’s motion for a new trial based upon Rule 606(b) of the Colorado Rules of Evidence, a rule virtually identical to the federal no-impeachment rule.80 In closely divided decisions, the state appellate court and state supreme court both affirmed the ruling of the trial court.81 In so holding, the Colorado Supreme Court specifically relied on United States Supreme Court precedent that provided no exception to the no-impeachment rule for juror bias.82 Justice Kennedy, in announcing the opinion of the Supreme Court, noted the imperfect nature of the jury system, but emphasized that the function of the jury is to operate as “a necessary check on governmental power.”83 In order for the system to work, the Court explained that the finality of verdicts must be protected and jurors must be assured that they will not later be questioned about their decision.84 The Court described the long history of the no-impeachment rule in England and the United States, ultimately noting that Rule 606(b) of the Federal Rules of Evidence expressed a broadly applicable rule, with limited exceptions.85 The Court acknowl-

79 Id. 80 The Colorado rule provides: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors’ attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying. Colo. R. Evid. 606(b). 81 Peña-Rodriguez, 137 S. Ct. at 862. 82 Peña-Rodriguez v. People, 350 P.3d 287, 291–92 (Colo. 2015), rev’d, 137 S. Ct. 855 (2017) (noting that “[c]ombined, Tanner and Warger stand for a simple but crucial principle: Protecting the secrecy of jury deliberations is of paramount importance in our justice system”). 83 Peña-Rodriguez, 137 S. Ct. at 860. (“The jury is a tangible implementation of the principle that the law comes from the people.”) 84 Id. at 861. 85 Id. at 863–65. Vol. 12, No. 2 Northeastern University Law Review 517 edged the merits of this broad interpretation of the no-impeachment rule, explaining that “[i]t promotes full and vigorous discussion by providing jurors with considerable assurance that after being discharged they will not be summoned to recount their deliberations, and they will not otherwise be harassed or annoyed by litigants seeking to challenge the verdict. The rule gives stability and finality to verdicts.”86 After acknowledging the importance and long history of the current broad interpretation of the no-impeachment rule, the Court recognized that a handful of state courts had recognized exceptions to the rule above and beyond what the federal rule allowed for.87 The Court allowed that while every jurisdiction in the United States employed some version of the no-impeachment rule, and that the vast majority of jurisdictions followed a rule substantially similar to the federal rule, at the time of the decision at least 16 jurisdictions had adopted an exception to the bar on post-verdict juror testimony when racial bias played a role in deliberations.88 Further, the Court noted that several federal courts of appeals had examined the issue and held or suggested that such an exception should exist.89 In addressing the criticism of the no-impeachment rule, the Court recognized the conflict between the important policy reasons behind the no-impeachment rule and the right to an impartial jury.90 While acknowledging that its prior precedent had rejected broad- ening the exceptions to the bar on juror testimony, the Court also pointed out that its previous case law had left the door open to allow for evidence of “juror bias so extreme that, almost by definition, the jury trial right has been abridged.”91 Addressing what type of bias might fall within this category, the Court focused on the fundamental threat that racism poses to the American judicial system, and in particular the guarantee of a fair and impartial jury under the Sixth Amendment viewed through the lens of the Fourteenth Amendment.92 The majority discussed the history of all-white juries punishing African-American defen-

86 Id. at 865. 87 Id. 88 Id. 89 Id. 90 Id. at 868–69 (The Court described the case as lying “at the intersection of the Court’s decisions endorsing the no-impeachment rule and its decisions seeking to eliminate racial bias in the jury system.”). 91 Id. at 866 (quoting Warger, 135 S. Ct. at 529, n. 3). 92 Id. at 868-69. 518 Finegan dants much more severely than their white counterparts and failing to punish white defendants for crimes against minorities.93 The racism rampant in the American judicial system after the Civil War threatened to undermine the entire system of justice.94 Thus, the legislature and the Supreme Court acted to prohibit the exclusion of jurors on the basis of their race.95 Further, the Court has held that in certain situations, the Constitution requires that defendants have the ability to ask questions of prospective jurors about racial bias during voir dire in order to ensure an impartial jury and equal protection under the laws.96 Thus, the United States has a history of attempting to address racial prejudice within the jury system through legal mechanisms. As the Court in Peña-Rodriguez noted, “[t]he unmistakable principle underlying these precedents is that discrimination on the basis of race, ‘odious in all aspects, is especially pernicious in the administration of justice.’”97 Given the history of racism in the United States, the Court recognized that among the different forms of juror misconduct or bias in deliberations, racial bias may be the most prevalent and pernicious.98 As the Court explained, because of the unique “historical, constitutional, and institutional concerns” raised by racial bias in our jury system “[a]n effort to address the most grave and serious statements of racial bias . . . [is necessary] to ensure that our legal system[] remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.”99 Further, the Court recognized that the protections described in Tanner would not necessarily be effective in rooting out the influence of racism in deliberations.100 Racial bias on the part of a prospective juror is notoriously difficult to ascertain in voir dire, and the Court noted that jurors may be disinclined to call out the racism of their fellow jurors during deliberation.101 Thus, because of the unique and pervasive effects of racial bias on the jury system, the Court recognized a need for a change in the application of the no-impeachment rule when racial bias is alleged to have influenced

93 Id. at 867. 94 Id. 95 Id. 96 Id. at 868. 97 Id. (quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979)). 98 Id. 99 Id. 100 Id. at 868–69. 101 Id. at 869. Vol. 12, No. 2 Northeastern University Law Review 519 a jury verdict.102 Balancing the interests of a jury’s ability to deliberate freely without fear of future harassment and the need for finality of verdicts against the interests of jury verdicts free from the influence of racial animus or stereotypes, the Court decided to carve out a narrow exception to the no-impeachment rule. The majority in Peña-Rodriguez held that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.”103 The Court emphasized that it is not enough for a defendant to demonstrate a juror made an “offhand comment” indicating racial bias, the burden is on the defendant to show that the juror (1) made an explicit statement; (2) exhibiting overt racial bias; and (3) that bias “was a significant motivating factor in the juror’s vote to convict” thereby casting serious doubt on the fairness of the proceedings.104 The Court further limited the application of this exception by leaving the process and standards by which a trial court would confront such allegations to the discretion of the judge, only to be overturned by an abuse of that discretion.105 Finally, the Court addressed the concern of post-verdict juror harassment by noting that the ability of an attorney to discuss a case with jurors after the verdict would continue to be limited by state rules of professional ethics and local court rules.106 Justices Thomas, Alito, and Chief Justice Roberts dissented from the opinion, arguing that the Tanner safeguards present in every jury trial provided adequate protection of a defendant’s rights to a fair and impartial jury.107 In particular, the dissent noted that jurors can, and do, report on biased statements of other jurors prior to a verdict being rendered, a circumstance that does not conflict with the no-impeachment rule.108 The dissent further stressed the

102 Id. at 869. 103 Id. (emphasis added). 104 Id. 105 Id. 106 Id. 107 Id. at 878. 108 The dissent noted that “[t]here is no question that jurors do report biased comments made by fellow jurors prior to the beginning of deliberations” and cited to a handful of cases in which this has occurred. Id. at 882 (citing United States v. McClinton, 135 F.3d 1178, 1184–85 (7th Cir. 1998)); United States 520 Finegan importance of the confidentiality of jury deliberations and compared the rules barring post-verdict juror testimony with other rules of evidence that prevent relevant evidence from being admissible at trial.109 The dissent concluded that “[u]ltimately, even though the no-impeachment rule ‘may often exclude the only possible evidence of misconduct,’ relaxing the rule ‘would open the door to the most pernicious arts and tampering with jurors.’”110 The decision in Peña-Rodriguez was groundbreaking in that it carved out a significant exception to a rule to the longstanding federal no-impeachment rule, but the cases that have addressed the decision have demonstrated its limited application given the narrowness of the holding. Thus, the exception, designed to ensure constitutional compliance in the face of an evidentiary rule, has had very little real-world impact.

III. The Aftermath of Peña-Rodriguez

A. Cases Applying the Peña-Rodriguez Exception In the two years since the Peña-Rodriguez decision, many defendants have cited the case in arguing their convictions were the result of racial bias on the part of the jury necessitating an evidentiary hearing and ultimately a new trial.111 This is exactly the consequence that the dissent in Peña-Rodriguez feared–a groundswell of defendants protesting jury verdicts and a resultant surge in new trials for criminal defendants.112 Yet, despite a number of cases clearly

v. Heller, 785 F.2d 1524, 1525–29 (11th Cir. 1986); Tavares v. Holbrook, 779 F.2d 1, 1–3 (1st Cir. 1985) (Breyer, J.). 109 Id. at 875 (noting that a defendant cannot compel an attorney, spouse, or member of the clergy to testify about a witness’ confidential admissions that he lied on the stand, even when “the constitutional rights of the defendant hang in the balance”). 110 Id. at 876 (quoting McDonald v. Pless, 238 U.S. 264, 268 (1915)). 111 David A. Barrett, et al., Opening the Door to Jury Room Secrets After Peña- Rodriguez, Litigation, Summer 2019, at 31, 36. (“Although there has been a surge in cases grappling with asserted bias in jury deliberations–in part because the rule applies to every state and federal jury verdict–many cases unsuccessfully sought to expand the decision beyond the strict holding.”). 112 Id. See also Peña-Rodriguez, 137 S. Ct. at 884. The dissent expressed concern that the Court’s holding would “prompt losing parties and their friends, supporters, and attorneys to contact and seek to question jurors, and this pestering may erode citizens’ willingness to serve on juries. Many jurisdictions now have rules that prohibit or restrict post-verdict contact with jurors, but whether those rules will survive [the Court’s] decision is an open question – Vol. 12, No. 2 Northeastern University Law Review 521 demonstrating juror bias or misconduct during deliberations, the vast majority of courts that have addressed these cases have held the Peña-Rodriguez exception inapplicable to the facts presented. Courts have interpreted the narrowness of the Peña-Rodriguez exception literally, and have rejected its application for numerous reasons, among them, that the exception: is not retroactively applicable; is limited by local rules and state rules of professional conduct; only applies when bias is a motivating influence in the verdict and is directed at the defendant; only applies to an express statement of bias; and finally, does not extend beyond racial bias. Because of allof these limitations, courts have rarely found an instance in which the Peña-Rodriguez exception is, in fact, applicable and requires an evidentiary hearing let alone a new trial. The first obstacle defendants have encountered in arguing the applicability of the Peña-Rodriguez exception is the refusal of courts to apply the exception retroactively. Thus, defendants arguing that the exception applies to evidence of racial bias motivating jurors in verdicts rendered prior to March 6, 2017 have had little luck in having their arguments succeed. Some courts have simply held that the defendant failed to prove the retroactive application of the exception, without expressly holding the rule does not apply retroactively.113 Another court has explicitly held that the exception has no retroactive application, reasoning that the exception expresses a procedural rule but not the type of watershed rule that would require ex post facto application.114 Thus, only defendants whose allegations of juror bias are based on verdicts rendered in the last two years have had a chance at succeeding in an argument that the exception applies. Even those cases with timely allegations of jury bias have been limited by the application of state rules of professionalism and local court rules governing the conduct of attorneys. In cases where defense counsel, upon learning of allegations of juror bias or suspect- ing as much, reached out to former jurors in violation of local rules, courts have held that such attorney misconduct bars the attorneys

as is the effect of this decision on privilege rules[.]” 113 See In re Robinson, 917 F.3d 856 (5th Cir. 2019) (holding that the defendant did not meet the burden of the Peña-Rodriguez exception and that there was no evidence that it applied retroactively); Commonwealth v. Smart, No. 1469 MDA 2017, 2018 WL 1280835 (Penn. Super. Ct. Mar. 13, 2018) (holding that the defendant could not prove the exception applies retroactively). 114 See generally McKnight v. Bobby, No. 2:09-CV-059, 2018 WL 2327668 (S.D. Ohio May 22, 2018). 522 Finegan from raising the Peña-Rodriguez exception.115 Courts have noted that the attorneys in Peña-Rodriguez did not violate any professional rules of conduct and sought the permission of the court to obtain the affidavits of jurors.116 In contrast, in a case in which the attorneys were barred by local rules from contacting jurors and were admonished by the court not to do the same, the Sixth Circuit affirmed the trial judge’s denial of a motion for an evidentiary hearing despite the fact that the attorneys learned of express statements of racial bias made by the jury foreperson.117 Similarly, the Fourth Circuit found the trial court did not abuse its discretion in refusing to hold an evidentiary hearing after being presented with evidence that a juror approached the defendant’s attorney after the verdict was rendered and indicated a white juror made express statements about race to the two African-American members of the jury during deliberations.118 In its holding, the circuit court noted that local rules prohibited attorneys from interviewing jurors without leave of court.119 Thus, courts applying the Peña-Rodriguez exception have interpreted the Supreme Court’s dicta in the case narrowly, noting that local and state rules of professionalism designed to prevent juror harassment could prevent the application of the exception, regardless of whether there is evidence of racial bias influencing the verdict. Another significant hurdle that defendants arguing the Peña-Rodriguez exception must overcome is to demonstrate that the alleged juror bias influenced the verdict in the case. As the Supreme Court stated in its opinion, it is not enough that a juror makes an “offhand comment” that reflects racial bias or stereotyping.120 The defendant has the burden of showing that the statement actually influenced the verdict in the case.121 Such a burden is difficult to meet, and courts have demonstrated a reluctance to give defendants the benefit of the doubt.122 Where a jury foreperson made statements to

115 United States v. Robinson, 872 F.3d 760 (6th Cir. 2017). 116 Id. at 770. 117 Id. 118 United States v. Birchette, 908 F.3d 50, 58 (4th Cir. 2018). 119 Id. 120 Peña-Rodriguez, 137 S. Ct. at 869. 121 Id. 122 See People v. Hernandez-Delgado, No. H043755, 2018 WL 6503340, at *17– 18 (Cal. Ct. App. Dec. 11, 2018) (holding that the El Salvadorian defendant was unable to show prejudice from a comment made by a juror that “so many murderers come from El Salvador” because the juror who made the statement was immediately reprimanded by other jurors and was followed by a lengthy Vol. 12, No. 2 Northeastern University Law Review 523

African-American female jurors suggesting that they were holding out on convicting African-American defendants because they were protecting them based on their race, the Sixth Circuit held that the defendant failed to meet his burden in establishing the statements motivated the verdict.123 The circuit court explained that the juror in question “never suggested that she voted to convict [the defendants] because they were African-American. While she did impugn [the African-American jurors’] integrity based on their shared race with the defendants, she never said anything stereotyping about the defendants based on their race.”124 These comments demonstrate a major challenge to establishing racial bias as an influence on the verdict: where a juror’s comments relate to the race of another juror, courts are reluctant to find that the statements influenced the verdict.125 Unless the juror expresses a racial bias specifically against the defendant himself, a court may find that the defendant failed to demonstrate that the bias motivated the verdict.126 In a case involving an African-American defendant out of the Western District of Pennsylvania, a juror submitted an affidavit alleging that three other jurors called him a racial epithet during deliberations.127 The court held the Peña-Rodriguez exception did not apply because the statements were not directed at the defendant, and therefore the defendant did not meet his burden in demonstrating that the jurors making the statement were motivated to convict based on racial animus.128 This extremely narrow interpretation of the Supreme Court’s holding in Peña-Rodriguez has made it exceptionally difficult for defendants to demonstrate the applicability of the exception. Further, by limiting the exception in this way, courts fail to address the reality that even if a juror does not express a direct bias against the race of the defendant, such statements of racial bias and stereo-

discussion focused on the evidence). 123 See, e.g., Robinson, 872 F.3d at 770–71. 124 Id. at 171. 125 See, e.g., id. 126 See Richardson v. Kornegay, No. 5:16-HC-2115-FL, 2017 WL 1133289, at *10 (E.D.N.C. Mar. 24, 2017) (holding that while juror statements made during deliberations did relate to race, they did not “warrant an evidentiary hearing because they [did] not pertain to any racial bias against the petitioner” but rather related to the race of another juror who was the same race as the defendant). 127 Williams v. Price, No. 2:98CV1320, 2017 WL 6729978, at *9 (W.D.P.A. Dec. 29, 2017). 128 Id. 524 Finegan typing may demonstrate implicit biases that could very well affect the verdict in the case. Further limiting the application of the Peña-Rodriguez exception is the fact that the exception has been limited to express statements made by jurors, and therefore inapplicable to conduct that may demonstrate a racial bias influencing the verdict. As the Sixth Circuit has explained, “Peña-Rodriguez makes clear that it does not apply to a mere ‘offhand comment indicating racial bias or hostility,’ but only to a ‘clear statement’” that demonstrates racial bias motivating the decision to convict.129 Thus, courts have limited the Peña-Rodriguez exception to express/overt statements exhibiting an overt racial bias, not to statements or conduct that could imply such a bias.130 Further, even if the defendant can meet all of the above criteria and satisfy the limitations placed on the Peña-Rodriguez exception, if the bias alleged is not based on race, courts have refused to apply the exception. Courts have reasoned that the Supreme Court carved out this narrow exception to address the pervasive and pernicious impact of racism in our judicial system, and have therefore found it inapplicable to other forms of juror bias.131 Thus, where a defendant provided evidence that the jury was biased against him as a police officer, the Southern District of Florida rejected his claim that Peña-Rodriguez applied, noting that “[t]o find otherwise would open the jury system to constant scrutiny.”132 Likewise, where defendants have alleged that jurors unconstitutionally considered certain facts in rendering their verdict, courts have refused to allow for testimony to that effect under the Peña-Rodriguez exception. Specifically, where defendants presented evidence that jurors expressed a bias against the defendant for his

129 Robinson, 872 F.3d at 770. 130 United States v. Baker, 899 F.3d. 123, 131, 133 (2d Cir. 2018) (holding that a statement by a juror that “he knew the defendant was guilty the first time he saw him” could indicate a racial stereotype because of the race of the defendant, but that such an inference is not enough to establish the “clear statement. . . exhibiting racial bias” necessary for the exception to apply). 131 See Zamora-Smith v. Davies, No. CV 14-6032-GW (AGR), 2017 WL 3671859 (C.D. Cal. Aug. 23, 2017) (finding evidence that the jury foreperson pressured and rushed other jurors to decide the case, leading one juror to express he hoped the case would be reversed, did not fall within the Peña-Rodriguez exception). 132 United States v. Antico, No. 9:17-CR-80102, 2018 WL 659415, at *3 (S.D. Fla. Feb. 1, 2018). Vol. 12, No. 2 Northeastern University Law Review 525 decision not to testify, courts rejected the claim that such evidence is admissible at an evidentiary hearing to impeach the verdict.133 Sim- ilarly, the Fifth Circuit refused to extend the Peña-Rodriguez exception to an allegation that the jurors improperly believed they had to agree upon evidence before they could consider it in mitigation. In so holding, the Circuit Court noted the limited nature of Peña-Rodri- guez, explaining:

Prohibition of racial discrimination lies at the core of the Fourteenth Amendment. And in the erratic but relentless march toward a color-blind justice, its role in criminal proceedings has been salient. We decline the invitation to extend further the reach of Pena-Ro- driguez, one antithetical to the privacy of jury deliberations—a principle whose loss would be attended by such high costs as to explain its veneration.134

Thus, even in cases where numerous allegations of juror misconduct were alleged135 or where the consequences of the verdict resulted in a capital sentence,136 the courts have rejected the argument that

133 Deleon v. Director, No. 4:15CV726, 2018 WL 6332844 (E.D. Tex. Oct. 24, 2018); People v. Burke, 452 P.3d 124 (Col. Ct. App. 2018). 134 Young v. Davis, 860 F.3d 318, 333–34 (5th Cir. 2017). 135 United States v. Ewing, 749 F. App’x 317, 321 (6th Cir. 2018). In this case, the allegations of juror misconduct included: (1) the presence of the victim’s family members in the courtroom influenced the foreperson’s decision; (2) another juror stated that he had been married to an addict for 12 years but failed to disclose this fact during voir dire; (3) a juror repeatedly stated that the lack of defense witnesses and the inadequate defense lawyering meant that the defendant must be guilty; (4) a juror stated that the Government’s burden of proof was a preponderance of the evidence, and other jurors agreed; and (5) a juror stated that the fact that the Government prosecuted the case in federal court meant that the defendant was guilty.” Id. The court noted that all of the allegations fell within the 606(b) bar on juror testimony. 136 Austin v. Davis, 876 F.3d 757 (5th Cir. 2017). After sentencing the defendant to death, a juror stated that he felt that any person convicted of capital murder should be executed, contradicting statements he made during voir dire. He further stated that as soon as he heard the defendant committed capital murder, he decided he should be executed regardless of the evidence presented at sentencing. The court held that the allegations were not subject to the Peña-Rodriguez exception because they did not demonstrate an explicit racial bias against the defendant. 526 Finegan the Peña-Rodriguez exception should apply when no allegations of explicit statements of racial bias against the defendant have been alleged. Consequently, the narrowness of the Peña-Rodriguez exception excludes post-verdict juror testimony regarding allegations of juror bias influencing the outcome on the basis of gender, sexual orientation, or religion. Under this limited interpretation, anything that fails to explicitly allege juror bias based on race will not allow for juror testimony to impeach the verdict, even if the bias alleged clearly evidences a constitutional violation. Yet despite the narrow interpretation of the Peña-Rodriguez exception, there have been rare instances where courts have found it applicable. In those cases, when courts have applied the exception and allowed jurors to testify or submit affidavits providing evidence of racial bias influencing the verdict in a case, the courts have found the verdict unconstitutional and ordered a new trial. One such rare instance is reflected in United States v. Smith, a case in which an African-American defendant was charged with being a felon in possession of a firearm and illegally possessing a short-barreled shotgun.137 The jury convicted him on both counts. Five years later, the jury foreperson, “D.B.,” contacted the judge and asserted that another juror, “W.B.,” stated during deliberations that the defendant was “just a banger from the hood, so he’s got to be guilty.”138 A third juror, “A.J.” submitted an affidavit alleging that “a middle-aged white male juror” made comments about the race of the defendant during deliberations.139 The trial court found that the Peña-Rodriguez exception required an evidentiary hearing under these circumstances, and allowed both D.B. and A.J. to testify.140 In his testimony, D.B. indicated that he believed his vote to convict the defendant was influenced by W.B.’s comments about the credibility of the defendant based upon his race.141 The court in Smith found that the defendant had demonstrated explicit statements made by a juror during deliberations evidencing racial bias against the defendant, and that those statements

137 United States v. Smith, No. CR 12-183 (SRN), 2018 WL 1924454 (D. Minn. Apr. 24, 2018). 138 Id. at *4. 139 Id. at *5. 140 Id. at *1. 141 Id. at *12. Vol. 12, No. 2 Northeastern University Law Review 527 impacted the decision to convict.142 Thus, the court held that the defendant’s constitutional rights were violated and ordered a new trial.143 This decision was made despite the fact that the deliberations took place well before the Supreme Court’s decision in Peña-Rodri- guez, and the statements did not demonstrate the type of explicit bias directed at the defendant that other courts have required. Fur- ther, the court applied the Peña-Rodriguez exception despite the fact that the juror who allegedly made the racist statements was not the same juror who claimed that racial bias influenced his decision to convict–a circumstance under which other courts have expressly rejected the application of the exception.144 In analyzing the facts presented at the hearing, the court addressed the language used by juror W.B., noting that while it did not explicitly invoke race it reflected a “racially biased stereotype” indicating that the defendant “a black man from a majority-black neighborhood of Minneapolis – was a gang member, should be dis- believed, and was guilty.”145 The court determined that because the evidence showed the verdict was influenced by racial prejudice, the defendant’s Sixth Amendment right to a fair trial was violated.146 Further, the court found that this was a structural defect, not “simply an error in the trial process itself,” and that the error was not harmless beyond a reasonable doubt.147 Finally, the court rejected the government’s argument that the Supreme Court intended the Peña-Rodriguez exception to only apply when the juror making the racially-charged statement is the same juror whose vote is alleged to have been influenced by racial prejudice.148 The district court observed that the Supreme Court urged trial courts to use their discretion and consider “all the circumstances” in coming to a determination regarding whether racial bias influenced the verdict.149 The district court further reasoned that in Peña-Rodriguez itself, the Supreme Court remarked on the fact that “not only did the commenting juror use a dangerous racial stereotype to find the defendant guilty, he encouraged other jurors to do the same,” indicating their concern over the influence of such

142 Id. at *10. 143 Id. at *15. 144 Id. at *10. 145 Id. 146 Id. at *15. 147 Id. at *14. 148 Id. at *10. 149 Id. 528 Finegan statements on the jury as a whole.150 In coming to its decision, the trial court noted that the Su- preme Court had not provided procedures by which a trial judge should determine whether racial bias had influenced the verdict in the case.151 Thus, the court looked to the procedures used in cases involving the other narrow exceptions to the no-impeachment rule, and utilized that process in examining the applicability of the Peña-Rodriguez exception.152 The court held that if a defendant presented evidence that demonstrated a “reasonable possibility of a prejudiced verdict” based upon racial bias, he is entitled to an evidentiary hearing.153 The court went on to conclude that W.B.’s statement directly tied a racial stereotype to a conclusion of guilt, so therefore was a “significant motivating factor in the juror’s vote to convict.”154 The exhaustive analysis of the facts and law conducted by the district court in Smith in order to come to the conclusion that the Constitution required a new trial is necessitated by the narrowness of the Peña-Rodriguez exception and the extremely limited circumstances in which a defendant can succeed under the doctrine. In order for a court to determine that the exception applies, it must not only examine whether all of the rigid criteria have been met, but also come up with procedures and standards on how to apply the exception in the case. Thus, it is unsurprising that few courts have found the exception applicable given the narrowness of the holding and the difficulty in application.

B. Problems Posed by the Peña-Rodriguez Holding The narrowness of the interpretation and limited applicability of this no-impeachment exception, evidenced by cases post-Peña-Ro- driguez, present numerous challenges to ensuring that defendants’ right to an impartial and fair jury trial are not violated. A significant obstacle to a defendant presenting evidence of unconstitutional bias influencing a jury verdict are rules limiting attorneys’ ability to reach out to jurors after a verdict has been rendered.155 As the courts have held, violation of such rules can lead to

150 Id. at *11. 151 Id. at *9. 152 Id. 153 Id. 154 Id. at *10. 155 Kathryn E. Miller, The Attorneys are Bound and the Witnesses are Gagged: State Limits Vol. 12, No. 2 Northeastern University Law Review 529 rejection of the application of the Peña-Rodriguez exception, and yet, often the only way for attorneys to gather any evidence to make a case that racial bias influenced the verdict is by contacting the jurors in the case.156 Because local and state rules often bar attorneys from contacting jurors after the case to preserve the very real interest of preventing juror harassment, the instances in which the Peña-Rodri- guez exception applies will almost certainly be relegated to the rare cases in which jurors independently decide after the case to contact the court or counsel.157 This might prevent juror harassment, but it certainly is not the most effective way to root out racial bias in the deliberation process. As the Supreme Court itself pointed out in the Peña-Rodriguez case, jurors are reluctant to call other jurors racist or influenced by racial stereotypes.158 Without some encouragement or instruction on the part of the court or attorneys, most jurors are unlikely to sua sponte reach out to the court after a verdict to report concerning statements made during deliberations. A second hurdle that the Peña-Rodriguez exception presents to defendants seeking to ensure their right to a fair and impartial jury trial is that the exception only applies to racial animus or stereotypes, and not to other forms of bias that might render a verdict unconstitutional. As courts have accurately noted, racial animus has had a long, ugly, profound impact on our judicial system, and in particular on the jury function.159 Because of this unique and outsized impact on a defendant’s ability to receive a fair trial, the Supreme Court focused its decision in Peña-Rodriguez on racial bias alone.160 Courts applying the exception have followed suit, and rejected all assertions that the exception to the no-impeachment rule should be extended to other forms of bias or stereotyping that impact the verdict.161 While this application certainly preserves the finality of ver-

on Post-Conviction Investigation in Criminal Cases, 106 Calif. L. Rev. 135, 168 (2018) (“While it is true that restrictions on post-conviction interviews with jurors will preserve the finality of verdicts by reducing misconduct claims, a danger remains that states will imprison or execute capital defendants after trials that violate the U.S. Constitution.”). 156 Id. at 170 (“Restrictions that condition permission to interview on a showing of good cause result in an unfair catch-22: post-conviction counsel may not investigate whether juror misconduct occurred unless they already know juror misconduct occurred.”). 157 See, e.g., Robinson, 872 F.3d at 770; Birchette, 908 F.3d at 58. 158 Peña-Rodriguez, 137 S. Ct. at 869. 159 Id. at 867. 160 Id. at 869. 161 See supra, Part III(a). 530 Finegan dicts, it does not adequately protect the right to a fair and impartial jury trial where prejudice not based on race results in a conviction. Imagine a case where the defendant, a gay man, is accused of child molestation. During deliberations, several jurors expressly state that they think that gay men are more prone to pedophilia, and therefore believe the defendant is guilty. The jury convicts the defendant, and after the verdict several jurors contact defense counsel indicating that they believe the defendant was convicted based upon his sexual orientation. The defense attorney brings this information to the judge seeking an evidentiary hearing. Under the limited holding of Peña-Rodriguez, the judge should deny the hearing because the alleged prejudice was not racial and therefore the jurors cannot provide evidence of the statements made during deliberations. Likewise, if jurors stated during deliberations that they believed all Muslims were prone to violence because of their faith, and therefore believed the Muslim defendant guilty of assault, other jurors would not be able to testify to those statements after the verdict because they demonstrate religious, not racial, prejudice. Clearly both of these scenarios represent an improper result, and courts would agree that these are not constitutional bases for a jury verdict. Yet in these situations, the no-impeachment rule would trump the defendant’s right to a fair and impartial jury trial and the trial judge would not be empowered to hold an evidentiary hearing allowing for post-verdict juror testimony. A third challenge that the limited holding of Peña-Rodriguez presents is the difficulty in proving racial animus as a motivating factor in a juror’s decision. In reality, this criteria provides three hurdles for a defendant to overcome. First, the defendant must somehow provide evidence that the racial statements made by a juror actually influenced the outcome in the case.162 This burden is exceedingly difficult to meet, given that a juror may be affected by any number of influences in coming to a decision–including the evidence in the case, the reasoning of other jurors, the desire to have the case be over, a dislike of the defense counsel, or some sort of bias–racial or otherwise–against the defendant.163 Among all of

162 Peña-Rodriguez, 137 S. Ct. at 869 (holding that “[t]o qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.”). 163 Katherine Allen, The Jury: Modern Day Investigation and Consultation, 34 Rev. Litig. 529, 530 (2015) (“The reality is that twelve people hear the evidence in a courtroom, and return to the jury room to deliberate with different opinions Vol. 12, No. 2 Northeastern University Law Review 531 the factors playing into a juror’s decision to convict, it is hard to conceive of many situations in which a defendant could, through the evidence, establish that a motivating factor behind that decision was, in fact, racial animus and not simply another basis unless there was an explicit admission on the part of the juror that their vote was racially motivated.164 Second, most courts have limited the application of the Peña-Rodriguez exception to cases in which the juror who made the racist statement is also the juror whose decision to convict was based on the racial prejudice demonstrated in the statement. Thus, in cases where one juror made a racist statement that influenced another juror to convict the defendant, courts have held the exception inapplicable.165 Unless the defendant can establish that the statement reflects the speaker’s decision to convict based on racially-motivated reasons, the statement will be considered the type of “off-hand comment” that fails to fall within the exception. Third, in order to show that the racially biased statement demonstrates a significant motivating influence on the outcome of the case, most courts have held that the defendant must establish that the racially biased statement specifically targeted the defendant.166 Thus, if the juror made blatantly racist statements about other jurors, who were of the same race as the defendant, courts have held that those statements do not fall within the exception, despite the fact that they clearly demonstrate racial stereotyping or prejudice.167 This last limitation on the application of the Peña-Rodriguez exception demonstrates perhaps its greatest limitation–its failure to address implicit bias. A juror’s explicit statements demonstrating

on the correct verdict. People process information differently. All jurors have different sets of experiences, beliefs, and emotions that impact decisions in the jury box. Essentially, while the justice system requires impartial juries, impartial jurors do not exist. There is a gap between the evidence and the verdict that jurors color in with their individual experiences and prejudices.”). 164 Even when evidence of overt racial animus exists, courts will look to other factors that might have mitigated the impact of such animus during deliberations. In People v. Hernandez-Delgado, a juror’s statement that because the defendant was from El Salvador, she felt “he was more guilty” because “so many murderers come from El Salvador” was held not to have prejudiced the jury because of the brevity of the statement and the length of deliberations following the statement. Hernandez-Delgado, 2018 WL 6503340, at *16–18. 165 See, e.g., Williams, 2017 WL 6729978. 166 See id. 167 Id. 532 Finegan racial stereotyping against another juror may not be targeting the defendant, but certainly may demonstrate a bias against a defendant who is of the same race as the juror. Yet, the Peña-Rodriguez decision does nothing to address this situation. The Supreme Court made very clear that it was limiting its holding to those cases evidencing explicit statements of racial bias against the defendant.168 Thus, regardless of the facts or circumstances demonstrating racial prejudice or bias during deliberations that influenced the verdict, unless the defendant can point to a specific explicit statement that evidences the racist beliefs, he will not succeed in obtaining an evidentiary hearing under Peña-Rodriguez, let alone a new trial. Implicit biases are held by every individual, and are “driven by attitudes and stereotypes that we have about social categories, such as genders and races.”169 These types of unconscious attitudes are an inherent part of the human condition.170 Social science research suggests that we have developed these biases over time in order to make quick decisions without having to weigh all of the details individually that comprise that decision.171 Previously formed attitudes or stereotypes allow us to make such instinctive decisions in a quick, almost automatic way.172 An implicit bias is not nec-

168 Peña-Rodriguez, 137 S. Ct. at 869. 169 Jerry Kang, et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1128– 29 (2012). 170 Sean D. O’Brien & Kathleen Wayland, Implicit Bias and Capital Decision-Making: Using Narrative to Counter Prejudicial Psychiatric Labels, 43 Hofstra L. Rev. 751, 760–61 (2015). 171 Implicit biases are a form of bias pertaining to the mental processes of perception, memory, judgment and reasoning, also known as cognitive bias. Cognitive biases arise because our human decision-making processes are not just factual or objective, but are influenced by a variety of factors including: • information-processing short cuts – technically referred to as heuristics that could include instances where we might use our intuition, or common sense based on what we think we know (see also, Social categorisation theory on p18) • motivational and emotional factors, for example from our own personal experiences • social influences, such as the media and stereotypes. Equality Challenge Unit, Unconscious Bias and Higher Education (2013), available at https://www.ecu.ac.uk/wp-content/ uploads/2014/07/unconscious-bias-and-higher-education.docx (citing Norbert Schwarz, Emotion, Cognition, and Decision Making, 14 Cognition & Emotion 433 (2000)). 172 Keith B. Maddox & Samuel R. Sommers, Implicit Bias in Daily Perceptions Vol. 12, No. 2 Northeastern University Law Review 533 essarily a negative one. An individual could have an implicit bias that people of a social category have positive characteristics.173 But implicit biases can also have extremely negative connotations.174 In- dividuals employ these implicit biases, positive and negative, uncon- sciously throughout their daily life, and social scientists have been studying the effects of such biases on decision making for decades.175 In recent years, the judiciary, legal scholars, and attorneys have all expressed growing concerns over the influence of implicit bias in the courtroom.176 These range from concerns over the implicit bias of attorneys in representation to the implicit bias of judges in sentencing. But perhaps nowhere is this implicit bias more influential and concerning than behind the closed doors of the jury room. At least one study has shown that there is a generally strong implicit bias associating guilt with African-American defendants and innocence with white defendants.177 As one scholar noted “[w]ith

and Legal Judgments, 50 U. Michigan J.L. Reform 723 (2017). In the late 1970s, . . . as part of the ‘cognitive revolution,’ psychologists began to explore the notion that discrimination and other forms of biased intergroup judgment may result from ordinary, routine and completely normal cognitive mental processes. The results of this research suggest that a basic way in which people try to understand their world—categorization— can, of its own accord, lead to stereotyping and discrimination. These scientists determined that “[l]ife is just too short to have differentiated concepts about everything.” Antony Page, Batson’s Blind–Spot: Unconscious Stereotyping and The Peremptory Challenge, 85 B.U. L. Rev. 155, 181, 185 (2005) (quoting Gordon W. Allport, The Nature of Prejudice 20, 173 (1954)). 173 Gregory Mitchell, An Implicit Bias Primer, 25 Va. J. Soc. Pol’y & L. 27, 30 (2018). But note that even these “positive” stereotypes can have a damaging impact. “At times, biased thinking can be mistakenly construed as complimentary to a particular group, even though the so-called ‘positive’ stereotype itself brings with it harm.” Melissa L. Breger, Making the Invisible Visible: Exploring Implicit Bias, Judicial Diversity, and the Bench Trial, 53 U. Rich. L. Rev. 1039, 1045 (2019). 174 Id. 175 Anthony Kakoyannis, Assessing the Viability of Implicit Bias Evidence in Discrimination Cases: An Analysis of the Most Significant Federal Cases, 69 Fla. L. Rev. 1181 (2017). 176 Breger, supra note 173, at 1051–56 (describing various studies and efforts made to address implicit bias in the judicial system); Jennifer K. Elekk & Paula Hannaford-Agor, Can Explicit Instructions Reduce Expressions of Implicit Bias? New Questions Following a Test of A Specialized Jury Instruction 1 (2014). 177 Justin D. Levinson, Huajian Cai & Danielle Young, Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 Ohio St. J. Crim. L. 187 (2010). 534 Finegan otherwise identical scenarios, the darker the skin of the alleged perpetrator, the more likely jurors in mock situations are to find the alleged perpetrator guilty.”178 Further, implicit bias of a juror against a particular defendant because of his race may expressly contradict explicit statements made by that same juror about his attitudes or stereotypes.179 Thus, implicit bias is difficult to identify and challenge, because the individual who holds the attitudes or stereotypes is unlikely aware of their existence or their impact on the individual’s decision-making.180 Based upon the social science research demonstrating the deleterious impact of implicit bias on our system of justice, many actors in the legal system have attempted to address these concerns. The ABA has encouraged trainings of all courthouse staff and judges on the topic of implicit bias, and judges have begun to try and rem-

The authors of this article conducted an Implicit Association Test where participants were confronted with images of the faces of African-American or white individuals after being given a narrative describing a crime. Participants were asked to quickly click on a button indicating “Guilty” or “Not Guilty” when they observed the image. The study demonstrated that “participants held implicit associations between Black and Guilty.” The study further found that those associations “predicted judgments of the probative value of the evidence.” Thus, the participants were more likely to find evidence more probative of guilt when the defendant was African-American than when the defendant was white. The study also found that “implicit attitudes of race and guilt are quite different from attitudes of race revealed by using explicit measures.” Id. at 207. 178 Chris Chambers Goodman, Shadowing the Bar: Attorneys’ Own Implicit Bias, 28 Berkeley La Raza L.J. 18, 34 (2018). 179 Levinson, supra note 177, at 207 (noting that “implicit attitudes of race and guilt are quite different from attitudes of race revealed by using explicit measures”). 180 Washington v. Berhe, 444 P.3d 1172, 1181 (Wash. 2019). Implicit racial bias is neither experienced nor expressed in the same way as explicit racial bias. Explicit racial bias is consciously held, although the biased person may not be willing to admit to having such bias if asked. Implicit racial bias, however, primarily exists at an unconscious level, such that the biased person is unlikely to be aware that it even exists. This occurs because ‘it is now socially unacceptable to be overtly racist. Yet we all live our lives with sterotypes that are ingrained and often unconscious, implicit biases that endure despite our best efforts to eliminate them.’ Implicit racial bias can therefore influence our decisions without our being aware of it ‘because we suppress it and because we create it anew through cognitive processes that have nothing to do with racial animus. Id. (quoting Washington v. Saintcalle, 309 P.3d 326, 335–36 (Wash. 2013). Vol. 12, No. 2 Northeastern University Law Review 535 edy the impact of implicit bias in the courtroom, focusing on the attitudes and stereotypes jurors bring with them into trial.181 As the Chief Justice on the Iowa Supreme Court stated:

It is as important to address implicit bias in jury deliberations as it is to address racial diversity in jury selection. The more this is done, the more these biases and differences will cease to exist. The more this is done, the more the goal of a fair and impartial trial will be understood. Any verdict, judgement or sentence motivated by any type of bias is unjust. Our system of justice must have confidence that the outcomes of trials were achieved with impartiality and fairness.182

Yet, despite the prevailing view that implicit bias can infect jury deliberations and impact verdicts without any expression of explicit animus, jurors who observed such bias during deliberations cannot provide evidence of those observations after a verdict has been rendered to demonstrate an unfair or biased result. The Peña-Rodriguez exception does not allow for a verdict to be impeached based upon juror testimony regarding implicit bias during deliberations.183 This limitation protects the privacy of deliberations and prevents defendants from conducting “fishing expeditions” delving into jury deliberations post-verdict by preventing speculation from providing a basis for opening up an inquiry. It also protects the finality of the verdict by limiting the application of the exception to the narrow in-

181 Debra Lyn Bassett, Deconstruct and Superstruct: Examining Bias Across the Legal System, 46 U.C. Davis L. Rev. 1563, 1580 (2013). The Implicit Bias Working Group [of the American Bar Association] is building on the work of others in the association, such as the ABA Judicial Division, the Section of Litigation, and the Criminal Justice Section. These three entities make up the ABA’s Joint Committee on Fighting Implicit Bias in the Justice System. A book is being drafted by this entity that focuses on fighting implicit bias in the justice system while advancing citizen understanding and support for the justice system. Paulette Brown, A Blueprint for Promoting Diversity in the Law, Judges’ J., Spring 2016, at 9, 10. 182 Iowa v. Plain, 898 N.W.2d, 801, 829 (Iowa 2017) (Cady, Chief J., concurring). 183 Carrie Leonetti, Smoking Guns: The Supreme Court’s Willingness to Lower Procedural Barriers to Merits Review in Cases Involving Egregious Racial Bias in the Criminal Justice System, 101 Marq. L. Rev. 205, 228 (2017). 536 Finegan stances where evidence demonstrates an explicit racial bias directed at the defendant in the case. However, the failure of the Peña-Rodri- guez exception to address the impact of implicit bias on jury deliberations exposes a huge flaw in using the exception as a way to ensure protection of a defendant’s Sixth Amendment right to a fair trial and impartial jury. The narrow holding of Peña-Rodriguez and the limited application of its exception by lower courts has led to the case having very little impact on subsequent cases. And this result was likely intended by the Supreme Court. The important policy considerations behind the no-impeachment rule would be severely undermined if there were not strict limitations preventing the investigation into jury deliberations after a verdict has been rendered. And yet, as evidenced by cases in which lower courts have held the Peña-Rodriguez exception inapplicable, there are many instances of significant juror bias and misconduct that undermine fairness of the proceedings.184 Under the current interpretation of the rule, those instances of bias and misconduct are unable to be addressed after a verdict has been rendered. Thus, in order to preserve a defendant’s right to a fair and impartial trial, other steps must be taken to ensure that the influence of juror bias in rendering a verdict is minimized.

IV. Suggestions for Preserving a Defendant’s Right to a Fair Trial in the Wake of Peña-Rodriguez Peña-Rodriguez is not the first case to attempt to balance the Sixth Amendment rights of a defendant with the no-impeachment rule. State courts have been attempting to alleviate the impact of bias on verdicts long before the Peña-Rodriguez decision. In Wash- ington State, courts have long held that jurors may testify regarding racial bias influencing deliberations, in order to impeach a verdict.185 Thus, when a defendant makes a prima facie showing of racial bias in deliberations the trial court is required to hold an evidentiary hearing on a motion for a new trial “as a matter of due process.”186

184 See discussion supra Part III(A) and accompanying notes. 185 State v. Jackson, 879 P.2d 307 (Wash. 1994). 186 Berhe, 444 P.3d at 1179. [W]here a juror’s statements during deliberations “create a clear inference of racial bias,” there is “a valid issue of juror misconduct.” In such a case, “as a matter of due process, the trial court should . . . conduct[] an evidentiary hearing before ruling on [a] motion for a new trial” to eliminate any “lingering doubt about” whether the defendant had received a fair trial. Vol. 12, No. 2 Northeastern University Law Review 537

In an application of this rule, the Supreme Court of Washing- ton recently vacated a trial judge’s denial of the defendant’s motion for a new trial based upon evidence of racial bias influencing the verdict. In Washington v. Berhe, the Washington high court held that the trial court abused its discretion in failing to conduct an evidentiary hearing and failing to adequately oversee the investigation regarding allegations of juror prejudice in a criminal trial.187 The Washington Supreme Court recognized the discretion trial courts have in determining whether to hold an evidentiary hearing after a verdict has been rendered and acknowledged the importance of the no-impeachment rule in promoting the secrecy of jury deliberations.188 Nonetheless, the court held that in cases where the defendant has alleged juror bias, the right to a fair trial trumps the no-impeachment rule.189 Thus, a defendant need not show purposeful discrimination in order to succeed.190 Rather, a defendant need only establish a prima facie showing that, “an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict.”191 The court went on to note that if the evidence of racial bias is equivocal, the court must “conduct further inquiries” and not just reject the motion because there are “plausible, race-neutral explanations for the decision.”192 Thus, Washington State’s interpretation of its no-impeachment rule dramatically expands a criminal defendant’s ability to challenge a verdict based on allegations of racial bias influencing deliberations. This expansion strikes the balance between the Sixth Amendment and the no-impeachment rule by weighing more heavily a defendant’s right to a fair and impartial trial. While this rule does better to protect a defendant’s Sixth Amendment rights when racial discrimination is alleged, it does not reach other forms of bias nor does it address concerns regarding jury harassment post-verdict. The expansive reach of the rule is also unlikely to be adopted by federal courts, who have shown a reluctance to expand upon the

Id. (internal citation omitted). 187 Id. at 1184. 188 Id. at 1178. 189 Id. 190 Id. at 1181. 191 Id. 192 Id. at 1182. 538 Finegan exceptions to the no-impeachment rule and would likely view any expansion as opening up the floodgates for post-verdict impeachment proceedings. Rather than focusing on post-verdict investigations and proceedings to address allegations of bias influencing jury deliberations, a more proactive approach that does not conflict with the no-impeachment rule could minimize the impact of such bias. The role of a judge in the courtroom is to ensure the fairness of the proceedings throughout. Judges do this in various ways–from ensuring the rules of evidence are followed to instructing the jury on the law. Indeed, courts guide jurors in their decision-making through jury instructions.193 In a typical federal case, judges instruct the jury on the law and their role after closing arguments and before jurors retire to deliberate. Judges have broad discretion to tailor the instructions so that jurors understand the law in the case and their role in the trial, and typically rely upon pattern instructions developed in their jurisdiction to address specific points of law.194 As part of the typical instructions given to a jury, a judge will instruct the jury not to let bias or prejudice influence their decision-making. For example, the standard California jury instruction on this point simply tells jurors to avoid letting “bias, sympathy, prejudice, or public opinion influence [their] decision.”195 As members of the judiciary have become more aware of the dangers of implicit bias, judges have begun exploring how to better instruct juries in order to minimize the impact of bias on their evaluation of the evidence and application of the law to the facts of the case during deliberations. Various courts have begun to expand their instructions on implicit bias, and some courts have explored

193 Elek, supra note 176, at 3. 194 “Judges typically rely on these pattern instructions as the heart of their legal guidance to the jury on the substantive law of the case.” Kate E. Bloch & Jeffrey Gould, Legal Indeterminacy in Insanity Cases: Clarifying Wrongfulness and Applying A Triadic Approach to Forensic Evaluations, 67 Hastings L.J. 913, 944 (2016). Because the trial judge is in the best position to determine what instructions are necessary, the judge has broad discretion when instructing the jury, as long as the charge properly submits the issues that control the disposition of the case; this discretion extends to the decision of whether to give jury instructions. Decisions as to jury instructions will not be disturbed on appeal absent an abuse of discretion. 75A Am. Jur. 2d Trial § 871. 195 Cal. Penal Code §1127h (West 2007). Vol. 12, No. 2 Northeastern University Law Review 539 instructing the jury on the impact of unconscious bias prior to the presentation of evidence as well as after the conclusion of closing arguments. Judge Mark Bennett, a federal district court judge in the Northern District of Iowa, spends a significant amount of time during jury selection educating jurors on the impact of implicit bias.196 After jury selection is concluded, Judge Bennett has each juror sign a pledge that, among other things, they “will not decide this case based on biases. This includes gut feelings, prejudices, stereotypes, personal likes or dislikes, sympathies or generalizations.”197 In addition to the discussion that takes place during jury selection, Judge Bennett gives the following instruction to empaneled jurors prior to opening statements:

Do not decide the case based on “implicit biases.” As we discussed in jury selection, everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is, “implicit biases,” that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, I strongly encourage you to evaluate the evidence carefully and to resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases.198

In a similar attempt to minimize the impact of bias on jury deliberations, the federal courts in the Western District of Washing- ton play a 10-minute video for jurors before they are selected for jury service that discusses implicit bias and educates prospective jurors

196 Kang, supra note 169, at 1181-82. Judge Bennett spends approximately 25 minutes during jury selection discussing implicit bias. 197 Id. at 1182. 198 Id. at 1182–83. 540 Finegan on the potential impact that implicit bias can have on decision-making.199 In addition, the judiciary, scholars, and attorneys in the West- ern District of Washington formed a committee that developed jury instructions specifically to address implicit bias.200 The instructions include a preliminary instruction, a witness credibility instruction, and a closing instruction. Each of these instructions define implicit bias and explain to jurors the potential impact this type of unconscious bias can have on any individual’s decision-making.201 State courts have also begun to implement more extensive discussion of implicit bias through jury instructions. The Supreme Court of Iowa reversed the lower court’s determination that it did not have authority to give a jury instruction on implicit bias.202 In so holding the state high court noted that trial judges have broad discretion to address bias in their courtrooms, but declined to mandate a particular method of addressing such bias.203 Several concurrences in the case argued that an implicit bias instruction should be required in cases where a party requests such an instruction.204 In addition to the efforts made by individual courts, the American Bar Association funded an initiative focusing on implicit bias in the jury system. The Achieving an Impartial Jury project de-

199 Unconscious Bias Juror Video, United States District Court: Western District of Washington, https://www.wawd.uscourts.gov/jury/ unconscious-bias. 200 Criminal Jury Instructions - Unconscious Bias, U.S. Dist. Ct. W.D. Wash. (last visited Mar. 31, 2020), https://www.wawd.uscourts.gov/sites/wawd/files/ CriminalJuryInstructions-ImplicitBias.pdf. 201 See id. The preliminary instruction provides It is important that you discharge your duties without discrimination, meaning that bias regarding the race, color, religious beliefs, national origin, sexual orientation, gender identity, or gender of the [plaintiff,] defendant, any witnesses, and the lawyers should play no part in the exercise of your judgment throughout the trial. Accordingly, during this voir dire and jury selection process, I [the lawyers] may ask questions [or use demonstrative aids] related to the issues of bias and unconscious bias. Id. Subsequent instructions explain what implicit bias means and the impact it can have on jury deliberations. 202 Plain, 898 N.W.2d at 829. 203 Id. at 816. 204 Id. at 830 ((Wiggins, J. concurring) (noting that “[i]n the future when a defendant requests an implicit-bias instruction and implicit bias may have an effect on a jury, there is no reason for the court not to instruct the jury on implicit bias”). Vol. 12, No. 2 Northeastern University Law Review 541 veloped proposed jury instructions in an attempt to “de-bias” jury deliberations.205 The instructions are based, in part, on Judge Ben- nett’s instructions and provide:

Our system of justice depends on judges like me and jurors like you being able and willing to make careful and fair decisions. Scientists studying the way our brains work have shown that, for all of us, our first responses are often like reflexes. Just like our knee reflexes, our mental responses are quick and automatic. Even though these quick responses may not be what we consciously think, they could influence how we judge people or even how we remember or evaluate the evidence.

Scientists have taught us some ways to be more careful in our thinking that I ask you to use as you consider the evidence in this case:

Take the time you need to test what might be reflexive unconscious responses and to reflect carefully and consciously about the evidence.

Focus on individual facts, don’t jump to conclusions that may have been influenced by unintended stereotypes or associations.

Try taking another perspective. Ask yourself if your opinion of the parties or witnesses or of the case would be different if the people participating looked different or if they belonged to a different group?

You must each reach your own conclusions about this case individually, but you should do so only after listening to and considering the opinions of the other jurors, who may have different backgrounds and perspectives from yours.

205 Am. Bar Ass’n, Achieving an Impartial Jury (AIJ) Toolbox 12, 15 (2015). 542 Finegan

Working together will help achieve a fair result.206

These independent efforts to minimize the impact of juror bias on deliberations have been met with some criticism. Very little research has been done on the efficacy of these types of -instruc tions, opening up the possibility that it is premature to use such instructions in jury trials.207 Indeed, the one study that attempted to ascertain whether the use of implicit bias instructions minimized the effect of bias on verdicts was unable to replicate the baseline bias expected of participants, and therefore was unable to produce a complete test of the impact of such instructions.208 Further, critics of the use of these instructions argue that instructing jurors on their unconscious biases could actually worsen the effects of those biases rather than alleviate them. Indeed, the Supreme Court has expressed the concern that directly addressing juror bias in voir dire questions “‘could well exacerbate whatever prejudice might exist without substantially aiding in exposing it.’”209 Yet despite these concerns, social science research supports the premise that identifying biases and drawing awareness to them aids in minimizing their impact on decision-making. As scholars have noted, confronting individuals with the existence and impact of unconscious biases can lead to those individuals relying less on their attitudes and stereotypes to make decisions.210 Recent studies have shown that this effect occurs both with “egalitarian-minded and highly prejudiced individuals.”211 The suggestion of incorporating a more thorough discussion of bias into jury instructions is not a new or novel idea. Indeed, even in the Peña-Rodriguez case, the Supreme Court mentioned jury instructions as an effective way of combatting the impact of bias on deliberations.212 However, much more could be done to ensure that

206 Id. 207 Id. at 16. 208 Elekk, supra note 176. 209 Peña-Rodriguez, 137 S. Ct. at 869 (quoting Rosales-Lopez v. United States, 451 U.S. 182, 195 (1981) (Rehnquist, C.J., concurring)). 210 Cynthia Lee, Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post- Racial Society, 91 N.C. L. Rev. 1555, 1608 (2013) 211 Id. at 1607-08 (“More recent social science research on race salience, however, suggests that making race salient helps to reduce racial bias in both egalitarian- minded and highly prejudiced individuals. This is probably due to the fact that race norms in today’s society are more egalitarian than in days past.”) 212 Peña-Rodriguez, 137 S. Ct. at 871 (noting that “[t]rial courts, often at the Vol. 12, No. 2 Northeastern University Law Review 543 judges educate jurors in an effective way that minimizes the impact of bias on the verdict. If protection of the secrecy of jury deliberations and the finality of verdicts is paramount, more effort needs to be made in ensuring that bias does not infect the deliberative process before the final verdict is rendered. First and foremost, there needs to be a consistent, constant, and uniform effort of the judiciary to incorporate clear, thorough, and effective education on bias into jury instructions. It isnot enough that some judges or some jurisdictions incorporate such instructions. In order to root out the impact of bias on deliberations, a uniform effort needs to take place across the federal and state judicial systems. The ABA initiative was a good starting point in commencing this effort, but courts have been slow to incorporate their suggestions. Critics of the use of such instructions have been successful in pointing out potential concerns regarding their use, despite evidence of the impact of bias on jury deliberations and the lack of significant support for harmful effects of educating jurors on the impact of bias. Of course, any discussion of bias and implicit bias must be carefully worded in order to not attack the audience or put them on the defensive. When a judge instructs the jury on the dangers of implicit bias, such instructions need to clearly demonstrate that the judge is not accusing the jurors of being unfair or harboring unique prejudices.213 Rather, the wording of such instructions needs to explain that all individuals harbor theses biases, including the judge herself. Indeed, poorly worded instructions can have the opposite effect of that intended by causing jurors to react defensively to the suggestion that they would allow bias to influence their deliberations in the case.214 Because judges already rely on pattern

outset of the case and again in their final jury instructions, explain the jurors’ duty to review the evidence and reach a verdict in a fair and impartial way, free from bias of any kind”). 213 Kang, supra note 169, at 1183 (“Juror research suggests that jurors respond differently to instructions depending on the persuasiveness of each instruction’s rationale. . . . Accordingly, the implicit bias instructions to jurors should be couched in accurate, evidence-based, and scientific terms. As with the judges, the juror’s education and instruction should not put them on the defensive, which might make them less receptive. Notice how Judge Bennett’s instruction emphasizes the near universality of implicit biases, including in the judge himself, which decreases the likelihood of insult, resentment or backlash from the jurors.”). 214 Anna Roberts, Reclaiming the Importance of the Defendant’s Testimony: Prior Conviction Impeachment and the Fight Against Implicit Stereotyping, 83 U. Chi. 544 Finegan jury instructions to address particular points of law, creating a standard pattern jury instruction to address bias that thoughtfully and thoroughly addresses juror bias should aid judges in addressing this topic during trial. Equally important to carefully wording any instructions on bias, such instructions should be given early in the trial process, and not reserved until after closing arguments.215 The earlier a jury is educated on the impact of bias, the more likely that education will help minimize the effects of juror’s attitudes and stereotypes on their decision-making. A juror who is instructed on bias before the presentation of evidence in a case is more likely to evaluate the weight of that evidence on its merits, free from the biases the juror may have brought into the courtroom with him.216 Likewise, instructions on bias early in the case may lessen the impact that stereotypes and attitudes have on juror’s memory of the facts in the case during deliberations. In addition to a uniform effort to create effective jury instructions that can be incorporated into every stage of trial, such instructions should be mandatory in every case which may implicate juror bias. When counsel requests that an implicit bias instruction be given, it should be required that a judge give the instruction. Because of the dangers of bias on jury deliberations, and the limited ability to investigate the impact of such biases after a verdict has been rendered, it should not be left to the discretion of individual judges as to whether to include an instruction on bias when counsel has requested that one be given. Further, should the state and federal judiciary come up with standardized, carefully-worded instructions on implicit bias, it should be relatively commonplace and straightforward for a judge to include those instructions in the case. Further, such instructions should not be limited to race. As the Peña-Rodriguez case highlighted, racial prejudice has historically affected our judicial system in a pervasive and pernicious way, and

L. Rev. 835, 872 (2016). Fears that implicit bias instructions can actually worsen the impact of bias in deliberations “receive some support from research finding that, if handled inappropriately, bias-reduction efforts can backfire.” 215 Kang, supra note 169, at 1181; Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv L. & Pol’y Rev. 149, 169 (2010). 216 Lee, supra note 210, at 1607–08 (Noting that “recent social science research on race salience . . . suggests that making race salient helps to reduce racial bias in both egalitarian-minded and highly prejudiced individuals”). Vol. 12, No. 2 Northeastern University Law Review 545 thus significant efforts need to be made to minimize the impact of racial biases on jury deliberations. But simply because one type of bias has had a more harmful impact to our system of justice does not mean that other types of bias should be ignored. Thus, where bias against an individual’s gender, religion, gender-identity, nationality, or ethnicity could impact jury deliberations, educating jurors on the potential effect of those biases can help to lessen their impact. Finally, in addition to more thoroughly, consistently, and effectively addressing bias in jury instructions, judges can also better encourage jurors to come forward with allegations of biased behavior on the part of their fellow jurors. As scholars and judges alike have pointed out, jurors are unlikely to accuse their fellow jurors of racist or bigoted attitudes during deliberations.217 However, with increased education on the effect of bias on decision-making, jurors may be more receptive to the idea of coming forward with evidence that bias is impacting the deliberative process. Judges could aid in this effort by proactively incorporating opportunities for jurors to identify instances of juror bias prior to verdict. This practice could take many different forms–from simply encouraging jurors in jury instructions to bring any evidence of juror bias affecting deliberations to the judge’s attention to anonymously surveying jurors prior to the rendering of the verdict seeking indications of juror bias. Currently, courts will poll jurors after deliberations are over when one party requests it. The typical practice is for judges to simply ask each juror, in front of one another, whether they agree with the verdict.218 While this measure can detect some instances where a juror might have felt pressured into voting a certain way even though they did not agree with the outcome, jurors may be reluctant to raise such issues in front of their fellow jurors. A more extensive, anonymous survey of jurors seeking to determine not only whether the verdict was unanimous, but also whether there

217 Peña-Rodriguez, 137 S. Ct. at 869. 218 Jackson v. State, 41 So. 178, 179 (Ala. 1906) (“Polling the jury is a practice whereby the jurors are asked individually, whether they assented and still assent to the verdict.”). The polling of the jury is the means for definitely determining, before it is too late, whether the jury’s verdict reflects the conscience of each of the jurors or whether it was brought about through the coercion or domination of one of them by some of his fellow jurors or resulted from sheer mental or physical exhaustion of a juror. Commonwealth v. Martin, 109 A.2d 325, 328 (Pa. 1954). 546 Finegan was any misconduct that was evidenced during deliberations that might undermine the constitutionality of the proceedings, would help to ensure that Sixth Amendment guarantees are protected.219 By educating jurors on the dangers of bias in jury deliberations and providing a safe way in which jurors can expose evidence of such bias, courts may have a better opportunity to remedy the impact of bias and will avoid the need to investigate whether such bias impacted the verdict after proceedings are over.

V. Conclusion The Supreme Court’s holding in Peña-Rodriguez recognized that the impact of racial bias on jury deliberations could undermine a defendant’s Sixth Amendment rights to a fair trial and impartial jury. Unlike prior precedent that held that the important policies underlying the no-impeachment rule must prevail even when significant juror misconduct is alleged, the Peña-Rodriguez Court struck a balance in favor of preserving a defendant’s constitutional rights over concerns about jury harassment or the need to ensure the finality of verdicts. This holding was an important step in the right direction, allowing a small window into jury deliberations after the verdict in order to root out a specific type of bias that undermines the constitutionality of the proceedings. The Court’s holding narrowly defined the scope of this exception to the no-impeachment rule, and lower courts applying the Peña-Rodriguez exception have been reluctant to expand upon its rationale to address other forms of bias or misconduct that could impact the constitutionality of a verdict. The limited nature of the Peña-Rodriguez exception ensures that the underlying policies of the no-impeachment rule are preserved, but fails to adequately address the constitutional concerns that are raised in cases in which juror bias is alleged to have affected the outcome of the proceedings but the bias does not meet the narrow parameters of the exception. Thus, as some state courts have found, Peña-Rodriguez does not go far enough in protecting a defendant’s Sixth Amendment

219 Some states prohibit anonymous jury polling, finding that it denies the defendant his right to confront jurors individually and ascertain their agreement with the verdict. Nancy J. King, Nameless Justice: The Case for the Routine Use of Anonymous Juries in Criminal Trials, 49 Vand. L. Rev. 123, 141, 147 (1996). The suggestion for anonymous surveys or polling would not need to replace the traditional jury poll, but could supplement it to provide further information for the trial judge. Vol. 12, No. 2 Northeastern University Law Review 547 right to a fair trial and so the exception to the no-impeachment rule should be more broadly applicable. Yet it is unlikely that federal courts will follow suit and expand upon the rationale of the Peña-Ro- driguez holding. As demonstrated by the federal court decisions applying the case, courts are reluctant to apply the exception beyond the narrow constraints of the holding. Concerns over opening the floodgates to post-verdict challenges, undermining verdict finality, and leading to the harassment of jurors are not without merit. Yet a defendant’s right to a fair trial must be paramount. Thus, as this Article suggests, courts employing other methods of addressing biases that may affect jury verdicts would not run afoul of the no-impeachment rule or its underlying policies. By creating uniform, clear, thorough instructions on the impact of bias on jury deliberations, the judiciary can help better educate jurors on what attitudes or stereotypes are improper to consider or rely upon in deliberations. Further, through these instructions, the judiciary can ensure that jurors are not just educated on racial bias, but on all forms of bias that would undermine the constitutionality of the proceedings. In addition, such instructions should be made mandatory in any case in which they are requested. Finally, the judiciary should encourage judges to create opportunities for jurors to anonymously report on any improper bias that appears to be influencing deliberations before the verdict is rendered. Such opportunities can take the form of anonymous surveys or questions that may encourage jurors to report instances of misconduct. By incorporating these processes prior to the jury rendering a verdict, courts would be better able to investigate and identify unconstitutional bias influencing jury deliberations without undermining the important policy considerations of the no-impeachment rule. When a rule of evidence, no matter how historic, comes into conflict with a constitutional right, every effort should be made to ensure that right is protected. By avoiding the application of the no-impeachment rule and focusing efforts on educating and interact- ing with jurors pre-verdict, judges will better protect a defendant’s rights without undermining the finality of verdicts or encouraging the harassment of jurors post-trial. 548 Finegan Vol. 12, No. 2 Northeastern University Law Review 549

Certain Destruction: Pre-Disaster Mitigation in a Post-Maria World

By Leeja Miller*

* Northeastern University School of Law, Class of 2020. 550 Miller

Table of Contents Author’s Foreword �� 551 I. Introduction �� 551 II. The Science ��552 III. The Dangers of More Numerous Natural Disasters �� 553 IV. U.S. Disaster Response Procedure �� 554 V. Puerto Rico: A Case Study �� 558 A. Puerto Rico Before the Storm �� 559 B. Puerto Rico’s Pre-Disaster Mitigation Plan �� 561 VI. WhiteFIshgate and Immediate Hurricane Maria Response 562 A. Post-Maria Puerto Rico �� 566 VII. Ideas for Change ��567 A. Reforming the Stafford Act ��567 B. Strengthening Pre-Disaster Mitigation �� 571 1. Pre-disaster mitigation projects require increased funding �� 571 2. Emerging technologies can streamline pre-disaster planning ��572 C. Taxation ��574 D. Insurance ��576 E. Decentralized Ownership ��578 VIII. Conclusion ...... 579 Vol. 12, No. 2 Northeastern University Law Review 551

Author’s Foreword This Note was written in the wake of one of the deadliest hurricane seasons on record with an eye towards disaster preparedness in the face of increasingly frequent natural disasters. At the time of its publication, May 2020, during the height of the COVID-19 global pandemic, this Note’s message feels all the more relevant. A natural disaster of a different stripe, pandemics pose a cataclysmic threat that must be addressed in disaster preparedness plans. The conclusions and solutions put forth in this Note can, and must, be applied across the disaster preparedness infrastructure in the United States, from hurricanes to pandemics. It is my hope that by examining past mistakes, as is done in this Note with regards to hurricane preparedness and as must be done by society at large with regards to our preparedness in the face of COVID-19, we can be better adapted to weather the disasters that are sure to come in the future.

I. Introduction Three of the five costliest hurricanes in United States history happened during the 2017 hurricane season.1 Hurricanes Harvey, Irma, and Maria all struck the United States within a one-month period and caused an estimated $265 billion in damage.2 Hundreds of lives were lost3 and the effects of the hurricanes impacted approximately 25.8 million people, nearly 8% of the United States population.4 Despite an entire governmental apparatus designed to mitigate risk and provide immediate response in the wake of disaster, many suffered and died due to insufficient mitigation planning and an inadequate response after the hurricanes made landfall.5 The aim

1 U.S. Gov’t Accountability Office, GAO-18-335, 2017 Disaster Contracting: Observations on Federal Contracting for Response and Recovery Efforts 1 (2018) [hereinafter 2017 Disaster Contracting]. 2 Id. at 1, 4. 3 Estimates on the number of lives lost in Hurricane Maria and its aftermath range from 64 to 2,975 people. See, e.g., Nicole Acevedo, Puerto Rico Lacked Disaster Planning, Communications Strategy, Hurricane Study Found, NBC (Aug. 29, 2018), https://www.nbcnews.com/storyline/puerto-rico-crisis/puerto-rico-lacked- disaster-planning-communications-strategy-hurricane-study-found-n904866; Frances Robles, Puerto Rican Government Acknowledges Hurricane Death Toll of 1,427, N.Y. Times (Aug. 9, 2018), https://www.nytimes.com/2018/08/09/ us/puerto-rico-death-toll-maria.html. 4 2017 Disaster Contracting, supra note 1, at 1. 5 Acevedo, supra note 3 (“But while most initial headlines focused on the study’s number of deaths, the report outlined recommendations based on the 552 Miller of this Note is to figure out what went wrong and what could be done to prevent it from happening again. I will not define a single solution to inadequate disaster planning in the United States. Rather, my aim is to highlight the underlying issues that led to the dramatic destruction of property and life in Puerto Rico. I will then provide a brief canvas of possible solutions and their strengths and shortcomings as means to encourage future research that may lead to a practicable solution to the current state of affairs. Ultimately, if the United States does not drastically change its disaster preparedness procedure, some of its most populated regions face certain destruction.

II. The Science Despite consistent warnings from scientists, climate activists, and elected officials that the frequency and intensity of catastrophic weather events would increase with the warming planet,6 very little was in place before the 2017 hurricane season to protect and prepare communities for the aftermath of devastating storms, especially in Puerto Rico.7 Climate change has been linked to increased and more dramatic instances of natural disasters for over a decade.8 In October 2018 the U.S. Global Change Research Program (USGCRP) issued a report stating that the prognosis for climate degradation is worse than originally anticipated.9 That report explicitly pointed to

flaws that the hurricane’s aftermath exposed, such as a lack of preparation for a massive natural disaster and a series of missteps in keeping the public informed after the hurricane’s aftermath.”). 6 See, e.g., Richard Black, A Brief History of Climate Change, BBC (Sept. 20, 2013), https://www.bbc.com/news/science-environment-15874560; Josh Gabbatiss, Natural Disasters Increasingly Linked to Climate Change, New Report Warns, Independent (Dec. 11, 2017), https://www.independent. co.uk/environment/climate-change-natural-disasters-link-increase-global- warming-report-warning-a8103556.html. 7 Laura Sullivan & Emma Schwartz, FEMA Report Acknowledges Failures in Puerto Rico Disaster Response, NPR (July 13, 2018), https://www.npr. org/2018/07/13/628861808/fema-report-acknowledges-failures-in-puerto- rico-disaster-response. 8 Chelsea Harvey, Scientists Can Now Blame Individual Natural Disasters on Climate Change, Sci. Am. (Jan. 2, 2018), https://www.scientificamerican.com/article/ scientists-can-now-blame-individual-natural-disasters-on-climate-change/. 9 2 U.S. Glob. Change Research Program, Impacts, Risks, and Adaptation in the United States: Fourth National Climate Assessment 36 (2018), https://nca2018.globalchange.gov/downloads/ NCA4_2018_FullReport.pdf [hereinafter USGCRP Climate Assessment]. Vol. 12, No. 2 Northeastern University Law Review 553 increased natural disasters as a direct result of the changing tem- peratures on Earth.10 Despite these warnings, the current U.S. Ad- ministration continues its efforts to liberalize regulations of natural resource exploitation, allowing for further destruction of preserved land.11 The United States is one of few countries in the developed world that regularly and resoundingly questions the conclusions of scientists, and the value of climate research generally,12 even if those conclusions are supported by nearly all of the scientific community.13 As such, persuading the country’s top leadership even to recognize the threat of increased natural disasters is an uphill battle. Despite the difficulty, it is imperative to convince those in power that planning for disasters is essential to the survival of much of the U.S. population, because scientific fact shows that these disasters will keep occurring and getting worse.14 If elected officials cannot be convinced, the wellbeing of our nation requires that these officials be replaced.

III. The Dangers of More Numerous Natural Disasters With an increase in natural disasters comes an increased risk for human rights abuses. These abuses frequently manifest as negligent withholding or unequal distribution of vital provisions like fresh water and food immediately after a disaster.15 Often, commu-

10 Id. at 66 (“Individual extreme weather and climate-related events—even those that have not been clearly attributed to climate change by scientific analyses— reveal risks to society and vulnerabilities that mirror those we expect in a warmer world.”). 11 Nadja Popovich et al., 95 Environmental Rules Being Rolled Back Under Trump, N.Y. Times, https://www.nytimes.com/interactive/2019/climate/trump- environment-rollbacks.html (last updated Dec. 21, 2019). 12 See, e.g., Cary Funk, Democrats Far More Supportive than Republicans of Federal Spending for Scientific Research, Pew Res. Ctr. (May 1, 2017), http://www. pewresearch.org/fact-tank/2017/05/01/democrats-far-more-supportive- than-republicans-of-federal-spending-for-scientific-research/?fbclid=IwAR 1W1c8D2EEPUzwpDytVISqtDwYgdPCsXbg5TzUD0KDczkkWfg3kWU5_ UkM. 13 See, e.g., Scientific Consensus: Earth’s Climate is Warming, NASA, https://climate. nasa.gov/scientific-consensus/ (last visited Nov. 10, 2018). 14 USGCRP Climate Assessment, supra note 9, at 25. 15 For more information on human rights in the aftermath of natural disasters, see Elizabeth Ferris, Natural Disasters, Human Rights, and the Role of Human Rights Institutions, Brookings (Oct. 25, 2008), https://www.brookings.edu/on- the-record/natural-disasters-human-rights-and-the-role-of-national-human- rights-institutions; Sue Sturgis, Recent Disasters Reveal Racial Discrimination in 554 Miller nities with the least amount of resources also receive life-saving supplies last or in smaller quantities.16 Indeed, international legal bodies such as the U.N. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) have explicitly noted that women and other vulnerable communities, like children and the elderly, disproportionately suffer human rights abuses because of climate change generally and natural disasters specifically.17 Disas- ter planning that recognizes the potential for human rights abuses during natural disasters is essential to protect the most vulnerable among us. Additional threatened human rights include access to safe shelter after a disaster has destroyed residences, access to clean drinking water, and safety from crime. When multiple hurricanes make landfall in the U.S. within a short period of time, all of these dangers, abuses, and needs are amplified. As evidenced by the federal government’s response to Hurricane Maria in Puerto Rico, this country has yet to learn from past mistakes made in the aftermath of disaster.18 Serious efforts must be made to ensure thatall inhabitants of the U.S. and its territories have access to disaster planning and resources when the next hurricane strikes.

IV. U.S. Disaster Response Procedure The Stafford Act is the principal regulatory apparatus by which disaster response and preparedness is governed at the federal level.19 It governs the Presidential response to natural and man- made disasters.20 Most powers in this Act are delegated to the Fed- eral Emergency Management Agency (FEMA), which also manages the allocation of federal funds before and after a disaster occurs and provides a general blueprint for managing disaster response efforts.21 Before a disaster occurs, the Stafford Act incentivizes local

FEMA Aid Process, Facing South (Sept. 24, 2018), https://www.facingsouth. org/2018/09/recent-disasters-reveal-racial-discrimination-fema-aid-process. 16 Sturgis, supra note 15. 17 See generally Office of the High Comm’n on Hum. Rights, Individual Report on the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Dec. 2013), https://www.ohchr.org/en/ issues/environment/srenvironment/pages/mappingreport.aspx. 18 Sullivan & Schwartz, supra note 7. 19 About the Agency: Statutory Authority, FEMA, https://www.fema.gov/about- agency (last visited Dec. 10, 2019). 20 Id. 21 Id. Vol. 12, No. 2 Northeastern University Law Review 555 governments to implement disaster preparedness plans on their own and, using those plans, apply for federal dollars well in advance of any emergency.22 It authorizes the President, through FEMA, to create a program that provides assistance to states and local communities both to create pre-disaster mitigation plans and implement hazard mitigation projects.23 These hazard mitigation projects must be “designed to reduce injuries, loss of life, and damage and destruction of property, including damage to critical services and facilities under the jurisdiction of the States or local governments.”24 Autho- rized by this legislation, FEMA has created the Pre-Disaster Mitiga- tion Grant Program through which state governments can apply for assistance by submitting a plan proposal.25 The grant applications range from requests for funds to create disaster preparedness plans to the construction of emergency shelters and the reinforcement of vital infrastructure.26 In this way, the Stafford Act, by creating a mechanism for FEMA to disperse available funds, incentivizes local communities to implement disaster preparedness plans and projects that the community itself has deemed necessary. One area of particular interest in disaster preparation is advance contracting. Efficient, equitable contracts, created in advance of natural disaster, are necessary to ensure that in the event of a storm, communities already have the means to secure resources like food and shelter, implement search and rescue operations, and begin restoring vital services compromised during the catastrophe. Con- tracts can be put in place between localities and suppliers ahead of time to be implemented in the event of a disaster. Perishable items, emergency provisions for which a community does not have storage space, and the rebuilding process, which requires a scalable number of skilled workers to come into the community, are all resources

22 42 U.S.C. §§ 5131(c), 5133(b) (2012). 23 Id. §§ 5131, 5133. 24 Id. § 5133(b). 25 Pre-Disaster Mitigation Grant Program, FEMA, https://www.fema.gov/ pre-disaster-mitigation-grant-program (last visited Jan. 21, 2019). This online resource generally provides extensive, albeit somewhat convoluted, information for state and local governments to use in their pre-mitigation planning processes. 26 See, e.g., Pre-Disaster Mitigation Program FY 2017 Subapplication Status, FEMA, https://www.fema.gov/pre-disaster-mitigation-program-fy-2017- subapplication-status (last visited Apr. 12, 2019) (providing a list of all grant applications received for fiscal year 2017 and their status in the review process). 556 Miller that can be contracted for ahead of time. Advance contracting is a preparedness method that has been tested in past disasters.27 Local governments often make contracts with private entities, like construction companies, and these contracts are essential to rebuilding after a natural disaster.28 The federal government, usually through FEMA and the U.S. Army Corps of Engineers (USACE), also establishes advance contracts in an effort to ensure that contracting best practices, like competitive bidding, are in place to protect taxpayers from fraud.29 If contracts are not set up ahead of time in anticipation of future disasters, then communities and local governments must scramble to secure contracts after disaster strikes to restore power grids and access to fresh drinking water, among many other provisions. Without pre-disaster contracts, response efforts are slowed significantly by the lag time in requesting assistance and waiting for those requests to be processed and sent to affected communities.30 Private entities can exploit this desperation by hiking prices and using unfair contractual language.31 Corruption on both sides of the bargaining table leads to wasted resources, time, and, sometimes, human life. Transparency in government contracting becomes lost in the chaos. Competitive bidding between companies for contracts, essential to the fair and transparent contract acquisition process, goes to the wayside when those contracts are formed in the wake of a disaster. The entity that most loses out in this scenario is the

27 See, e.g., Kevin J. Wilkinson, More Effective Federal Procurement Response to Disasters: Maximizing the Extraordinary Flexibilities of IDIQ Contracting, 59 A.F. L. Rev. 231, 233–35 (2007) (“In August 2005, Hurricane Katrina validated the multiple-award IDIQ [indefinite-delivery, indefinite-quantity] contract as an essential contractual vehicle for use during and after natural disasters (and other emergencies), not so much by what was done than by what was not done. Hurricane Katrina exposed serious shortcomings in federal agencies’ logistics and contract planning and execution.”). 28 2017 Disaster Contracting, supra note 1, at 1, 6 (“[C]ontracts awarded by state and local entities in response to the hurricanes, such as debris removal contracts, . . . may be eligible for reimbursement through federal disaster assistance grant programs.”). 29 See id. at 85; Project on Gov’t Oversight, Federal Contracting 1 (2006), http://pogoarchives.org/m/cp/cp-KatrinaContracting-08282006.pdf. 30 More Efficient Disaster Response Through Pre-Disaster Contracts, FEMA (July 23, 2019), https://www.fema.gov/media-library/assets/audio/178862. 31 See, e.g., Naomi Klein, How Power Profits from Disaster, Guardian (July 6, 2017), https://www.theguardian.com/us-news/2017/jul/06/naomi-klein- how-power-profits-from-disaster (surveying how private companies profit from disasters both natural and man-made). Vol. 12, No. 2 Northeastern University Law Review 557 taxpayer, who is at the mercy of the government to spend tax dollars in a way that is responsible, efficient, and transparent, so that tax dollars actually go toward protecting the communities that need protection. Once a disaster has occurred, the Stafford Act requires that the affected state32 request a disaster declaration from the Presi- dent.33 The request will be granted, subject to the President’s discretion,34 based on a finding “that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary.”35 Once a major disaster is declared, Governors in the affected region can begin requesting assistance from the federal government through FEMA’s Public Assistance and Hazard Mitigation Grant Programs.36 The Public Assistance Grant Program is FEMA’s largest grant program and provides assistance to disaster-hit areas for needs like debris removal and emergency protective measures.37 Within

32 The Stafford Act defines the term “state” to include “any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.” 42 U.S.C. § 5122(4) (2012). As such, any reference to a state in this Note within the context of the Stafford Act should be understood to include Puerto Rico. Id.; see also Erin J. Greten & Ernest B. Abbott, Representing States, Tribes, and Local Governments Before, During, and After a Presidentially Declared Disaster, 48 Urb. Law. 489, 503 (“States, tribes, and local governments (including public authorities) are eligible to receive direct assistance and financial awards under the Public Assistance Program. A ‘state’ includes any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.”). 33 42 U.S.C. § 5170 (2012). 34 Id. (“Based on the request of a Governor under this section, the President may declare under this chapter that a major disaster or emergency exists.” (emphasis added)). 35 Id. § 5170(a). 36 FEMA provides a basic overview of this grant program on their website. Hazard Mitigation Grant Program, FEMA (Dec. 17, 2019), https://www.fema. gov/hazard-mitigation-grant-program. Federal contributions are authorized up to “75 percent of the cost of hazard mitigation programs.” 42 U.S.C. § 5170c(a) (2012). 37 Public Assistance Fact Sheet, FEMA (Aug. 17, 2018), https://www.fema.gov/ media-library-data/1534520705607-3c8e6422a44db5de4885b516b183b7 ce/PublicAssistanceFactSheetJune2017_Updated2018.pdf; FEMA, Public Assistance: Local, State, Tribal and Private Non-Profit (May 20, 2019), https:// www.fema.gov/public-assistance-local-state-tribal-and-non-profit. 558 Miller the Public Assistance Grant program, the Hazard Mitigation Grant Program is specifically for allocating funds for “measures which the President [through FEMA] has determined are cost-effective and which substantially reduce the risk of future damage, hardship, loss, or suffering in any area affected by a major disaster.”38 Requests for local projects are compiled by eligible entities, like state agencies, local governments, etc., and submitted to the state, which then determines which projects are most pressing and eligible for aid.39 Then, the state creates a funding request to be sent to FEMA.40 Once FEMA approves a request, funds are released to the affected state’s leadership, which then must distribute the subaward funds to localities as they begin to rebuild and “[m]onitor the activities of the [locality] as necessary to ensure that the subaward is used for authorized purposes; that the activities are in compliance with Federal statutes, regulations, and the terms and conditions of the subaward; and that subaward performance goals are achieved.”41 FEMA does not provide a specific timeline for how long this process takes, but a FEMA administrator must be involved in the approval process, and often localities need time after the disaster strikes to determine where their greatest needs lie.42 Ultimately, despite a robust federal emergency management apparatus, it is up to localities to have location-specific, forward-thinking hazard response plans in place before disaster strikes. We saw a particularly stark example of the grave consequences of a failure to implement a robust disaster mitigation plan and of the dangers inherent in disaster contracting in the aftermath of Hurricane Maria in Puerto Rico.

V. Puerto Rico: A Case Study On September 20th, 2017, Category 4 Hurricane Maria made landfall in Puerto Rico, devastating the island’s already frail electric grid.43 Six days later, the Puerto Rican Electric Power Authority

38 42 U.S.C. § 5170c(a) (2012). 39 FEMA, Hazard Mitigation Assistance Guidance 5, 26 (2015), https://www.fema.gov/media-library-data/1424983165449-38f5dfc69c0bd4 ea8a161e8bb7b79553/HMA_Guidance_022715_508.pdf. 40 Id. 41 Id. at 81–83. 42 See generally id. at 78–79, 86. 43 Laura Sullivan, How Puerto Rico’s Debt Created A Perfect Storm Before the Storm, NPR (May 2, 2018), https://www.npr.org/2018/05/02/607032585/how- puerto-ricos-debt-created-a-perfect-storm-before-the-storm. Vol. 12, No. 2 Northeastern University Law Review 559

(PREPA), a government-controlled entity in charge of electricity for the entire island, entered into a $300 million no-bid contract with a small, little-known44 contractor out of Montana named Whitefish En- ergy to restore power to the island.45 As details of the hastily-drafted contract emerged, multiple government agencies launched inquiries into the questionable circumstances surrounding the formation of the contract as well as the language of the contract itself.46 Though Puerto Rico’s governor canceled the contract within two months of its formation,47 likely as a result of the subsequent media and governmental investigations, this was just one of several questionable contracts that were created in the aftermath of the 2017 hurricane season.48

A. Puerto Rico Before the Storm A comprehensive review of Puerto Rican history is beyond the scope of this Note, but it is worth noting a few aspects of the island’s history to paint a clearer picture of the obstacles currently faced by the reconstruction effort there. While Puerto Rico is a U.S. territory and its legal status as such complicates this analysis, many of the difficulties that the island is facing are universal amongst vulnerable coastal communities across the United States.49 Native Taíno people populated the island, which they named Boriquén, for over 1,000 years before Christopher Columbus claimed

44 Indeed, “Whitefish, which received the largest contract yet awarded inthe troubled relief effort, had only two full-time employees on the day Hurricane Maria hit the island. The company had never taken on repairs on the scale of the destruction suffered in Puerto Rico.” Aaron C. Davis,FEMA Cites ‘Significant Concerns’ Over Whitefish Energy Deal in Puerto Rico, Wash. Post (Oct. 27, 2017), https://www.washingtonpost.com/investigations/congressional-committee- asks-for-records-of-whitefish-energy-deal/2017/10/26/327ba64e-ba9b-11e7- be94-fabb0f1e9ffb_story.html?utm_term=.28a0da1f7d98. 45 Id. 46 Id. 47 Frances Robles & Deborah Acosta, Puerto Rico Cancels Whitefish Energy Contract to Rebuild Power Lines, N.Y. Times (Oct. 29, 2017), https://www.nytimes. com/2017/10/29/us/whitefish-cancel-puerto-rico.html. 48 Frances Robles, $3,700 Generators and $666 Sinks: FEMA Contractors Charged Steep Markups on Puerto Rico Repairs, N.Y. Times (Nov. 26, 2018), https://www. nytimes.com/2018/11/26/us/fema-puerto-rico-housing-repairs-maria.html. 49 See, e.g., John Scala, U.S. Coastline Vulnerability to Hurricanes is Growing to Unprecedented Levels, Wash. Post (Aug. 26, 2015), https://www. washingtonpost.com/news/capital-weather-gang/wp/2015/08/26/u-s- coastline-vulnerability-to-hurricanes-is-growing-to-unprecedented-levels/. 560 Miller the land for Spain in 1493.50 After smallpox killed most of the native population, Spain brought in human slaves from Africa to exploit the land for sugarcane, tobacco, and coffee.51 After roughly 400 years of imperial rule, Spain signed Puerto Rico over to the United States under the Treaty of Paris in 1898, formally ending the Span- ish-American War.52 Puerto Ricans were granted U.S. citizenship in 1917 but were not allowed to elect their own governor until 1948.53 Around this time, the U.S. and Puerto Rican Governments launched Operation Bootstrap, giving tax incentives to big business on the island and increasing the commonwealth’s tourism and manufacturing industries.54 That operation ended when Congress voted to phase out the tax breaks in the 1990s.55 A decade later, Puerto Rico entered a recession that it has yet to escape.56 Today, Puerto Rico is home to some 3.4 million United States citizens who do not have representatives that can vote in Congress and who cannot vote in the general election for President of the United States.57 The island has declared bankruptcy58 and is over $70 billion in debt.59 The island’s history as an imperial holding, first by Spain and now by the United States, and the less-than-full citizenship granted to the island’s taxed and unrepresented inhabitants cannot be overlooked in an analysis of federally-funded disaster response efforts. The fact that part of Puerto Rico’s population is descended from African slaves60 and that the median household income in Puerto Rico is drastically below even the poorest state in the union61 adds elements of race and class into disaster response

50 Puerto Rico, History (Aug. 21, 2018), https://www.history.com/topics/us- states/puerto-rico-history. 51 Id. 52 Id. 53 Id. 54 Id.; see also Sullivan, supra note 43. 55 Sullivan, supra note 43. 56 Id. 57 Puerto Rico, supra note 50. 58 Id. 59 For a comprehensive overview of the Puerto Rican debt crisis, see Sullivan, supra note 43. 60 Puerto Rico, supra note 50. 61 Median Household Income (in 2017 Inflation-Adjusted Dollars), U.S. Census Bureau (2017), https://factfinder.census.gov/faces/tableservices/jsf/pages/ productview.xhtml?src=CF. The average median household income in the United States was $57,652 in 2017 whereas the median household income in Puerto Rico was $19,775. Id. Vol. 12, No. 2 Northeastern University Law Review 561 efforts that should be closely scrutinized.62

B. Puerto Rico’s Pre-Disaster Mitigation Plan As previously stated, planning and preparing for disaster is largely the onus of the local government, which is responsible for implementing disaster response plans, creating advance contracts for those specific services that are most likely to be needed in the event of a disaster, and applying to the federal government for pre- emptive funding for planning and mitigation projects. FEMA also provides resources for mitigation and disaster response planning beyond funding, including training at the local level to help implement the National Incident Management System (NIMS), a general framework created to prepare for disasters that can be scaled from the federal level down to the local level and is required by the federal government for local disaster mitigation planning.63 FEMA has regional coordinators to help implement the NIMS framework.64 Despite these resources to help enable local disaster mitigation, there is very little by way of oversight and expense tracking at the local level for pre-disaster mitigation.65 This general lack of information regarding pre-disaster planning anywhere in the Unit- ed States does not necessarily prove that the planning does not exist, it simply reveals a substantial flaw in the federal government’s efforts to promote pre-disaster mitigation: a lack of oversight.66 While Puerto Rico undoubtedly is not the only region deficient in its pre-disaster planning, it has received closer scrutiny in the aftermath of Hurricane Maria, and the reports are rather damning.67

62 See, e.g., Connor Maxwell, America’s Sordid Legacy on Race and Disaster Recovery, Ctr. for Am. Progress (Apr. 5, 2018), https://www.americanprogress. org/issues/race/news/2018/04/05/448999/americas-sordid-legacy-race- disaster-recovery/. 63 National Incident Management System Training, FEMA, https://www.fema.gov/ nims-training (last visited Feb. 16, 2020). For more information on NIMS and how it operates, see Clifford J. Villa, Law and Lawyers in the Incident Command System, 36 Seattle U.L. Rev. 1855, 1861–64 (2013). 64 Texas is located in Region VI. FEMA Regional NIMS Coordinators, FEMA, https:// www.fema.gov/fema-regional-nims-contacts (last visited Feb. 3, 2019). 65 See, e.g., Pew Charitable Trs., Natural Disaster Mitigation Spending Not Comprehensively Tracked 8 (Sept. 2018), https:// www.pewtrusts.org/en/research-and-analysis/issue-briefs/2018/09/natural- disaster-mitigation-spending--not-comprehensively-tracked; Sullivan & Schwartz, supra note 7. 66 See id. 67 See, e.g., Milken Inst. Sch. of Pub. Health, George Wash. Univ., 562 Miller

According to one report, communication was specifically an issue during and after Hurricane Maria, especially when reporting fatalities.68 Neither the Department of Public Safety in Puerto Rico nor the Central Communications Office within the Governor’s Office had written emergency communication plans.69 Further, “[a]gency emergency plans that were in place were not designed for greater than Category 1 hurricanes . . . .”70 Despite numerous strategic preparedness activities undertaken at the local level to prepare communities for disaster, when Hurricane Maria hit there was a general lack of communication personnel in place to implement those procedures, effectively negating any pre-disaster mitigation planning that had already occurred.71 This led to disparities in fatality reports, as well as “contribut[ed] to delayed information availability, gaps in information and the dissemination of inconsistent information to the public.”72 In this backdrop of chaos, confusion, and lack of communication, the infamous Whitefish contract was formed.

VI. WhiteFIshgate73 and Immediate Hurricane Maria Response The Whitefish contract in Puerto Rico after Hurricane Maria offers an effective case study on the dangers of negligent post-disaster contracting and the importance of transparency and public involvement in the planning and contracting process. PREPA is the main local power authority on the island of Puerto Rico.74 It is a publicly-held government entity tasked with overseeing the entire power grid on the island.75 It is also $9 billion

Ascertainment of the Estimated Excess Mortality from Hurricane Maria in Puerto Rico (2018), https://publichealth.gwu.edu/ sites/default/files/downloads/projects/PRstudy/Acertainment%20of%20 the%20Estimated%20Excess%20Mortality%20from%20Hurricane%20 Maria%20in%20Puerto%20Rico.pdf. 68 Id. at iv. 69 Id. 70 Id. 71 Id. 72 Id. 73 I did not coin this term. See, e.g., Jonathan Burman, The Trump Administration Wants You to Look the Other Way on Whitefishgate, Sierra Club (Oct. 27, 2017), https://www.sierraclub.org/press-releases/2017/10/trump-administration- wants-you-look-other-way-whitefishgate. 74 Javier Balmaceda, Puerto Rico’s PREPA Privatization: A Sale Too Private, Forbes (Apr. 3, 2018), https://www.forbes.com/sites/debtwire/2018/04/03/puerto- ricos-prepa-privatization-a-sale-too-private. 75 Id. Vol. 12, No. 2 Northeastern University Law Review 563 in debt and is in the process of privatizing.76 Seven of PREPA’s eight governing board members are nominated by the Governor of Puerto Rico with only a single publicly-appointed member seat, which presents ample opportunity for conflicts of interest and corruption at the local level.77 That structure was changed to include only three governor-appointed members and three independent members elected by Puerto Rico’s congress, likely in response to increased scrutiny after Hurricane Maria.78 There is one seat on PREPA’s governing board that is currently vacant.79 It is the one seat on the board for a publicly-appointed member, which the taxpayers elect democratically.80 However, an actual election would need to be held to fill the seat, and the Department of Consumer Affairs has, as of 2018, failed to conduct that election.81 As of this writing, no list of the current members of the governing board of PREPA is available to consumers. Disclosure of the decisionmakers of a public entity in charge of such a fundamental resource as electricity is imperative to ensuring transparency. Former PREPA CEO Ricardo Ramos inked the deal between PREPA and Whitefish after Hurricane Maria.82 Before the Puer- to Rico contract, Whitefish Energy was a two-year-old,83 two-man operation out of Whitefish, Montana with experience in small, rural electrical installation projects.84 They had no experience on the ground in Puerto Rico or in disaster or emergency situations.85 They were not, however, completely unfamiliar with the workings of the federal government. Questions arose when it was discovered that

76 Id.; see also P.R. Elec. Power Auth., Fiscal Plan 19 (2019), https://aeepr. com/es-pr/Documents/Exhibit-1-FiscalPlan_(PREPA)-20180801.pdf. 77 Balmaceda, supra note 74. 78 P.R. Elec. Power Auth., supra note 76, at 10, 42; Press Release, Autoridad de Energia Electrica, Senado Confirma los Tres Miembros de la Junta de Gobierno de la AEE (Mar. 25, 2019), https://aeepr.com/es-pr/Site-Noticias/ Paginas/DetallePrensa.aspx?id=12. 79 Balmaceda, supra note 74. 80 Id. 81 Id. 82 Robles & Acosta, supra note 47. 83 Richard Pérez-Peña, FEMA Cites ‘Significant Concerns’ with Puerto Rico Power Contract, N.Y. Times (Oct. 27, 2017), https://www.nytimes.com/2017/10/27/ us/whitefish-puerto-rico-electricity.html. 84 Donna Borak et al., How Whitefish Landed Puerto Rico’s $300 Million Power Contract, CNN Money (Oct. 29, 2017), https://money.cnn.com/2017/10/27/ news/economy/puerto-rico-whitefish-montana-deal/index.html. 85 Davis, supra note 44. 564 Miller then-Secretary of the Interior Ryan Zinke, who is from Whitefish, Montana and whose son had worked for the company,86 received an email request for assistance from Whitefish Energy after the contract was already signed.87 Though Zinke formally stated that he had no ties to the company, the connection with Whitefish put many government agencies on alert for possible corruption.88 At a hearing before a House of Representatives committee, PREPA stated that the only reason the utility company entered into a contract with the small, unknown, and inexperienced contractor was because “Whitefish said it would get workers to the island fast- er, with less money required up front.”89 Because the utility company was $9 billion in debt when the hurricane hit,90 it was unable to offer the significant down payments many companies require before beginning work.91 Whitefish did not request a down payment.92 Additionally, the contractor agreed to handle the logistics of finding food and lodging for its workers while on the ground.93 These concessions, which made entering the contract with Whitefish all the more enticing, ultimately enabled the company to include some questionable clauses in the contract itself. Three aspects of PREPA’s contract with Whitefish sounded alarm bells for government oversight agencies. First, the costs that Whitefish charged PREPA for hourly workers grossly exceeded industry standards and were almost 17 times greater than wages that the workers’ counterparts in Puerto Rico earned.94 That these costs were explicitly listed in the contract and were negotiated for, and agreed to, by PREPA suggests either seriously misguided decisions on the part of PREPA’s counsel, severe desperation for relief after the disaster, or corruption at some point in the contracting process. This

86 Robles & Acosta, supra note 47. 87 Id. 88 Id. 89 Alexia Fernández Campbell & Umair Irfan, Puerto Rico’s Deal with Whitefish Was Shady as Hell, New Reports Show, Vox (Nov. 15, 2017), https://www.vox.com/ policy-and-politics/2017/11/15/16648924/puerto-rico-whitefish-contract- congress-investigation. 90 See Balmaceda, supra note 74. 91 Robles & Acosta, supra note 47. 92 Borak, supra note 84. 93 Id. 94 Frances Robles, The Linemen Got $63 an Hour. The Utility Was Billed $319 an Hour., N.Y. Times (Nov. 12, 2017), https://www.nytimes.com/2017/11/12/us/ whitefish-energy-holdings-prepa-hurricane-recovery-corruption-hurricane- recovery-in-puerto-rico.html?search-input-2=the+linemen+got+63. Vol. 12, No. 2 Northeastern University Law Review 565 raises questions as to the capacity of government entities to contract during these types of emergency situations and further reinforces the need for advance contracts as part of a comprehensive pre-disaster response plan. The second abnormality in the Whitefish contract is that it contained a no-audit provision. The provision states, “In no event shall PREPA, the Commonwealth of Puerto Rico, the FEMA Ad- ministrator, the Comptroller General of the United States, or any of their authorized representatives have the right to audit or review the cost and profit elements of the labor rates specified herein.”95 This restricts the ability of the federal government to oversee and review the contract provisions to ensure that taxpayers are not being excessively charged for the services provided by the contractor. Though this no-audit provision seems to give private contractors alarming leeway in the prices they charge government entities for the services they provide, the provision is not uncommon in government contracts.96 Since the 1990’s, federal acquisition reform laws have relaxed regulations on private contracting with government agencies, and powerful lobbying groups have influenced Con- gress to uphold lax regulations specifically when it comes to “commercial item contracts” that operate similarly to the contract created between PREPA and Whitefish.97 The fact that a no-audit provision found its way into this contract illuminates the lack of oversight that the federal government has over FEMA-funded deals and the startling potential for private contracts to exploit that lack of oversight at taxpayers’ expense. The third questionable provision in the contract states, “PREPA hereby represents and warrants that FEMA has reviewed and approved of this Contract, and confirmed that this Contract is in

95 P.R. Elec. Power Auth., First Amendment to Emergency Master Service Agreement for PREPA’s Electric Grid Repairs 27 (2017) [hereinafter Whitefish Contract], https://www.nytimes.com/ interactive/2017/11/12/us/document-Whitefish-Contract-Signed-10-17. html. 96 Scott Amey, Puerto Rico Electric Contract Concerning, but Normal Project on Government Oversight (Oct. 27, 2017), http://www.pogo.org/ blog/2017/10/puerto-rico-electric-contract-concerning-but-normal.html. 97 Scott Amey, Whitefish Exposes Contracts Lacking Oversight Teeth, Project on Gov’t Oversight (Nov. 17, 2017), http://www.pogo.org/blog/2017/11/ whitefish-exposes-contracts-lacking-oversight-teeth.html?utm_ source=weekly-reader&utm_medium=email&utm_campaign=wr- 171118&utm_content=header. 566 Miller an acceptable form to qualify for funding from FEMA or other U.S. Governmental agencies.”98 FEMA officials have since released statements denying it had approved the contract.99 This blatantly false provision in the contract indicates unclean hands on both sides.100

A. Post-Maria Puerto Rico Once the contract between PREPA and Whitefish was made public, authorities began investigating the legality of the contract and how such a contract could come to fruition under the current disaster recovery system.101 Likely in response to the media’s extensive coverage of the deal and Congressional inquiries, FEMA and other governmental agencies began formal investigations.102 Within two months, PREPA had canceled the contract,103 though a provision therein required that Whitefish receive notice 30 days in advance of cancellation.104 Puerto Rico subsequently entered into other FEMA-funded contracts of an equally questionable nature. One contract, which was later canceled, was for the provision of 30 million meals.105 Only 50,000 of those meals were ever delivered to the island.106 These shortcomings indicate that, even when FEMA is involved in the vetting process, the resulting contracts can be devoid of any competitive process and are not necessarily awarded to experienced contractors. As of July 2019, FEMA awarded just over $6 billion in Public Assistance Grants to Puerto Rico in the wake of Hurricane Maria.107 Despite this substantial amount of financial assistance, it took nearly a year for power to be fully restored to the

98 Whitefish Contract, supra note 95, at 30. 99 Pérez-Peña, supra note 83. 100 Cf. 12 Joseph M. Perillo, Corbin on Contracts § 64.8 (2012) (“[Unclean hands] has been used very broadly to encompass cases where the plaintiff has been guilty of inequitable conduct such as misrepresentation and nondisclosure. The doctrine also applies to conduct bordering on illegality.” (footnotes omitted)). 101 See Davis, supra note 44. 102 Id. 103 Robles & Acosta, supra note 47. 104 Campbell & Irfan, supra note 89. 105 Patricia Mazzei & Agustin Armendariz, FEMA Contract Called for Thirty Million Meals to Puerto Rico. 50,000 Were Delivered., N.Y. Times (Feb. 6, 2018), https:// www.nytimes.com/2018/02/06/us/fema-contract-puerto-rico.html. 106 Id. 107 Puerto Rico Hurricane Maria, Fed. Emergency Mgmt. Agency, https:// www.fema.gov/disaster/4339 (last updated Dec. 6, 2017). Vol. 12, No. 2 Northeastern University Law Review 567 island.108 Puerto Rico still experiences frequent power outages109 and certain vital resources, like clinics and hospitals, are still in nearly complete disrepair.110 The 2017 hurricane season was unprecedented and the rebuilding process is long and costly, but as one of the wealthiest countries in the world, the United States must take de- cisive action to prepare and protect its citizens for this new normal.

VII. Ideas for Change The disaster response efforts in Puerto Rico and the White- fish contract created in the immediate aftermath of Hurricane Maria provide a useful case study for examining the shortcomings in the nation’s current disaster planning apparatus. To be sure, the potentially devastating lack of pre-disaster planning and effective disaster response is not unique to Puerto Rico, and ineffective planning will cause further loss of life in future disasters across the country. It is essential that we move towards a framework that will better protect people on the ground both during and after natural disaster. As demonstrated above, the current system is grossly inadequate for addressing the reality that disasters will continue to increase in both number and severity, and taxpayers will continue to suffer the double injustice of increased danger and inefficient use of government funds under the current system. I will now provide snapshots of various ideas for improvements to our current system, some more plausible than others. This is an effort to instigate conversations and further research in the hope that one day this destructive cycle can be broken.

A. Reforming the Stafford Act The Stafford Act was originally passed in 1988,111 before the threat of more numerous and more destructive natural disasters was the reality. As such, there are a number of shortcomings in the Act

108 Frances Robles, Puerto Rico Spent 11 Months Turning the Power Back On. They Finally Got to Her., N.Y. Times (Aug. 14, 2018), https://www.nytimes. com/2018/08/14/us/puerto-rico-electricity-power.html?module=inline. 109 See, e.g., Can Solar Energy Solve Puerto Rico’s Energy Crisis? WNYC Studios: The Takeaway (Jan. 13, 2020), https://www.wnycstudios.org/podcasts/ takeaway/segments/earthquake-puerto-rico-solar-energy. 110 Patricia Mazzei, Hunger and an ‘Abandoned’ Hospital: Puerto Rico Waits as Washington Bickers, N.Y. Times (Apr. 7, 2019), https://www.nytimes.com/2019/04/07/ us/puerto-rico-trump-vieques.html?. 111 About the Agency, Fed. Emergency Mgmt. Agency, https://www.fema. gov/about-agency (last updated June 3, 2019). 568 Miller that need to be modernized. In October 2018, the Disaster Recov- ery Reform Act of 2018 (the “2018 Reform Act”) became law.112 It amended parts of the Stafford Act and was passed largely in response to the 2017 hurricane season.113 The 2018 Reform Act resolved some of the most glaring issues with the Stafford Act, but falls short of providing changes that are effective in the long term. Hurricane Maria hit before the 2018 Reform Act passed, so the recovery efforts there were stymied by the shortcomings of the original Stafford Act. The 2018 Reform Act gave near complete discretion to the executive branch to facilitate the response.114 As originally drafted, the Stafford Act grants the government near total immunity from litigation after disaster response.115 The only possible recourse for individuals who believe they have been harmed by the action (or inaction) of the President or FEMA after a natural disaster is to sue the agency itself for due process or other constitutional claims.116 Mounting constitutional claims against a federal agency is an uphill battle because courts tend to pay a high level of deference to agencies’ discretionary decision making.117 This fact was not addressed in the 2018 Reform Act. On the heels of the Whitefish contract and perhaps in direct response to one of the contract’s glaring issues, the 2018 Reform Act specifically prohibits the use of “no audit” clauses in contracts by barring the use of federal funds to reimburse “any activities made pursuant to a contract entered into after August 1, 2017, that prohibits the Administrator or the Comptroller General of the United States from auditing or otherwise reviewing all aspects relating to

112 Disaster Recovery Reform Act of 2018 Transforms Field of Emergency Management, FEMA (Oct. 5, 2018), https://www.fema.gov/news- release/2018/10/05/disaster-recovery-reform-act-2018-transforms-field- emergency-management. 113 Id. 114 See, e.g., 42 U.S.C. § 5174 (2012). 115 42 U.S.C. § 5148 (2012). 116 See, e.g., McWaters v. FEMA, 408 F. Supp. 2d 802 (E.D. La. 2006); Connolly v. Long Island Power Auth., 94 N.E.3d 471 (N.Y. 2018). For example, a plaintiff may overcome a defense of governmental immunity by demonstrating that the challenged government actions were proprietary and gave rise to a “special duty” that would support a negligence claim. 117 Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). Note, however, that recent decisions have limited Chevron’s reach. United States v. Mead Corp., 533 U.S. 218 (2001) (limiting Chevron deference to agency decisions that have the force of law). Vol. 12, No. 2 Northeastern University Law Review 569 the contract.”118 This will hopefully incentivize governmental entities to develop contracts that are more transparent and might deter the type of no-bid, haphazard contracting seen in Puerto Rico after Hurricane Maria. The Stafford Act has a provision specifically promoting the use of local contractors and businesses in the hazard mitigation and rebuilding process.119 This is important for the regrowth of the local economy in a disaster-hit area.120 It is also helpful to employ local people to ensure that the needs of the community are being communicated and met, since local businesses likely have a better understanding of the terrain and the various factors that go into rebuilding their own community. Despite this provision, 90% of federal contracts in the rebuilding of Puerto Rico were awarded to companies that are not based or headquartered in Puerto Rico.121 Clearly the provision is well-intentioned but lacks the teeth necessary to enforce any real local investment. Proof of the provision’s shortcomings is demonstrated by Congress passing a separate Act, the Puerto Rico Small Business Contracting Assistance Act of 2018 (the “PRSBCA”) that specifically incentivizes governmental agencies to award contracts to Puerto Rican businesses over their out-of-state counterparts.122 It also gives incentives to contractors who subcontract with Puerto Rican businesses as “Protege Firms” to provide training for disaster recovery.123 This Act would not be necessary if the Stafford Act, as it currently stands, adequately ensured that future disaster contracts go largely to businesses in the affected

118 2018 Reform Act, supra note 112, § 1225. 119 42 U.S.C. § 5150(a)(1) (2012) (“[P]reference shall be given, to the extent feasible and practicable, to those organizations, firms, and individuals residing or doing business primarily in the area affected by such major disaster or emergency.”). 120 Nicole Acevedo, Most Federal Contracts for Puerto Rico Recovery Go to U.S.-Based, Not Local Companies, NBC (Sept. 26, 2018), https://www.nbcnews.com/ storyline/puerto-rico-crisis/most-federal-contracts-puerto-rico-recovery-go- u-s-based-n913401. 121 Id. This statistic was almost identical in post-Katrina reconstruction efforts (89% of contracts went to out-of-state businesses), signaling a pervasive issue of sending recovery dollars to companies outside of the disaster zone. Deepak Lamba-Nieves & Raúl Santiago Bartolomei, Ctr. for a New Econ., Transforming the Recovery into Locally-Led Growth 11 (2018), http://grupocne.org/wp-content/uploads/2018/09/ Federal_Contracts_FINAL_withcover-1.pdf. 122 H.R. 5178, 115th Cong. (2018). 123 Id. § 5. 570 Miller areas. While the Puerto Rico Small Businesses Act may be helpful in promoting small businesses in their post-Maria recovery efforts, nothing in the 2018 Reform Act gave the local business provision the kind of enforcement power necessary for its effective future implementation throughout the country. An additional shortcoming of the Stafford Act was the provision which required that federal funds only be used to restore infrastructure to its pre-disaster state, even if that infrastructure was already fragile and failing.124 It specifically barred the use of federal funds to improve infrastructure beyond the state it was in when the disaster hit,125 a severely shortsighted provision meant to save money in the short term. In the 2018 Reform Act, this language was amended,126 likely in direct response to the nearly inoperable conditions of the Puerto Rican power grid before Hurricane Maria hit the island. What good would federal dollars do if they went to repair vital infrastructure only to a point of near inoperability? To address this shortcoming, the 2018 Reform Act amended section 404(a) of the Stafford Act (codified as 42 U.S.C. 5170(c)) to require that federal funding allocated for repairs to infrastructure be used to rebuild pursuant to the latest codes and “incorporate the latest hazard-resistant designs . . . in a manner that allows the facility to meet the definition of resilient developed pursuant to this subsection.”127 The 2018 Reform Act makes “resiliency” a central tenet of disaster mitigation and rebuilding, ensuring these efforts are made with an eye towards long-term stability in the face of increasing natural disasters. However, despite this forward-thinking change to the Stafford Act, the 2018 Reform Act does not actually define the word “resilience.” It leaves the creation of that definition in the hands of the FEMA administrator, to be communicated within 18 months of the passage of the Act.128 FEMA has incorporated this push for

124 42 U.S.C. § 5172(e)(1)(A) (2012) (“[T]he President shall estimate the eligible cost of repairing, restoring, reconstructing, or replacing a public facility or private nonprofit facility . . . on the basis of the design of the facility as the facility existed immediately before the major disaster.”). 125 Campbell & Irfan, supra note 89. 126 2018 Reform Act, supra note 112, § 1235(b). 127 Id. § 1235. 128 Id. § 1235(d) (“Not later than 18 months after the date of enactment of this paragraph, the President, acting through the Administrator of the Federal Emergency Management Agency, and in consultation with the heads of relevant Federal departments and agencies, shall issue a final rulemaking that defines the terms ‘resilient’ and ‘resiliency’ for purposes of this subsection.”). Vol. 12, No. 2 Northeastern University Law Review 571 resilience in its 2018–2022 Strategic Plan, listing “[a] prepared and resilient nation” as its vision and building resiliency into its first goal for the coming years.129 Clearly, FEMA is aware of at least some of the above-mentioned shortcomings to the current disaster mitigation framework. Whether it is able to sufficiently implement its ambitious resiliency plans will be tested by future disasters. Despite these recent reforms to the Stafford Act, a number of shortcomings remain, and it is likely that relief efforts after future storms will continue to be costly and ineffective. This makes local disaster mitigation plans, implemented long before a natural disaster occurs, all the more vital to the rebuilding process and long-term infrastructure stability.

B. Strengthening Pre-Disaster Mitigation There is no shortage of expertise in pre-disaster planning within FEMA and many local communities. At the very least there is extensive information regarding how to apply for and manage pre-disaster grants on FEMA’s website130 such that in theory any municipality would be able to access the information and create informed disaster plans. This, of course, requires that communities have the resources to put towards disaster preparedness training, which requires time and personnel with expertise in the area. Ad- ditionally, much of the necessary changes for creating communities that can withstand Category 4 hurricanes require extensive rebuilding of infrastructure and a reworking of local codes to encourage disaster-resilient building. This takes time and, most importantly, a lot of money.

1. Pre-disaster mitigation projects require increased funding Every dollar invested in pre-disaster mitigation saves four dollars in post-disaster rebuilding.131 The 2017 hurricane season did

129 FEMA, 2018–2022 Strategic Plan 4, 11 (2018), https://www.fema.gov/ media-library-data/1533052524696-b5137201a4614ade5e0129ef01cbf661/ strat_plan.pdf [hereinafter 2018–2022 Strategic Plan]. 130 Grants, FEMA, https://www.fema.gov/grants (last updated Feb. 18, 2020). 131 FEMA, Natural Hazard Mitigation Saves (2018), https://www.fema. gov/media-library/assets/documents/156979. FEMA’s most recent Strategic Plan, however, states that one dollar in pre-mitigation spending saves up to six dollars in post-disaster rebuilding, so estimates vary. Id.; see also 2018– 2022 Strategic Plan, supra note 129, at 13. 572 Miller an estimated $265 billion in damage in total.132 Taking that one-to- four ratio and applying it to the 2017 hurricane season, the communities hit by those storms would have had to invest $66.25 billion collectively to avoid the damages inflicted.133 This is, of course, an imperfect science and there is no way to calculate exactly how much a community would need to spend to avoid damages. Additionally, it is impossible to plan for and avoid all possible damage that can occur during a hurricane. It is, however, effective in illustrating the larger point: as of February 2019, FEMA provided a total of nearly $91 billion in Public Assistance Grant Program funds since the creation of the grant program in 1989.134 Over its 30-year history, that is an average of about $2.8 billion per year in disaster funding as compared to the $265 billion in damage done in one (albeit extraordinary) year alone. What’s worse, for FEMA’s Pre-Disaster Mitigation Grant Pro- gram, for which states can apply ahead of time in order to mitigate against future disasters, a mere $100 million was appropriated for fiscal year 2017.135 This is a laughable sum when compared to the $66.25 billion communities would have had to invest to avoid the damages caused by the 2017 hurricane season, according to the government’s own figures.136 The crux of the problem with the United States’ pre-disaster planning scheme is not a lack of knowledge or skill, but a dramatic lack of funding.

2. Emerging technologies can streamline pre-disaster planning Localities and the federal government could use tax dollars more wisely by employing emerging technologies to improve communication, data collection, and information dissemination. Having technological systems in place to predict the severity of natural disasters and respond quickly before they hit could save lives and re-

132 2017 Disaster Contracting, supra note 1, at 1. 133 If one dollar in pre-disaster mitigation saves four dollars in post-disaster rebuilding, then arguably $66.25 billion in pre-disaster mitigation investment would have saved the $265 billion worth of damage caused by the 2017 hurricane season. 134 FEMA provides an online spreadsheet of all Public Assistance Grants awarded. See OpenFEMA Dataset, FEMA, https://www.fema.gov/openfema-dataset- public-assistance-funded-projects-details-v1 (last updated Feb. 4, 2020) (expand the “Full Data” section; then select one of three links to download the dataset). 135 Pre-Disaster Mitigation Program FY 2017 Subapplication Status, supra note 26. 136 FEMA, supra note 131. Vol. 12, No. 2 Northeastern University Law Review 573 sources. Localities are already using new technology to respond when disaster strikes. Companies have developed programs that aggregate data about the city infrastructure, location of resources, and location of people (through social media) to determine where the greatest potential loss of life may be and direct emergency services to specific areas.137 Drones are used both in the air and under water to determine the extent of the damage and possible dangers before sending emergency rescue crews into the fray.138 These technologies help save lives after a disaster occurs. Before disaster strikes, however, governments at all levels should have extensive technological infrastructure in place for rapid response, especially in the face of increased occurrences of natural disasters that can hit in rapid suc- cession. As discussed above, the federal government established the National Incident Management System (NIMS) as a means for disaster response as early as the 1970s.139 With developing technologies, there is no reason why this system cannot be automated into a user-friendly application for computers, phones, and tablets that can be used for communication, information dissemination, data collection, and deployment of resources when disaster strikes.140 Again, expertise in disaster response is not lacking. Rather, it is the lack of funding and effective disaster response planning and implementation that causes the greatest damage and loss of life during and after disaster. A program that facilitates communication and access to information, including everything from chain of command and procedure to examples of pre-disaster contracts and success stories from other regions, could facilitate both the rapid response and the pre-disaster planning of otherwise isolated localities. A simple grant program specifically dedicated to awarding grants for disaster preparedness technology development could effectively incentivize the creation of these technologies. The promise of technology for the implementation of disas-

137 Trevor Nace, How Technology is Advancing Emergency Response and Survival During Natural Disasters, Forbes (Dec. 15, 2017), https://www.forbes.com/sites/ trevornace/2017/12/15/how-technology-is-advancing-emergency-response- and-survival-during-natural-disasters/#27c18dad9cc8. 138 Id. 139 See supra Part V.b. 140 A review of the available technologies indicates that the necessary innovation exists to create comprehensive, accessible disaster response technology. What is lacking is political will and funding. Nace, supra note 137. 574 Miller ter planning and response is tempered by the reality that not all of the United States has reliable internet access, especially after natural disasters.141 Additionally, using the technology would depend upon localities having access to resources like computers, not to mention emerging technologies like disaster-response drones. Along with investment in technology for disaster preparedness, there needs to be a concerted effort to ensure higher resiliency for basic internet access and infrastructure that can withstand various and stronger natural disasters.

C. Taxation Most natural disasters are geographically localized; therefore, disaster planning and response must be tailored to fit the needs of the affected region. But the nature of the problem is national. The federal government should still fund and incentivize response efforts and, in doing so, collaborate with localities to avoid- cook ie-cutter solutions. The federal government is better positioned to fund and implement disaster preparedness because it has greater access to resources. With the 2017 hurricane season as a stark example, the disparity in wealth and resources at the local level has a substantial impact on the destruction and loss of life. The federal government is better positioned to distribute access to disaster preparedness resources across regions to ensure that income level does not determine likelihood of survival during a natural disaster. Increased and more intense natural disasters will continue to occur across the United States, from wildfires in California to flooding in the Great Plains to hurricanes on the coast. This poses dire threats to U.S. national security, the functioning of interstate commerce, and the resilience of entire swaths of the country. As such, it is the federal government that is not only better positioned to handle, but also highly concerned with, the risks inherent in increased natural disasters. To be sure, localities should still have control and oversight in the implementation of disaster preparation and response, but the federal government is better positioned to fund and provide expertise to those disaster preparations. One way the government can fund disaster preparation initiatives is through various changes to the tax code. An exhaustive

141 See, e.g., Nick Thieme, After Hurricane Maria, Puerto Rico’s Internet Problems Go from Bad to Worse, PBS (Oct. 23, 2018), https://www.pbs.org/wgbh/nova/ article/puerto-rico-hurricane-maria-internet/. Vol. 12, No. 2 Northeastern University Law Review 575 overview of the ways the tax code affects disaster mitigation is beyond the scope of this Note, but it is helpful to consider the possibility that changes to the tax code may be effective in generating the funds necessary to create a comprehensive, realistic pre-disaster mitigation plan. The pros and cons of carbon taxes already have deep scholarship.142 As stated above, CO2 emissions have been directly linked to climate change and increased instances of natural disasters.143 Science is beginning to link specific disastersto increased levels of CO2.144 As such, it may be easier in the future to link carbon emissions to hurricanes like Maria. Consequently, it may be easier to hold large CO2 emitters responsible for the natural disasters directly linked to the emitters’ polluting activity. Creating a carbon tax, the revenue of which would go directly to federal programs like FEMA to help communities build resilience before disaster strikes, may be the most viable solution to curbing the dramatic destruction occurring in America’s most vulnerable communities. Two basic forms of carbon tax have become popular proposed policies: (1) a cap and trade model, and (2) placing a price on actual CO2 emissions.145 A cap and trade plan gives polluters an allotment of CO2 emissions and creates a market for those polluters to then sell their unused allotment to other polluters.146 Comparing the effectiveness of carbon tax versus cap and trade programs is difficult as each is tailored to local needs.147 There is a general consensus, however, that a carbon tax of some sort is an essential element of a larger climate policy framework.148 A straightforward carbon tax would place the onus on the largest polluters to aggressively reduce their CO2 output to avoid the tax. It would also place the responsibility for the pollution squarely on the shoulders of the largest polluters, instead of allowing them to use their capital to purchase more carbon shares and continue polluting. Another source of tax revenue which should be redirected

142 See, e.g., Michael L. Marlow, The Perils of a Carbon Tax, Reg. Mag., Winter 2018–19, at 28, https://www.cato.org/sites/cato.org/files/serials/files/ regulation/2018/12/regulation-v41n4-6_0.pdf. 143 Harvey, supra note 8 and accompanying text. 144 See id. at 3. 145 Stephen Leahy, Here’s What You Need to Know About Carbon Pricing, PRI (Sept. 23, 2018), https://www.pri.org/stories/2018-09-23/heres-what-you-need- know-about-carbon-pricing. 146 Id. 147 Id. 148 Id. 576 Miller towards disaster mitigation spending is the Department of Defense budget. The 2019 national security budget proposal sent to Con- gress in February 2018 requested a total of $716 billion to fund the National Defense Strategy.149 That funding must meet a number of different demands, from shipbuilding to space investments to providing for military families,150 and is essential to the functioning of the United States. Also essential to our national safety and security, however, is funding pre-disaster mitigation projects so that communities can protect themselves from the onslaught of natural disasters threatening our borders. Even the Department of Defense has identified national disasters as a “very real issue” that could pose a major threat to national security.151 Rebuilding and reinforcing infrastructure throughout the United States should be a major focus of Department of Defense spending to ensure that our national security is not compromised by the certain increase in frequency and severity of natural disasters.

D. Insurance The idea of creating insurance pools to help nations mitigate risk and future expense in the event of catastrophe is not new.152 The expense of natural disasters is generally borne by local communities and the government. Insurance for natural disasters provides a source of risk transfer while insurance premiums give mitigation incentive.153 Unfortunately, the large scale of insuring against natural disasters does not transfer well to traditional forms of private insurance, such as automobile insurance.154 The intricacies of the catastrophe insurance industry are beyond the scope of this Note, but a case study provides insight into the possibilities and pitfalls presented by using insurance as a means for mitigating against the

149 DoD Releases Fiscal Year 2019 Budget Proposal, U.S. Dep’t. Def. (Feb. 12, 2018), https://dod.defense.gov/News/News-Releases/News-Release-View/ Article/1438798/dod-releases-fiscal-year-2019-budget-proposal/. 150 Id. 151 How Natural Disasters Make Major Cities Vulnerable To National Security Threats, NPR (Sept. 10, 2017), https://www.npr.org/2017/09/10/549989643/how- natural-disasters-make-major-cities-vulnerable-to-national-security-threats. 152 See, e.g., Dwight Jaffee & Thomas Russell, Financing Catastrophe Insurance: A New Proposal, in Risking House and Home: Disasters, Cities, Public Policy 37 (John M. Quigley & Larry A. Rosenthal, eds., 2008). 153 Dwight M. Jaffee, Conference on Catastrophic Risks and Insurance, Report on the Role of Government in the Coverage of Terrorism Risks (Nov. 22–23, 2004). 154 Id. at 6. Vol. 12, No. 2 Northeastern University Law Review 577 risks inherent in climate change. The Caribbean Catastrophe Risk Insurance Facility (CCRIF) was created after the 2004 hurricane season in response to the in- tractable vulnerabilities experienced by Caribbean countries, both financially and geographically.155 The organization is a collective of 19 Caribbean countries and two Central American countries meant to insure against future disasters.156 It acts as a mutual insurance company controlled by the collaborating governments and allows each country to purchase catastrophe insurance at lower costs than if each individual country saved disaster reserves themselves.157 In practice, the CCRIF is a pool of capital financed by the countries themselves and donor partners from which countries can purchase insurance plans.158 The CCRIF was created with the understanding that natural disasters like hurricanes typically only affect a few Caribbean countries per season, if at all. Thus, a collective fund available to all Ca- ribbean countries could, in theory, more easily withstand the financial burden of hurricane seasons than each individual country could on its own.159 CCRIF also allows for the purchase of microinsurance on the individual level so citizens of member countries can protect their property and land from disaster.160 The collective also funded a study on the economic impact of insurance and pre-disaster mitigation within the Caribbean.161 The CCRIF offers a promising model for collaboration in the face of increasing risk to help transfer the losses experienced in the wake of natural disasters. A similar model may be viable between localities or states within the U.S.; however, insurance only solves one small piece of the larger disaster mitigation puzzle. Insurance

155 Francis Ghesquiere et al., Caribbean Catastrophe Risk Insurance Facility, World Bank, http://siteresources.worldbank.org/PROJECTS/Resources/ Catastrophicriskinsurancefacility.pdf (last visited Mar. 11, 2020). 156 CCRIF Expands Membership in Central America – Welcomes Panama, Caribbean Catastrophic Risk Facility (Jan. 7, 2019), https://www.ccrif.org/news/ ccrif-expands-membership-central-america-welcomes-panama. 157 Ghesquiere, supra note 155, at 2. 158 Id. 159 Id. 160 Climate Risk Adaptation and Insurance in the Caribbean Project, Caribbean Catastrophic Risk Facility, https://www.ccrif.org/projects/crai/ climate-risk-adaptation-insurance (last visited Mar. 11, 2020). 161 Economics of Climate Adaptations, Caribbean Catastrophic Risk Facility, https://www.ccrif.org/projects/eca/eca-economics-climate-adaptation (last visited Mar. 11, 2020). 578 Miller payouts after disaster strikes will not mitigate against the loss of life during disaster. It does not solve the cyclical nature of destruction and rebuilding caused by insufficient pre-disaster planning and mitigation. As disasters become more frequent, certain areas of the United States will become less insurable, meaning the risk of insuring a place like coastal Alaska or parts of Florida that are literally sinking beneath the ocean162 would preclude any insurance availability to begin with, and traditional insurance models would become unfeasible.163 Localities should consider establishing an insurance collective like the CCRIF in an effort to spread the cost of risk, especially across locations with disparate socioeconomic levels. Doing so would not solve the problem of pre-disaster mitigation and planning, but it would be a small step towards more equitable disaster resilience.

E. Decentralized Ownership Clearly, Puerto Rico’s current power infrastructure is not sufficiently serving its customers.164 When something does not work, sometimes the best solution is to replace it. Local residents and sustainable energy organizations have promoted the use of microgrids to create community-owned power facilities.165 Microgrids are small-scale electric grids, often powered by renewable energy sources like windmills or solar panels.166 Localized ownership puts the maintenance and operation in the hands of communities which could more effectively manage and distribute the power, creating jobs in the process. The cost of something like a bank of solar panels may be prohibitively expensive for individuals in Puerto Rico where

162 See, e.g., Amy Martin, An Alaskan Village is Falling Into the Sea. Washington is Looking the Other Way, PRI (Oct. 22, 2018), https://www.pri.org/stories/2018-10-22/ alaskan-village-falling-sea-washington-looking-other-way; Kevin Loria, Miami is Racing Against Time to Keep Up with Sea-Level Rise, Bus. Insider (Apr. 12, 2018), https://www.businessinsider.com/iami-floods-sea-level-rise- solutions-2018-4. 163 Disaster Risk Insurance: What are the Pros, Cons, and Risks?, U.N. Development Project (last accessed Mar. 3, 2019), http://www.sdfinance.undp.org/content/ sdfinance/en/home/solutions/disaster-risk-insurance.html#mst-3. 164 See supra Part V.c. 165 Larry Greenemeier & Louis Dzierzak, As Electricity Returns to Puerto Rico, Its People Want More Power, Sci. Am. (July 10, 2018), https://www.scientificamerican. com/article/as-electricity-returns-to-puerto-rico-its-people-want-more- power/. 166 See, e.g., Allison Lantero, How Microgrids Work, U.S. Dep’t Energy (June 17, 2014), https://www.energy.gov/articles/how-microgrids-work. Vol. 12, No. 2 Northeastern University Law Review 579 the average annual income is $20,000, so the government would likely need to establish a way for localities to secure financing to purchase microgrids.167 Puerto Rico took a first step in this direction when it legalized the use of microgrids, opening a path for individual communities to generate their own power and no longer depend on the island’s ailing electrical infrastructure.168 The updates to the Stafford Act, discussed above, would also allow the use of FEMA funding to rebuild using new, renewable sources of energy at a local level.169 Efforts to bring solar microgrids to Puerto Rico have thus far been largely unsuccessful.170 Tesla endeavored to bring power to the entire island using renewable energy, but the solar panels it has installed have repeatedly fallen into disrepair due to a lack of on-the- ground training and proper maintenance.171 The failure of the project to deliver lasting improvements highlights the pitfalls of depending on private industry to create the infrastructure needed to sustain- ably rebuild after disaster. Private and non-profit initiatives to bring microgrids into local communities often lack funding to create local jobs to maintain microgrids in the long term.172 Unless strategic planning is in place to ensure the long-term health of infrastructure, the creation of locally run microgrids will result in little actual benefit to communities. Microgrids are one more small piece of the larger disaster mitigation puzzle, but if properly implemented they could be a viable solution to the costly rebuilding efforts that will give more autonomy to communities in their own resilience efforts.

VIII. Conclusion The foregoing analysis reveals that there is no single solution to the issue of pre-disaster mitigation. Stronger laws must be drafted to incentivize the creation of local disaster mitigation plans and transparent contracting before and during disaster. Extensive funding is needed to build up the infrastructure and disaster mit-

167 Greenemeier, supra note 165. 168 Id. 169 See supra Part VI.a. 170 See, e.g., Alexander C. Kaufman, On Puerto Rico’s ‘Forgotten Island,’ Tesla’s Busted Solar Panels Tell a Cautionary Tale, Huffington Post (May 11, 2019), https:// www.huffpost.com/entry/elon-musk-tesla-puerto-rico-renewable-energy_n_ 5ca51e99e4b082d775dfec35. 171 Id. 172 Id. 580 Miller igation plans that will create long-term resiliency in the face of a changing climate. Taxes could be used to fund this effort. Collective insurance programs may help to alleviate the risks associated with increased instances of natural disasters. Local buy-in in the form of microgrids and small-scale utility ownership may be viable solutions to the larger infrastructure problems plaguing many communities in the United States and could put the power quite literally back in the hands of communities most affected by climate change. The most glaring common thread through all these solutions, and the problem at large, is a lack of funding which prohibits any comprehensive efforts to break the current cycle of disaster and rebuilding. Ultimately, if nothing is done to change the status quo, we leave our country and its most disenfranchised populations vulnerable to certain destruction. Vol. 12, No. 2 Northeastern University Law Review 581

Kisor v. Wilkie: Auer Deference is Alive but Not So Well. Is Chevron Next?

By Matthew A. Melone*

* Professor of Law, Lehigh University, Bethlehem, PA. 582 Melone

Table of Contents I. Deference to Statutory Interpretation by Agencies: Chevron & State Farm �� 585 A. Background �� 585 1. Criticisms �� 589 2. Extraordinary Cases �� 591 B. The State Farm Doctrine �� 596 II. Deference to Regulatory Interpretations by Agencies: Seminole Rock & Auer �� 602 A. Seminole Rock & Auer �� 603 1. Criticisms �� 607 III. Kisor: The Future of Auer & Chevron �� 610 A. Kisor �� 610 B. Is Auer Viable and Should it be? �� 621 C. Et Tu Chevron? ��627 Conclusion ��628 Vol. 12, No. 2 Northeastern University Law Review 583

On June 26, 2019, the Supreme Court decided Kisor v. Wilk- ie, a case that provided the Court with the opportunity to examine long standing precedents—first set forth in Bowles v. Seminole Rock & Sand Co. and later in Auer v. Robbins—concerning the deference due by the courts to agencies’ interpretations of their own regulations.1 The Court acted with unanimity in reversing a Federal Circuit decision that applied a deferential standard of review to the Department of Veteran’s Affairs’ interpretation of a regulation and remanding the case back to the lower court.2 However, the Court was fractured with respect to whether a deferential standard of review for agencies’ interpretations of their own regulations is ever warranted. Five justices decided that such deference is appropriate in certain circumstances and, therefore, that Auer should not be overturned.3 Four justices, however, would have eliminated any deferential standard of review for agency regulatory interpretations.4 Accordingly, while Auer deference remains alive, it is not so well. Auer deference shares a number of its justifications with its better-known sister doctrine, Chevron deference. Chevron sets forth the circumstances in which judicial deference is accorded to agency interpretations of their own organic statutes and is a seminal case in administrative law.5 Since the Auer and Chevron doctrines have a lot in common, the uncertain future of Auer raises questions about whether Chevron’s future is similarly uncertain. Because the Chevron doctrine is widely known and has been the subject of much scholarly attention, Part I of this article discusses Chevron, its justifications, and the criticisms to which it has been subject. This article’s discussion of Chevron comes prior to its discussion of Auer deference in order to provide a basis for comparison in its analysis of Auer deference. This section also discusses the State Farm doctrine, which is of similar vintage as Chevron. That doctrine is designed to ensure that agencies respond appropriately to constituent concerns and provide justification for their regulatory choices.6 As a result, Chevron deference may not sustain agency regulations if the regulatory choices encompassed therein, reasonable as they may be, have not been properly justified. State Farm, therefore, provides a check on the latitude

1 Kisor v. Wilkie, 138 S. Ct. 2400 (2019). 2 See generally id. 3 See id. at 2418. 4 Id. at 2425 (Gorsuch, J., concurring). 5 See infra notes 22–25 and accompanying text. 6 See infra note 91 and accompanying text. 584 Melone that Chevron otherwise provides to agencies. Part II discusses Auer deference, its justifications, and its drawbacks. Auer deference was spawned in a case that predated Chev- ron by four decades, Seminole Rock.7 Ironically, Auer and Seminole Rock, the foundational cases for the deference they espoused, were both seemingly decided without the courts deferring to the agencies’ interpretations of the regulations in question.8 In many respects, Auer is subject to criticisms similar to those leveled at Chevron and is supported by similar justifications as those put forth to supportChevron . However, the two types of deference are not identical; therefore, Part II also explains why Auer deference rests on a weaker doctrinal foundation than Chevron deference. Part III analyzes the Supreme Court’s decision and reasoning in Kisor and explores what Kisor means for the future of Auer and Chevron. Though the Court has let Auer live another day, it is unclear just what sort of life it will have. Arguably, Auer is now a shell of itself and resembles the standard employed in the Chevron “extraordinary cases” or, alternatively, pre-Chevron standards of review which (according to Justice Scalia) offered no deference at all. Finally, this part addresses what, if anything, Kisor augurs for Chevron deference. The Chief Justice and Justices Kavanaugh and Alito made the effort to point out that Kisor did not speak to Chevron deference.9 However, Justice Gorsuch’s concurrence took Auer deference to task on the grounds that such deference violates both the judicial review provisions and notice and comment requirements of the Administrative Procedure Act (APA).10 Four justices agreed with Justice Gorsuch on this point, and the Chief Justice did not make his opinion known on this issue.11 Justice Gorsuch’s objection to Auer deference on the grounds that it violates the judicial review provisions of the APA appears to apply to Chevron deference as well. If it does, the Chief Jus- tice’s vote may determine whether Chevron deference has a lengthy shelf-life as a staple of administrative law.

I. Deference to Statutory Interpretation by Agencies:

7 See Ronald A. Cass, Auer Deference: Doubling Down on Delegation’s Defects, 87 Fordham L. Rev. 531, 547–50 (2018). 8 See Auer v. Robbins, 519 U.S. 452, 461–62 (1991); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 415–17 (1945). 9 Kisor,139 S. Ct. at 2425 (Roberts, C.J., concurring); id. at 2449 (Kavanaugh, J., concurring). 10 Id. at 2432–35 (Gorsuch, J., concurring) 11 Id. at 2425 (Gorsuch, J., concurring). Vol. 12, No. 2 Northeastern University Law Review 585

Chevron & State Farm The Chevron doctrine sets forth the circumstances in which judicial deference is accorded to agency interpretations of their own organic statutes and has been a bedrock principle of administrative law for quite some time.12 Its sister doctrine, first set forth in Sem- inole Rock and later in Auer, determines the circumstances in which courts afford judicial deference to an agency’s interpretation of its own regulations and is less well-known, despite predating Chevron by several decades.13 Judicial deference to agency interpretations of statutes and agency interpretations of their own regulations share common underpinnings. Moreover, both forms of deference are subject to similar criticisms. However, despite their common underpinnings, the doctrines are not identical. Because the Chevron doctrine is widely known and has been the subject of much scholarly attention, this section discusses this doctrine, its justifications, and the criticisms to which it has been subject. This discussion takes place prior to that of Auer deference in order to provide a basis of comparison for the article’s ultimate analysis of Auer deference. This section also discusses the State Farm doctrine, which is of similar vintage as Chev- ron. This doctrine is designed to ensure that agencies respond appropriately to constituent concerns and provide justification for their regulatory choices.14 As a result, Chevron deference may not sustain agency regulations if the regulatory choices encompassed therein, reasonable though they may be, have not been properly justified. State Farm, therefore, provides a check on the latitude that Chevron otherwise provides to agencies.

A. Background Deference by courts to agency action existed long before the Chevron decision. Prior to Chevron, whatever deference the courts granted to administrative agencies was rooted in common-law canons of statutory construction or in peculiarities inherent in the cause of action, most notably the writ of mandamus.15 Moreover, the courts

12 See infra notes 22–25. 13 See infra notes 103–16; see also Daniel E. Walters, Opinion, A Turning Point in the Deference Wars, Reg. Review (July 9, 2019), https://www.theregreview. org/2019/07/09/walters-turning-point-deference-wars/. 14 See infra note 91 and accompanying text. 15 For example, courts interpreted the meaning of a statute according to the meaning of its terms at the time of enactment and on the customary interpretation of its terms. See Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 YALE L.J. 908, 930–31 (2017). Judges deferred 586 Melone tended to distinguish between questions of fact and questions of law, deferring to agencies only in cases that implicated the former.16 The rise of the administrative state during the New Deal era resulted in a few cases in which the Court signaled what was to come later under Chevron. In Gray v. Powell, the Court refused to question the De- partment of Interior’s interpretation of a statutory term set forth in the Bituminous Coal Act of 1937 because it reasoned that Congress delegated interpretive authority to a more informed and experienced body.17 A few years later, the Court in NLRB. v. Hearst Publications, Inc. similarly justified the deference that it accorded the National Labor Relations Board on the basis of the Board’s expertise.18 In Skidmore v. Swift & Co., the Court held that the level of deference that an agency’s action warrants depends upon the thoroughness of the agency’s deliberations, the validity of its reasoning, its consistency with earlier and later pronouncements, and other factors which provide the agency with the power to persuade—a standard thought by Justice Scalia to offer no deference at all.19 Even after the enactment of the APA in 1946, and despite its seeming aversion to judicial deference to agency action, courts applied inconsistent standards in reviewing agency action.20 Though by 1979 Skidmore deference had been in existence for decades, that year the Court applied another multi-factor test—the so-called Nation- al Muffler test—to determine whether Treasury regulations issued under the general authority of I.R.C. § 7805(a) were a permissible interpretation of that statute.21 The Chevron doctrine, whatever its

to executive officials because those officials applied the accepted canons of statutory construction and not because they were executive officials. See id. at 943–44. Judges did invoke a very deferential standard of review for executive action when the case was brought by a writ of mandamus or another extraordinary writ. See id. at 947–55. The use of such writs diminished substantially after the enactment of federal question jurisdiction in 1875. See id. at 955–56. 16 Id. at 959–62; see also St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84 (1936) (Brandeis, J., concurring). 17 314 U.S. 402, 411–13 (1941). 18 NLRB. v. Hearst Publ’ns, Inc., 322 U.S. 111, 130–31 (1944). 19 323 U.S. 134, 140 (1944); United States v. Mead Corp., 533 U.S. 218, 239–40, 259 (2001) (Scalia, J., dissenting). 20 See Bamzai, supra note 15, at 995. 21 Nat’l Muffler Dealers Ass’n v. United States, 440 U.S. 472, 476–77 (1979). The National Muffler Court examined whether the regulations in question were a contemporaneous construction of the statute promulgated with the awareness of congressional intent; the length of time that the regulations were in effect; the degree of reliance placed on the regulations by affected Vol. 12, No. 2 Northeastern University Law Review 587 merits and faults, did eventually provide some clarity to this issue of what judicial deference agencies were entitled to when interpreting their own organic statutes. In the seminal case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court held that a very deferential standard of review is applicable to agency interpretations of their organic statutes if such interpretations had been subject to notice and comment.22 This standard employs a two-step inquiry. Step One inquires whether the statute directly addresses the precise question at issue and, if it does not, Step Two inquires whether the agency’s interpretation is arbitrary, capricious in substance, or manifestly contrary to the statute.23 Under Step Two, so long as the agency’s interpretation of the statute is reasonable, the courts will let the

parties; the consistency of the agency’s position; and the degree of scrutiny given the regulations by Congress during subsequent re-enactments of the statute. Id. at 477. The Court later applied this test in two cases decided not long after its National Muffler decision and, in both cases, noted that less deference is owed to Treasury interpretations issued pursuant to I.R.C. § 7805. See United States v. Vogel Fertilizer Co., 455 U.S. 16, 24 (1982); Rowan Cos. v. United States, 452 U.S. 247, 253 (1981). For almost thirty years after Chevron, deference shown to IRS rulemaking depended on whether the regulations were issued pursuant to a specific statutory grant of authority or pursuant to the general grant of congressional authority under I.R.C. § 7805. See Mark E. Berg, Judicial Deference to Tax Regulations: A Recommendation in Light of National Cable, Swallows Holding, and Other Developments, 61 Tax Law 481, 502 (2008); see also Kristin E. Hickman, The Need for Mead: Rejecting Tax Exceptionalism in Judicial Deference, 90 Minn. L. Rev. 1537, 1579–86 (2006). In 2011, the Court rejected this approach and held that tax regulations were entitled to Chevron deference regardless of the source of their authority: “We see no reason why our review of tax regulations should not be guided by agency expertise pursuant to Chevron to the same extent as our review of other regulations.” Mayo Found. for Med. Research and Educ. v. United States, 562 U.S. 44, 56 (2011). 22 Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984). Skidmore deference survived Chevron with respect to judicial review of informal rules. See Mead, 533 U.S. at 234–36 (explaining that Chevron did not overrule Skidmore and stating that this case, involving a Customs Service ruling, may lend itself to a Skidmore claim); see also Christensen v. Harris Cty., 529 U.S. 576, 587 (2000) (stating that Skidmore deference is applicable to informal agency actions such as opinion letters, manuals, guidelines, and policy statements); Nelson v. Comm’r, 568 F.3d 662, 665 (8th Cir. 2009) (applying Skidmore deference to I.R.S. revenue rulings); Kornman & Assocs., v. United States, 527 F.3d 443, 452–57 (5th Cir. 2008) (concluding that IRS revenue rulings are entitled to Skidmore deference). 23 Chevron, 467 U.S. at 842–43; Mead, 533 U.S. at 277. 588 Melone interpretation stand.24 The Chevron two-step test is more deferential than the Skid- more and National Muffler tests in several respects. For example, under Chevron, whether the agency’s action is consistent with its previous position on the matter at hand and whether the regulation had been issued contemporaneously with the statute are not relevant to the level of deference due the agency.25 Not all scholars agree that the Chevron standard truly employs a two-step inquiry. For example, Matthew C. Stephenson and Adrian Vermeule assert that the two steps of the Chevron test are redundant because “the single question is whether the agency’s construction is permissible as a matter of statutory interpretation; the two Chevron steps both ask the question, just in different ways. As a result, the two steps are mutually convertible.”26 Richard Re, in contrast, asserted that Chevron Step One provides the answer to the question of whether Congress left only one permissible interpretation of a statute or more than one.27 If more than one permissible interpretation exists, then Chevron Step Two defers to any number of interpretations, so long as they are reasonable.28 Chevron was premised on prudential grounds and acknowledged that the modern administrative state demands that agencies possess specialized knowledge beyond the “ordinary knowledge” possessed by the courts.29 The Supreme Court has said that“[t]he expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.”30 Similarly,

24 Chevron, 467 U.S. at 844; Mead, 533 U.S. at 229. 25 See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 1001 n.4 (2005) (stating that lack of consistency does not undermine the case for deference); Smiley v. Citibank, 517 U.S. 735, 740–41 (1996) (applying Chevron deference to a regulations issued approximately a century after the enactment of the statute). Moreover, the Court has held that Chevron deference is owed to regulations that are contrary to previous judicial holdings regarding the meaning of statutory terms so long as the prior holding did not find that the statute was unambiguous. See Nat’l Cable & Telecomms., 545 U.S. at 982. 26 Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 VA. L. REV. 597, 599 (2009). 27 Richard M. Re, Should Chevron Have Two Steps?, 89 IND. L.J. 605, 610–16 (2014). 28 Id. 29 Chevron, 467 U.S. at 844. 30 Am. Elec. Power Co., v. Connecticut, 564 U.S. 410, 428 (2011). Vol. 12, No. 2 Northeastern University Law Review 589

Chevron gives tacit recognition to Congress’s limitations, for it also rests on notions of congressional intent to delegate authority to the agencies (either expressly or implicitly) and political accountability: judicial deference to agency action is warranted because “[t]he power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”31

1. Criticisms The notion that Congress recognizes its limitations and, consequently, delegates authority to agencies whose personnel possess the expertise required to effectively deal with the matters in question is attractive. However, several criticisms have taken aim at Chevron on both prudential grounds and on separation of powers principles. First, expertise and political accountability are not always compatible with each other. Fealty to technocratic expertise often rests uncomfortably with the need to engage in political horse trad- ing, and political considerations may countermand technical considerations – a point made by critics of administrative power. Such critics, including the House of Representatives, question the political legitimacy of agency actions because of the inordinate influence that the regulated constituency often exerts over the regulator. 32 There are several reasons for the oft-held perception of industry dominance over regulators, including resource disparities, political influence, informational disparities, and the proverbial revolving door between agencies and their regulated constituents.33 Second, although Chevron ostensibly pays fealty to congressional intent and separation of powers, Chevron deference may, in certain cases, do violence to separation of powers principles by sanc-

31 Chevron, 467 U.S. at 843. 32 The perception of industry dominance over regulators is based, in part, on resource and informational disparities, political influence, and the revolving door between agencies and their regulated constituents. See David J. Arkush, Direct Republicanism in the Administrative Process, 81 GEO. WASH. L. REV. 1458, 1473–75 (2013). Legislation has been introduced in the House of Representatives, including legislation introduced in 2019, that would require a de novo judicial review of all relevant questions of law. See, e.g., Separation of Powers Restoration Act of 2019, H.R. 1927, 116th Cong. § 2 (2019); Separation of Powers Restoration Act of 2016, H.R. 4768, 114th Cong. § 2 (2016). 33 See Arkush, supra note 32, at 1473–75 (2013). 590 Melone tioning Congress’s abrogation of its legislative role. While Congress can delegate some responsibility to agencies, Congress cannot delegate its Article I legislative powers, and broad delegations of regulatory authority to agencies arguably constitutes such a delegation.34 In Mistretta v. United States, the Supreme Court applied an “intelligible principle” test to determine whether a congressional delegation is too broad:

Applying this “intelligible principle” test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. . . . Accordingly, this Court has deemed it “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”35

Third, Chevron’s deferential standard of review may further violate separation of powers principles because it may conflict with the strictures of the APA. Section 706 of the APA states that a “reviewing court shall decide all relevant questions of law, interpret

34 Field v. Clark, 143 U.S. 649, 692 (1892). It is worth noting that the Supreme Court has only twice employed the nondelegation doctrine to invalidate congressional delegations of authority to an agency. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Kristin E. Hickman, Gundy, Nondelegation, and Never-Ending Hope, Reg. Rev. (July 8, 2019), https://www.theregreview. org/2019/07/08/hickman-nondelegation/. 35 488 U.S. 361, 372–73 (1989); see also Gundy v. United States, 139 S. Ct. 2116, 2122–24 (2019) (holding that Congress did not violate this doctrine by granting the Attorney General broad authority to implement the Sex Offender Registration and Notification Act to offenders who were convicted prior to the statute’s passage). The APA precludes judicial review of actions committed to agency discretion by law, a provision that the Court has construed narrowly, applicable in the rare instances where the statutory terms are so broad that there is no law to apply. See 5 U.S.C. § 701(2) (2018); Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410–11 (1971). This “no law to apply” standard appears to sit uncomfortably aside the non-delegation doctrine set forth in Mistretta. See Viktoria Lovei, Revealing the True Definition of APA § 701(a) (2) by Reconciling “No Law to Apply” with the Nondelegation Doctrine, 73 U. Chi. L. Rev. 1047 (2006). Vol. 12, No. 2 Northeastern University Law Review 591 constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”36 Arguably, the application of Chevron deference represents a failure by the courts to properly perform their judicial function as set forth in § 706 of the Act. Many scholars believe that Congress, in enacting the APA, intended to rein in the growing power of the agencies and enshrine a de novo standard of review of agencies’ interpretation of the law.37 Moreover, any seeming conflict betweenChevron and the APA should not be resolved on policy grounds or assumptions regarding Con- gress’s intent because the APA cannot be overridden by another statute unless the other statute does so expressly.38 A final criticism of theChevron doctrine is that because courts have applied Chevron to statutes that were enacted prior to the Chev- ron decision, in those cases, courts are not reflecting the interpretive norms pursuant to which Congress legislated but, instead, are up- ending those norms.39

2. Extraordinary Cases To the extent that Chevron deference rests on an implicit delegation of authority by Congress to an agency to patch statutory gaps, such deference is unwarranted if circumstances indicate that such implicit delegation by Congress was unlikely. The Supreme Court set forth this idea in FDA v. Brown & Williamson Tobacco Corp., a case in which the Food and Drug Administration’s authority to regulate tobacco products was at issue:

36 5 U.S.C. § 706 (2018). Though a detailed analysis of the APA is beyond the scope of this work, a basic understanding of the Act is helpful to understanding certain criticisms of Chevron. The Act’s purposes are to inform the public about agencies’ procedures, rules, and organization; provide the public with the opportunity to participate in the rule-making process; to establish standards for the promulgation of rules and adjudicating disputes; and to set forth the scope of judicial review of agencies’ actions. U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 9 (photo reprint 1973) (1949), http://archive.law.fsu. edu/library/admin/attorneygeneralsmanual.pdf. This source also provides a detailed description and analysis of the statute. 37 See Bamzai, supra note 15, at 986–90. 38 See 5 U.S.C. § 559 (2018). See generally Patrick J. Smith, Chevron’s Conflict with the Administrative Procedure Act, 31 Va. Tax Rev. 813, 816–24 (2013); Cass R. Sunstein, Beyond Marbury: The Executive’s Power to Say What the Law Is, 115 Yale L.J. 2580, 2585–91 (2006); John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113, 193–99 (1998). 39 See John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 625 (1996). 592 Melone

Finally, our inquiry into whether Congress has directly spoken to the precise question at issue is shaped, at least in some measure, by the nature of the question presented. Deference under Chevron to an agency’s construction of a statute that it administers is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.40

The Court ultimately refused to defer to the agency in this matter.41 In the aftermath of Kisor, it is arguable that the courts’ application of Auer deference may be predicated on an analysis similar to that undertaken with respect to Chevron deference in “extraordinary cases.”42 A relatively recent case further demonstrates the “extraordinary case” case exception to Chevron deference. The Court in King v. Burwell refused to apply Chevron deference to a Treasury regulation that interpreted a tax credit provision, § 36B of the Internal Revenue Code, rather expansively for reasons similar to its refusal to apply such deference in Brown & Williamson.43 At issue in King was whether, due to an ambiguity in § 36B, tax credits were available to enrollees on Federal Exchanges as the Treasury Department believed, or whether instead, the statutory provision limited such credits to enrollees on State Exchanges. The Patient Protection and Affordable Care Act (ACA) segmented the health insurance market into four markets, one of which is comprised of the American Health Bene- fit Exchanges [hereinafter Exchanges].44 The Exchanges, which are

40 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125–26, 159 (2000) emphasis added) (internal citation omitted). The Court also quoted from a law review article written by Justice Breyer that predated his membership on the Court: “A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute’s daily administration.” Id. (quoting Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986)). 41 529 U.S. at 160–61. 42 See infra notes 249–65 and accompanying text. 43 King v. Burwell, 135 S. Ct. 2480, 2488–89 (2015). 44 The other markets are the individual market and two employer provided group Vol. 12, No. 2 Northeastern University Law Review 593 governmental or non-profit entities, function as insurance market- places in which individuals have the ability to comparison shop for insurance products.45 The statute required each state to create and operate an Exchange that offers insurance for purchase by individuals and employees of small employers.46 However, under the ACA, a state could opt out of creating and operating an Exchange, in which case the Exchange will be established by the federal government.47 A critical component of the ACA was the so-called individual mandate.48 The individual mandate required applicable individuals and their dependents to maintain the minimum essential health insurance coverage.49 Failure to maintain such coverage for one or more months would result in the imposition of a penalty that was to be included with a taxpayer’s income tax return for the taxable year, which would include the month that such failure occurred.50 The Tax Cuts and Jobs Act of 2017 eliminated the shared responsibility payment effective in 2019.51 Section 36B of the Internal Revenue Code provided a tax credit to individuals and families whose income is below a certain threshold and who pay premiums for insurance through an Ex- change established by the State under section 1311 of the ACA.52 The credit was designed to subsidize health insurance coverage for taxpayers whose household income for the taxable year equals or exceeds 100% but does not exceed 400% of an amount equal to the

insurance markets, the small and large group market. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, §§ 1304, 1311, 1312, 124 Stat. 119, 171, 174, 182 (2010) (codified at 42 U.S.C. §§ 18024, 18031, 18032 (2018)). 45 Id. § 1311, 124 Stat. at 176 (codified at 42 U.S.C. § 18031(d)(1)–(4)(2018)). 46 Id. § 1311(b), 124 Stat. at 173 (codified at 42 U.S.C. § 18031 (2018)). 47 Id. § 1321(c), 124 Stat. at 186 (codified at 42 U.S.C. § 18041 (2018)). 48 Id. § 1501(b); Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111–152, § 10106(b)(1), 124 Stat. at 244–49, 909–10 (2010) (codified as amended at I.R.C. § 5000A (2018)).The penalty amount imposed by the statute was amended shortly thereafter by the Health Care and Education Reconciliation Act of 2010. Health Care and Education Reconciliation Act §1002, 124 Stat. 1029, 1032–33 (2010) (codified at I.R.C. § 5000A (CCH 2018)). 49 I.R.C. § 5000A(a) (CCH 2018)). 50 I.R.C. §§ 5000A(a), 5000A(b)(1)-(2) (CCH 2018). The requirement to maintain minimum essential coverage is variously met through, among other means, Medicare or Medicaid coverage, individual insurance policies, or eligible employer-sponsored group health plans or insurance coverage. Id. § 5000A(f). 51 Pub. L. No. 115-97, § 11081 131 Stat. 2054, 2092 (2017). 52 I.R.C. §§ 36B(a), 36(c)(1)(A), 36B(c)(2)(A) (CCH 2019). 594 Melone poverty line for a family of the size involved.53 Section 36B’s language appears to limit eligibility for a tax credit to taxpayers who are enrolled in State Exchanges.54 However, the Treasury issued regulations pursuant to which participants in Federal Exchanges would also qualify for the tax credit.55 Because Virginia did not establish an Exchange, its residents were served by the Federal Exchange, HealthCare.gov.56 The availability of tax credits to enrollees of the federal Exchange in Virginia subjected certain enrollees to the individual mandate; not wishing to pay the individual mandate, those enrollees challenged the Trea- sury regulations.57 The District Court held that the ACA as a whole evinced Congress’s intent to make the credits available nationwide and that consequently, the regulations were within the Treasury’s authority; the Fourth Circuit unanimously affirmed.58 However, in Halbig v. Burwell, a case brought by residents of several states that were insured through federal Exchanges, the D.C. Circuit held that the regulations were invalid.59 On June 25, 2015, Supreme Court heard King v. Burwell and, in a 6-3 decision, affirmed the judgment of the Fourth Circuit and held that enrollees on Federal Exchanges are indeed entitled to tax credits.60 On behalf of the Court, the Chief Justice proceeded to analyze the IRS’s interpretation of § 36B without the use of Chevron and, in contrast to the lower courts, resorted to applying “extraor-

53 I.R.C. § 36B(c)(1) (CCH 2019 ). 54 See supra note 52 and accompanying text. 55 See 26 C.F.R. §§ 1.36B-1(k) (2012) (defining Exchange by reference to 45 C.F.R. § 155.20), 1.36B-2(a) (providing eligibility for credit by enrollment in an Exchange); 45 C.F.R. § 155.20 (2012) (stating that the term “Exchange” refers to state Exchanges, regional Exchanges, subsidiary Exchanges, and a federally-facilitated Exchange). 56 King v. Sebelius, 997 F. Supp. 2d 415, 419 (E.D. Va. 2014), sub nom King v. Burwell, 759 F.3d 358 (4th Cir. 2014). 57 Id. at 420–21. 58 King v. Burwell, 759 F.3d 358 (4th Cir. 2014), aff’g King v. Sebelius, 977 F. Supp. 2d 415 (E.D. Va. 2014). 59 758 F.3d 390, 393–94 (D.C. Cir. 2014), rev’g Halbig v. Sebelius, 27 F. Supp. 3d 1 (D.D.C. 2014). The decision of the court was vacated and a rehearing en banc was granted. Halbig v. Burwell, 2014 U.S. App. LEXIS 17099, at *5 (D.C. Cir. Sept. 4, 2014). However, the case subsequently was held in abeyance pending the decision of the Supreme Court. Halbig v. Burwell, 2014 U.S. App. LEXIS 23434, at *12 (D.C. Cir. Nov. 12, 2014). 60 King v. Burwell, 135 S. Ct. 2480, 2496 (2015). Justices Scalia, Thomas, and Alito dissented. Id. Vol. 12, No. 2 Northeastern University Law Review 595 dinary case” jurisprudence. He reasoned that the deference afforded administrative agencies in their interpretations of statutory ambiguities under Chevron is premised on the notion that such ambiguities “constitute[] an implicit delegation from Congress to the agency to fill in the statutory gaps.”61 This implication may be unwarranted in “extraordinary cases” and, according to the Chief Justice, this legislation was one such case:62

The tax credits are among the Act’s key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Fed- eral Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. . . . It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. . . . This is not a case for the IRS.63

The majority opinion noted that plain statutory language is enforceable according to its terms, but whether such language is in fact plain “‘may only become evident when placed in context . . . and with a view to their place in the overall statutory scheme.”’64 The Court found it possible to interpret the language of § 36B either to limit tax credits to enrollees in State Exchanges or to permit enrollees on both State and Federal Exchanges to qualify for tax credits.65 However, it also believed that the statute intended equivalency between the two types of Exchanges and that denying tax credits to enrollees on Federal Exchanges would create a fundamental difference between the two types of Exchanges.66 The Court rejected the notion that the words “established by the State” would have been unnec-

61 Id. at 2488 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). 62 Id. at 2488–89 (citing Brown & Williamson Tobacco Corp., 529 U.S. at 159). 63 Id. at 2489 (internal citations omitted). Until recently, the level of deference due tax regulations was uncertain. See supra note 21 and accompanying text. 64 King, 135 S. Ct. at 2489 (quoting Brown & Williamson Tobacco Corp., 529 U.S. at 132–33). 65 Id. at 2490–91. 66 Id. at 2489–90. 596 Melone essary if Congress intended the tax credits to be available for qualified individuals enrolled on all Exchanges.67 It explained that the legislation had been poorly drafted, due in large part to the political machinations that were employed in order to secure its passage.68 Accordingly, the Court found the phrase “an Exchange established by the State” to be ambiguous.69 As previously noted, the Court did not defer to the IRS for the resolution of the statute’s ambiguity.70 Instead, it turned to the broader structure of the legislation and to separation of powers principles to clarify the ambiguity and ultimately rule in favor of the government.71 In both Brown & Williamson Tobacco and King, the Court explained its reluctance to invoke Chevron was based on its belief that the stakes involved belied an intent by Congress to delegate the issue to the requisite agency. However, the Court in both cases found evidence of Congress’s intent with respect to the issue before the Court so that, after a searching inquiry, there was no ambiguity after all. As previously noted, Auer deference, in the aftermath of the Court’s decision in Kisor, ostensibly resembles the Court’s approach to Chevron deference in what it considers an “extraordinary case.”72

B. The State Farm Doctrine Chevron inquires whether the substance of a regulatory action is reasonable in light of the statutory language it purports to interpret. However, the fact that an agency’s chosen regulatory approach passes muster under Chevron does not ensure that courts will sustain the regulatory scheme. Under the APA, a court may invalidate agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”73 One year before Chevron,

67 Id. at 2492. 68 Id. 69 Id. 70 See supra notes 61–63 and accompanying text. 71 King, 135 S. Ct. at 2495–96. 72 See supra note 71 and accompanying text. 73 5 U.S.C. § 706(2)(A) (2018). Courts may also set aside agency actions that are contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; taken without observance of required procedure; decisions in certain hearings that are unsupported by substantial evidence; or unwarranted by the facts to the extent that the facts are subject to a trial de novo. See id. §§ 706(2)(B)– (F) (2018). Unless a statute provides otherwise, only final agency actions for which there is no other adequate court remedy are reviewable by a court. See id. § 704. In general, “a person suffering legal wrong because of agency action, Vol. 12, No. 2 Northeastern University Law Review 597 the Supreme Court decided Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co.,74 the seminal case concerning the APA’s arbitrary and capricious standard. How and why a particular regulatory approach was chosen is critical to its sustainability notwithstanding Chevron. State Farm, therefore, provides a check on the latitude that Chevron otherwise provides the agencies in their formal rulemaking—a check that is absent in the informal rulemaking context where agencies receive Auer deference. At issue in State Farm was the Department of Transportation’s rescission of an automobile safety standard.75 The Department had issued several automobile safety standards between 1967 and 1978 that initially required automobile manufacturers to install seatbelts and that later required the installation of full passive front seat occupant restraint systems—airbags or automatic seatbelts—in model year 1984 vehicles.76 In 1981, the Department ordered a one year delay in the new standard and eventually rescinded the standard altogether.77 The regulations were issued pursuant to the Nation- al Traffic and Motor Vehicle Safety Act of 1966, which directed the Secretary of Transportation to issue practical and objective motor vehicle safety standards and, in so doing, to consider all relevant safety data, the reasonableness and practicality of proposed safety standards, and whether such standards would contribute to carrying

or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review.” Id. § 702. However, agency actions are not subject to judicial review if a statute precludes such review or the action is committed to agency discretion by law. Id. §§ 701(1)–(2). See supra note 35 for a discussion of actions committed to agency discretion and the non-delegation doctrine. 74 463 U.S. 29, 29 (1983). 75 Id. at 34. 76 Id. at 34–37. Originally, passive restraints were required in all vehicles manufactured after August 15, 1975. Id. at 35. In the two years preceding the effective date of the passive restraint requirement, vehicles could be manufactured with passive restraint or shoulder belts coupled with an ignition lock. Id. The shoulder belt/ignition lock option was selected by most manufacturers, but the unpopularity of this feature led Congress to amend the statute in 1974 to foreclose this option. Id. at 36. The effective date was later postponed for approximately one year and then suspended pending the completion of a demonstration project. Id. at 37. Finally, a new Secretary of Transportation had the Department of Transportation issue the new standard in 1977. Id. The standard was to be phased in first with large cars in model year 1982 and then to all cars by model year 1984. Id. 77 Id. at 38. 598 Melone out the purpose of the statute.78 While vehicle manufactures had planned to meet the standard in approximately ninety-nine percent of new cars through the installation of automatic seat belts, the Department had assumed that airbags would only be installed in sixty percent of new cars.79 Because most automatic seat belts could be disengaged with relative ease, the Department believed that minimal safety benefits would be derived from the imposition of the standard, thereby rendering the costs to comply with the standard unreasonable.80 Moreover, the Department believed that the imposition of an expensive yet ineffective standard would negatively impact the public’s attitude toward vehicle safety.81 State Farm and an automobile insurance trade group challenged the rescission of the standard, and the D.C. Circuit invalidated the rescission because it believed that there was insufficient evidence to support the agency’s conclusion regarding seat belt use, and because the Department failed to give proper consideration to either a requirement to install non-detachable seat belts or to a requirement to install airbags.82 The Supreme Court agreed with the D.C. Circuit that rescission of a regulation was reviewable under the arbitrary and capricious standard, stating that “the revocation of an extant regulation is substantially different than a failure to act” and obligates an agency “to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.”83 According to the State Farm court, the arbitrary and capricious standard is narrow and does not sanction the substitution of

78 Id. at 33–34. 79 Id. at 38. 80 Id. at 38–39. 81 Id. 82 Id. at 39–40. 83 Id. at 41–42. The Court, therefore, distinguished the revocation of an existing regulation from the failure to issue the regulation in the first place: the former is subject to judicial review while in general the latter is not. See id. The APA does authorize a court to compel agency action that has been unlawfully withheld or unreasonably delayed. 5 U.S.C. § 706(1) (2018). However, the courts are reluctant to compel agency, and will do so only if they find that the agency has a clear, nondiscretionary duty to act. Eric Biber, Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction, 26 Va. Envtl L.J. 461, 465 (2008). Agency inaction is often considered committed to agency discretion by law or not considered final agency action, and therefore, unreviewable. See id. at 465–66. Vol. 12, No. 2 Northeastern University Law Review 599 a court’s judgment for that of the agency.84 An agency must articulate a satisfactory explanation for its action and there must exist a rational nexus between the facts found and the agency’s action.85 The State Farm court explained that an agency rule is arbitrary and capricious if the agency: 1) relied on factors that Congress did not intend it to consider; 2) entirely failed to consider an important aspect of the issue in question; 3) offered an explanation that is counterfactual; or 4) offered an explanation that is so implausible that it belies a difference of opinion or agency expertise.86 It continued to say that while a court may discern an agency’s reasoning if such reasoning is not clear, a court cannot provide a reasoned basis for an agency’s action that the agency itself has not advanced.87 The Court held that the rescission of the passive restraint requirement was arbitrary and capricious because the fact that detachable seat belts are ineffective does not provide a rational basis for rescinding the airbag requirement and, with respect to automatic seatbelts, the Depart- ment failed to consider evidence regarding the effect that detachable seat belts would have on vehicle safety.88 Several scholars and the American Bar Association have asserted that a conceptual distinction between Chevron and State Farm is difficult to discern because both cases implicate similar inqui-

84 Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43. 85 Id. (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). 86 Id. 87 Id. (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). 88 Id. at 48–49. The Court found that the Department of Transportation gave no consideration to amending the standard to mandate airbags in light of its position that detachable seat belts are not effective. Id. at 49–50. The agency’s assertions that airbags create difficulties in the production of small cars and that public reaction to mandatory airbags would be negative were, according to the Court, post hoc rationalizations. Id. Agency action, if it is to be sustained, must be based on the reasons articulated by the agency when it took action. Id. (citing Burlington Truck Lines, 371 U.S. at 168; Chenery, 332 U.S. at 196; Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 539 (1981)). The Court acknowledged that agencies often operate in the face of uncertainty and that judgments may be drawn from facts and probabilities. Id. at 52. However, an agency must do more than merely recite “substantial uncertainty” as its rationale for an action; instead, it must rationally connect the facts found with the choice made and justify why it is rescinding a rule before searching for further evidence. Id. at 51–52. The Court found the Department of Transportation’s reliance on various data and its consideration of a “continuous passive” seat belt option inadequate. Id. at 52–56. 600 Melone ries.89 State Farm and Chevron will yield the same result in many, if not most, cases. Chevron Step Two is unlikely to be met if the regulatory action is supported by counterfactual or implausible justifications or by actions that fail to consider an important aspect of the issue in question. However, despite their oft similarity, State Farm and Chevron are not the same. Chevron examines whether an agency has reasonably interpreted the law, while State Farm seeks an articulated reasonable factual and/or policy basis for an agency’s action.90 While Chevron rests on notions of agency expertise and congressional intent, justification for State Farm includes the need to impose discipline on agency decisions, legitimize agency action, and enable judicial review.91 Chevron and State Farm can very well yield disparate results. Chevron Step Two permits any number of agency choices provided that those choices are reasonable; in contrast, State Farm asks why the agency made a particular choice. An agency’s choice may be permissible in the abstract yet inadequately justified. In State Farm, the Department of Transportation had significant latitude to take action under the statute, and a variety of approaches (for example, passive seat belts only, air bags only, seat belts for certain cars, and air bags for others, or manual seat belts with an interlock or buzzer feature) would probably have passed muster under Chevron Step Two.92 How- ever, the State Farm court required the agency to articulate the facts to support the choice it made. Therefore, while failure of Chevron Step Two inevitably will result in a concomitant failure of the State Farm test, the opposite is not necessarily true. The Ninth Circuit, in a 2019 decision that upheld the validity of Treasury regulations requiring the allocation of a portion of equity-based compensation costs to controlled foreign corporations, stated:

In the context of the arguments made in this case,

89 See David Zaring, Reasonable Agencies, 96 Va. L. Rev. 135, 162–64 (2010). 90 Justice Breyer has noted that the law versus facts distinction between the two tests is counterintuitive because of its implication that the courts are more likely to defer to an agency’s interpretation of law than to an agency’s factual and policy conclusions. See Thomas J. Miles & Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U. Chi. L. Rev. 761, 765 (citing Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 394 (1986)). 91 See Jodi L. Short, The Political Turn in American Administrative Law: Power, Rationality, and Reasons, 61 Duke L.J. 1811, 1820–23 (2012). 92 See supra notes 76–81 and accompanying text. Vol. 12, No. 2 Northeastern University Law Review 601

we evaluate the validity of the agency’s regulations under both Chevron and State Farm, which “provide for related but distinct standards for reviewing rules promulgated by administrative agencies. State Farm is used to evaluate whether a rule is procedurally defective as a result of flaws in the agency’s decisionmaking process. Chevron, by contrast, is generally used to evaluate whether the conclusion reached as a result of that process—an agency’s interpretation of a statutory provision it administers—is reasonable. A liti- gant challenging a rule may challenge it under State Farm, Chevron, or both.”93

A relatively recent tax case in the Federal Circuit nicely captured the distinction between Chevron and State Farm. At issue in Dominion Resources, Inc. v. United States was a regulation interpreting I.R.C. § 263A, a statute that required, inter alia, interest to be capital- ized on certain expenditures.94 The regulation adopted a methodol- ogy that was decidedly government-friendly and somewhat counterintuitive. The Federal Circuit reversed the decision of the Court of Federal Claims and held that the regulation in question failed both Chevron Step Two and the State Farm test.95 Judge Clevenger’s concurrence aptly distinguished between Chevron Step Two and State Farm. He agreed that because the Treasury proffered no reasonable explanation for its interpretation, the regulation should be invalidated under State Farm.96 However, he did not believe that the regulation should have been invalidated under Chevron Step Two and articulated several reasons why the Treasury’s position merited serious consideration.97 Judge Clevenger noted that the majority’s application of Chevron precludes the government from re-promulgating its regulation, no matter how well-formed its reasoning for its interpretation of the relevant statute was.98 Therein lies the distinction between Chevron and State Farm: where a regulation fails Chevron Step Two, State Farm is irrelevant because no explanation can turn an unrea-

93 Altera Corp. v. Comm’r, 926 F.3d 1061, 1086 (9th Cir. 2019) (internal citations omitted). 94 681 F.3d 1313, 1314. 95 Id. 96 Id. at 1320 (Clevenger, J. concurring). 97 Id. at 1320–21. 98 Id. at 1322–23. 602 Melone sonable position into a reasonable one. Judge Clevenger’s concurrence also evidences that State Farm cabins the discretion that Chevron provides the agencies. He believed that the regulation in question passed muster under Chevron but not under State Farm.99 In essence, despite the fact that multiple interpretations of a statute—including the interpretation put forth by an agency—may be reasonable, the interpretation put forth must be the result of a reasoned process with articulated facts to support the choice made the agency. This process-oriented check on the discretion granted to agencies in their formal rulemaking is absent from the agencies’ informal rulemaking that implicates Auer deference, and is one reason that Auer deference rests on a weaker doctrinal foundation than Chevron deference.

II. Deference to Regulatory Interpretations by Agencies: Seminole Rock & Auer Deference to agencies’ interpretations of their own regulations, so-called Seminole Rock or Auer deference, predates Chevron by four decades. However, such deference has not received the scholarly attention that Chevron deference has.100 Chevron deference is premised on the comparative expertise of agencies and the implicit delegation of authority by Congress to the agencies.101 Regulatory actions entitled to Chevron deference have been issued after notice and comment and their promulgation must pass muster under State Farm.102 Whether an agency is entitled to deference in its interpretation of its own regulations raises issues similar to those raised by Chevron. However, there are important distinctions between agencies’ statutory and regulatory interpretations. This section discusses Auer deference and the similarities and distinctions between such deference and Chevron deference. In short, this section points out that despite their similarities, Auer rests on a weaker doctrinal foundation than Chevron does, and it is no surprise that the Kisor decision cabined Auer deference to a great extent. A. Seminole Rock & Auer The issue in Bowles v. Seminole Rock & Sand Co. was the interpretation of a regulation issued by the Office of Price Administration

99 Id. 1320–21 (Clevenger, J., concurring) 100 See supra note 6. 101 See supra note 24. 102 See supra notes 14, 61–62, and accompanying text. Vol. 12, No. 2 Northeastern University Law Review 603 pursuant to the Emergency Price Control Act of 1942.103 The regulation operated to freeze the price of certain products sold by a seller to the price charged by that seller during March 1942.104 Under the regulation, the maximum price that could be charged for the product in question was the highest price charged for any product that was delivered or offered for delivery during March of 1942.105 The regulation further defined the term “highest price charged during March 1942” in a tripartite manner that considered whether a sale was made for delivery in March 1942, in which case the price for such sale established the base price.106 If no such sale was made, then the regulation looked to offers to sell for delivery in March 1942; and, if this approach yielded no base price, then the price charged by the seller for a different class of product, adjusted for customary price differentials between the products in question, was established as the base price.107 The respondent entered into a contract in October 1941 to sell crushed stone for $0.60 per ton and delivered the stone in March 1942.108 The respondent also entered into a contract in January 1942 to sell crushed stone for $1.50 per ton, but did not deliver this stone until August 1942.109 The government, applying the first pricing rule, determined that the ceiling price for the respondent was set at $0.60 per ton.110 Respondent asserted that the first of the three pricing rules was inapplicable because this rule required that both the sale and delivery occur in March 1942.111 As a result, the respondent argued, the second rule was applicable and therefore established the price ceiling at $1.50 per ton.112 The Court stated that in determining the meaning of a regulation, “the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.”113 This statement underpinned so-called Seminole Rock deference (what would later be referred to

103 325 U.S. 410, 411 (1945). 104 Id. at 413. 105 Id. at 414. 106 Id. at 414–15. 107 Id. 108 Id. at 412. 109 Id. 110 Id. at 412–13. 111 Id. at 415. 112 Id. 113 Id. at 414. 604 Melone as Auer deference). The statement was made in a rather conclusory manner because the Court offered no reasons why such a deferential standard was warranted. Ironically, a close reading of the case indicates that the Court did not rely on the deference it granted. The Court proceeded to examine the regulations in question and held that the regulations unambiguously called for the result put forth by the government:

As we read the regulation, however, rule (i) clearly applies to the facts of this case, making 60 cents per ton the ceiling price for respondent’s crushed stone. The regulation recognizes the fact that more than one meaning may be attached to the phrase “highest price charged during March, 1942.” The phrase might be construed to mean only the actual charges or sales made during March, regardless of the delivery dates. Or it might refer only to the charges made for actual delivery in March. Whatever may be the variety of meanings, however, rule (i) adopts the highest price which the seller “charged . . . for delivery” of an article during March, 1942. The essential element bringing the rule into operation is thus the fact of delivery during March. If delivery occurs during that period the highest price charged for such delivery becomes the ceiling price. Nothing is said concerning the time when the charge or sale giving rise to the delivery occurs. One may make a sale or charge in October relative to an article which is actually delivered in March and still be said to have “charged . . . for delivery . . . during March.” We can only conclude, therefore, that for purposes of rule (i) the highest price charged for an article delivered during March, 1942, is the seller’s ceiling price regardless of the time when the sale or charge was made.114

The Court found further support in other provisions of the regulatory language.115 Although the Court did note that the consistent administrative interpretation of the rule removed any doubts it

114 Id. at 415–16. 115 Id. at 416–17. Vol. 12, No. 2 Northeastern University Law Review 605 had regarding the regulation’s interpretation, the Court’s opinion belied that it had any doubts once it parsed through the regulatory language.116 As noted above, the Court did not articulate why deference is due an agency’s interpretation of its own regulations. De- cades later, however, the Court justified such deference with reasons similar to those used to justify Chevron deference: political accountability and expertise.117 Further support for deference is the fact that an agency is in the best position to interpret regulations that the agency itself issued.118 Note that Seminole Rock was decided prior to the passage of the APA, yet its precedential value was undiminished by the statute’s passage. Like Chevron deference, the doctrine set forth in Seminole Rock was never reconciled with the judicial review provisions of the APA.119 A half-century after Seminole Rock, the Court decided Auer v. Robbins.120 At issue in Auer was whether a Department of Labor regulation implementing the Fair Labor Standards Act’s exemption of executive, administrative, or professional employees from the statute’s overtime pay requirements was a permissible reading of the statute.121 The regulation provided that one requirement for exempt status as an executive, administrative, or professional employee was the receipt of a threshold compensation level on a salaried basis.122 The regulation defined salary-based compensation in part as compensation not subject to reduction because of variations in the quality or quantity of work.123 The petitioners asserted that the “no disciplinary deductions” element of the salary-basis test was an “unreasonable interpretation of the statutory exemption” with respect to public sector employees.124 The Court invoked Chevron and held

116 Id. at 415–18. The Court cited Seminole Rock in a 1989 case in which it applied a deferential standard to the Forest Service’s interpretation of its own regulation. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989). 117 See Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 696–97 (1991). 118 See Martin v. Occupational Safety & Health Rev. Comm’n, 499 U.S. 144, 152– 53 (1991). 119 However, in a portion of the Kisor opinion only garnering four votes, Justice Kagan did reconcile such deference with the judicial review provisions of the APA—a reconciliation to which Justice Gorsuch objected. See infra notes 209– 13, 236 and accompanying text. 120 519 U.S. 452 (1991). 121 Id. at 454. 122 Id. at 455. 123 Id. 124 Id. at 457. 606 Melone that the application of the regulation to public sector employees was a permissible construction of the statute.125 The Department of Labor’s application of the regulation to certain law enforcement personnel was also at issue. The petitioners, two sergeants and a lieutenant, asserted that they were not exempt from the statutory overtime rules because their compensation could be reduced for a variety of disciplinary reasons related to quality and quantity of work issues.126 The crux of the interpretive dispute centered on whether the “no disciplinary deductions” rule is violated if “a theoretical possibility of [a pay] reduction[]” is possible or whether a more concrete vulnerability to a pay reduction is required.127 In an amicus brief, the Department of Labor stated its position that the regulatory standard is met if the employer has an actual practice of making pay deductions or if there exists an employment policy that creates a significant likelihood of such deductions – an interpretation under which the overtime exemption would be maintained in this case.128 The Court, citing language from the Seminole Rock opinion, stated that the Department of Labor’s interpretation of its own regulations is “controlling unless ‘plainly erroneous or inconsistent with the regulation.’”129 According to the Court, the Department of Labor’s interpretation easily passed muster under this standard.130 Moreover, the Court believed that the Department’s position was the result of fair and considered judgment and not some “post hoc rationalizatio[n]” made to defend past agency action from attack.131 The Court rejected the argument that the Department of Labor’s position contradicts the rule that exemptions to the Fair Labor Stan- dards Act are to be narrowly construed. According to the Court, this is a rule that governs judicial interpretations of statutes and regulations but does not impose any limitation on an agency in resolving

125 Id. at 457–58. The respondents also raised a procedural objection that implicated issues similar to those that State Farm addressed: the Court held that these issues could only be raised pursuant to the procedures set forth in the APA. Id. at 458–59. See supra notes 74–98 and accompanying text for a discussion of State Farm. 126 Auer, 519 U.S. at 459–60. 127 Id. at 459. 128 Id. at 461–62. 129 Id. at 461 (internal citations omitted). 130 Id. 131 Id. at 462 (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988)). Vol. 12, No. 2 Northeastern University Law Review 607 regulatory ambiguities.132 Auer deference is not due to an agency if its interpretation is not the result of “fair and considered judgment,” if it conflicts with a prior interpretation, or if it represents a “convenient litigating position” or “post hoc rationalizatio[n].”133 Note that Chevron deference has been applied regardless of whether the regulation in question conflicted with prior guidance.134 In some cases, whether a regulation contains an ambiguity is a point of contention.135

1. Criticisms Auer deference is a logical extension of Chevron to the extent that it rests on notions of political accountability and subject matter expertise.136 In fact, who better to discern the meaning of words than the person from whom those words emanated?137 Some of the criticisms leveled at Chevron are applicable to Auer; for instance, Au- er’s deferential standard of review, like Chevron’s standard of review, exists uncomfortably with the language of the judicial review provisions of the APA.138 Critics of Auer, however, point to two infirmities applicable only to Auer and not to Chevron. First, Auer deference violates separation of powers principles because it places interpretive and enforcement power in the same hands without the independent interpretive check provided by statutory language that exists under

132 Id. at 462–63. 133 Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012) (quoting Auer, 519 U.S. at 462 and Bowen, 488 U.S. at 213). 134 See supra note 25 and accompanying text. 135 For example, the Fourth Circuit held that the Department of Education’s interpretation of its regulations under Title IX of the Civil Rights Act of 1964 that required schools to treat transgender students consistent with their gender identity was entitled to deference under Auer. See G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 715, 719–20 (4th Cir. 2016), vacated by 137 S. Ct. 1239 (2017). But see Texas v. United States, 201 F. Supp. 3d 810, 828, 832–33 (N.D. Tex. 2016) (granting preliminary injunction and holding that Auer deference was inapplicable to the Department’s interpretation). The court in Texas v. United States stated that Auer “deference is only warranted . . . when the language of the regulation is ambiguous” and that an ambiguity does not exist merely because the drafters lacked the foresight to choose language that would contradict any later creative contortions. Id. at 832 (citing Moore v. Hannon Food Servs., Inc., 317 F.3d 489, 495, 497 (5th Cir. 1989)). 136 See supra notes 29–31, 117 and accompanying text. 137 See supra note 113 and accompanying text. 138 Some members of Congress have put forth amendments to § 706 of the APA that would require courts to undertake a de novo review of relevant questions of law. See supra note 32 and accompanying text. 608 Melone

Chevron.139 In contrast, Chevron—to the extent it is grounded in implied congressional delegation—is felicitous to separation of powers, although it does raise its own, albeit different, separation of powers issues.140 Second, Chevron deference is inapplicable to informal agency actions and thus encourages agencies—if seeking deference to their regulatory choices—to act by formal rulemaking, with the attendant notice and comment procedures set forth in the APA.141 Auer deference, by providing deference to the agencies in interpreting their own regulations, encourages the issuance of vague regulatory guidance that provides agencies with the flexibility afforded informal guidance or adjudication, thereby raising concerns about fair notice to the affected constituencies and perhaps aggravating the problem of agency capture encouraged by Chevron.142 State Farm may exacerbate a preference for adjudication because it increased the cost of enforcement by regulation through its “hard-look” standard of review.143 Despite the fact that the Supreme Court expressed a preference for agency rulemaking in SEC v. Chenery,144 it held in that case that the decision to adjudicate is left to the agency’s discretion:

The function of filling in the interstices of the Act should be performed, as much as possible, through this quasi-legislative promulgation of rules to be applied in the future. But any rigid requirement to that effect would make the administrative process inflex-

139 See Manning, supra note 39, at 638–40. 140 See supra notes 34–39 and accompanying text. 141 See United States v. Mead Corp., 533 U.S. 218, 232–35 (2001) (applying the less deferential Skidmore standard of review to informal rules, in this case a customs service ruling); see also Christensen v. Harris Cty., 529 U.S. 576, 587 (2000) (stating that Skidmore deference is applicable to informal agency actions such as opinion letters, manuals, guidelines, and policy statements). See supra note 19 and accompanying text for a discussion of Skidmore deference. 142 See Manning, supra note 39, at 659–62; see also supra notes 32–33 and accompanying text. Whether, in fact, Auer deference has resulted in an epidemic of regulatory vagueness is questionable. See Daniel E. Walters, The Self-Delegation False Alarm: Analyzing Auer Deference’s Effects on Agency Rules, 119 Colum. L. Rev. L 85, 142 (2019) (providing an analysis of over 1200 agency rules that belies the claim that Auer deference will incentivize agencies to issue rules in vague terms). 143 See Manning, supra note 39 at 663–64; see also supra notes 84–86 and accompanying text. 144 332 U.S. 194, 196 (1947). Vol. 12, No. 2 Northeastern University Law Review 609

ible and incapable of dealing with many of the specialized problems which arise. . . . Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity. In other words, problems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule. Or the agency may not have had sufficient experience with a particular problem to warrant rigidi- fying its tentative judgment into a hard and fast rule. Or the problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule. In those situations, the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards. And the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency. 145

There is common-sense appeal to the idea that an agency is in the best position to determine the meaning of words that it itself promulgated. Moreover, deference to an agency’s interpretation of its own regulations is supported by rationales that have similarly supported Chevron deference. However, the distinctions between Auer and Chevron deference are significant and the doctrinal underpinnings of Auer are less sturdy than Chevron’s. The Kisor case laid bare Auer’s foundational weakness.

145 Id. at 202–03 (internal citations omitted). 610 Melone

III. Kisor: The Future of Auer & Chevron The Court’s decision in Kisor v. Wilkie did little to clarify when and how courts should employ Auer deference. Instead, the Ki- sor Court left uncertain the future of Auer deference and signaled the possibility that the Chevron doctrine’s life expectancy may be shorter than previously imagined. The Court’s decision in Kisor begs two questions. First, is there anything left of Auer deference, or has it been replaced, for all practical purposes, with something resembling Skidmore deference? Second, despite Chief Justice Roberts’s and Jus- tice Kavanaugh’s admonitions, does Kisor portend a limited shelf life for Chevron?146

A. Kisor James Kisor was a veteran of the Vietnam War and in Decem- ber 1982, filed a claim for disability benefits due to post-traumatic stress disorder (PTSD) with the Department of Veteran’s Affairs.147 In March of 1983, a psychiatric examination was obtained from an agency psychiatrist in which the examiner did not diagnose Mr. Ki- sor as suffering from PTSD but instead diagnosed him with two personality disorders, neither of which could serve as a basis for a service connected disability.148 Consequently, the Department of Veterans Affairs denied his claim in May 1983.149 Mr. Kisor submitted a request to reopen his case in 2006, and, during the pendency of this request, he submitted a psychiatric evaluation that did diagnose him with PTSD.150 A few months later, an examiner from the Veterans Administration made a similar diagnosis.151 Ultimately, Mr. Kisor was awarded disability benefits effective June 5, 2006, the date he requested the reopening of his case.152 Mr. Kaiser filed an administrative appeal asserting that the effective date of the award should

146 See supra note 231 and accompanying text. 147 Kisor v. Shulkin, 869 F.3d 1360, 1361 (Fed. Cir. 2017), aff’g Kisor v. McDonald, No. 14-2811, 2016 U.S. App. Vet. Claims LEXIS 73 (Jan. 27, 2016). David Shulkin replaced Robert McDonald as Secretary of Veterans Affairs in February 2017. Dave Phillips,Head of Veterans Health System is Trump’s Pick to Lead Veterans Affairs, N.Y. Times (Jan. 11, 2017), https://nytimes. com/2017/01/11/us/david-shulkin-secretary-department-veterans-affairs. html?searchResultPosition=6. 148 Kisor, 869 F.3d at 1361. 149 Id. at 1361–62. 150 Id. at 1362. 151 Id. 152 Id. Vol. 12, No. 2 Northeastern University Law Review 611 be May 1983, the date his initial claim for disability was denied.153 His appeal was rejected, a decision that was upheld by the United States Court of Appeals for Veterans Claims and by the Federal Cir- cuit.154 Mr. Kisor’s claim was reopened pursuant to a regulation that permits claims to be reopened on the submission of new and material evidence—in this case, the psychiatric diagnosis of PTSD.155 However, another regulatory provision provided for reconsideration of a claim. This second provision mandated the reconsideration of a case by the Veterans Administration if the agency “receive[d] or associate[d] with the claims filerelevant official service department records that existed” but that had not been part of the claims file when the agency originally decided the claim.156 In contrast to reopened claims, the effective date of reconsidered claims was retroactive to the date that the Veteran’s Administration received the previously decided claim or to the date the entitlement arose, whichever is later. 157 As a result, under this regulatory provision, the effective date of Mr. Kisor’s benefits would have been December 1982, the date the Veterans Administration received his claim.158 The case rested on the interpretation of the term “relevant” in the regulation cited above.159 In addition to the psychiatric evaluation that Mr. Kisor obtained in 2007, he submitted personnel records that documented his service in Vietnam.160 Mr. Kisor asserted that these records were “relevant” department service records, thereby entitling his claim to reconsideration under the regulation.161Ac- cording to Mr. Kisor, a record was relevant for this purpose if it had the tendency to make the existence of any fact of consequence to the determination at issue more or less probable.162 He argued that because his personnel records demonstrated his exposure to in-service stressors, they were therefore relevant.163

153 Id. at 1363. 154 Id. at 1361, 1369. 155 Id. at 1362 n.3. 156 Id. at 1363. 157 Id. (citing 38 C.F.R. § 3.156(c)(1) (2017)). 158 Id. at 1364.The effective date for awards that have been reconsidered is set forth in 38 C.F.R. § 3.156(c)(3). See id. at 1363. 159 Id. at 1365–66. 160 Id. at 1362. 161 Id. at 1363–64. 162 Id. at 1365–66. 163 Id. at 1366. 612 Melone

The government, in contrast, posited that records are not relevant for this purpose if, in light of other evidence, the agency had no obligation to consider the records.164 In this case, Mr. Kisor’s service record and its support for the existence of an in-service stressor was not in dispute at the time the original claim was examined; at issue was the existence or absence of PTSD.165 The court held that the term “relevant” was ambiguous because it was not clear whether “relevant” meant that the records had to cast doubt on an agency’s decision, that the records related more broadly to the claim, or that the records had to meet some other standard.166 The Federal Rules of Evidence provided support for the petitioner’s interpretation while the appellant found support for its interpretation in case law, legal dictionaries, and treatises.167 The court cited, inter alia, Seminole Rock and Auer, and held that the Vet- eran’s Administration’s interpretation of the regulation was neither plainly erroneous nor inconsistent with the applicable regulatory framework.168 Accordingly, the Federal Circuit upheld the government’s interpretation of the regulation.169 On June 26, 2019, the Supreme Court unanimously vacated the judgement of the Federal Circuit and remanded the case for further proceedings.170 Justice Kagan delivered the opinion of the Court in which Auer deference retained a role in construing regulations, but a role whose scope the Court limited:171 “The deference doctrine we describe is potent in its place, but cabined in its scope.”172 The majority of the Court noted that agency regulations may contain genuine ambiguities and as a result may not clearly address every issue or, in certain cases, might be susceptible to more than

164 Id. 165 Id. 166 Id. at 1367. 167 Id. at 1367–68. 168 Id. 169 Id. at 1369. 170 Kisor v. Wilkie, 136 S. Ct. 2400, 2424 (2019). Robert Wilkie replaced David Shulkin as Secretary of Veterans Affairs in July 2018. Sarah Mervosh, Senate Confirms Robert Wilkie as Veterans Affairs Secretary, N.Y. Times (July 23, 2018), https://www.nytimes.com/2018/07/23/us/politics/senate-confirms- robert-wilkie-veterans-affairs.html?searchResultPosition=3. Justice Roberts concurred in part as did Justice Gorsuch whose concurrence was joined by Justice Thomas and joined in part by Justices Kavanaugh and Alito. Id. at 2424–25, 2448. 171 Kisor, 136 S. Ct. at 2408. 172 Id. Vol. 12, No. 2 Northeastern University Law Review 613 one reasonable interpretation.173 These ambiguities could arise from careless drafting or from “well-known limits of expression or knowledge. The subject matter of a rule ‘may be so specialized and varying in nature as to be impossible’—or at any rate, impracticable—to capture in its every detail.”174 Finally, such ambiguities can surface when a problem arises that was not reasonably foreseeable at the time the regulation was drafted.175 The Court provided several examples of regulations whose application in a particular situation was susceptible to more than one reasonable interpretation.176 According to the majority, Auer deference “is rooted in the presumption that Congress would generally want an agency to play the primary role in resolving regulatory ambiguities.”177 Because Congress rarely is explicit with respect to whether it has assigned such interpretive responsibility to an agency or to the courts, the courts have had to presume Congress’s intent in this respect:

We have adopted the presumption—though it is always rebuttable—that “the power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.” Or otherwise said, we have thought that when granting rulemaking power to agencies, Congress usually intends to give them, too, considerable latitude to interpret the ambiguous rules they issue.178

The Court articulated three reasons in support of the afore- mentioned presumption. First, it stated that the agency that authored the rule is in a better position to determine its meaning than a court.179 According to the Court, the persuasiveness of this rationale is diminished if the ambiguity arises from the application of the regulation to an issue that the agency failed to anticipate when drafting the rule or when the interpretation is made long after the promulgation of the regulation.180 That said, the majority reasoned

173 Id. at 2410. 174 Id. at 2410 (quoting SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)). 175 Id. 176 Id. at 2410–11. 177 Id. at 2412. 178 Id. (quoting Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 151 (1991)). 179 Id. 180 Id. at 2412–13. 614 Melone that for contemporaneous interpretations, the point holds true.181 Second, the Court stated that Auer deference is supported by the notion that the resolution of genuine regulatory ambiguities often involves policy making.182 It explained that agencies have comparative advantages over the courts in conducting factual investigation and cost-benefit analysis, and in understanding scientific and technical matters.183 Moreover, in addition to their institutional expertise, the Court wrote that agencies are accountable politically for their policy decisions.184 Finally, the majority of the Court explained that deference to agencies’ interpretations of their own regulations helps to maintain uniformity in the application of law.185 It said that Congress prefers uniform administrative decisions to piecemeal litigation, which is susceptible to divergent conclusions, particularly for complex and highly technical matters.186 Thus, the Court stated, Auer deference promotes consistency in federal regulatory law. Thus having set forth the justifications for Auer deference, the Court then cautioned that such deference is not warranted in all cases and admitted that the Court had, in the past, resorted to such deference reflexively.187 Justice Kagan’s opinion proceeded to reinforce the inherent limits in the Auer doctrine. First, she reasoned for the Court, Auer deference is inapplicable unless the regulation at issue is genuinely ambiguous—a conclusion that a court should reach only after exhausting all “‘traditional tools’ of construction.”188 The application of such tools may require a “taxing inquiry” that “carefully consider[s] the text, structure, history, and purpose of a regulation” as if there was no agency on which a court could rely for guidance.189 Many “seeming ambiguities” will be resolved in this manner.190 Justice Kagan continued to explain that the rigorous application of interpretative tools will be useful even if such tools did not eliminate the seeming ambiguity in the regulations because

181 Id. at 2412. 182 Id. 183 Id. at 2413. 184 Id. 185 Id. 186 Id. at 2413–14. 187 Id. at 2414–15 (internal citations omitted). 188 Id. at 2415 (quoting Chevron U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837, 843 n.9 (1984)). 189 Id. 190 Id. Vol. 12, No. 2 Northeastern University Law Review 615 this analysis will establish the outer bounds of permissible interpretations of the regulation in question.191 Her opinion reasoned that the agency’s interpretation must come within this permissible zone of ambiguity.192 Justice Kagan gave lie to the notion that agency constructions of regulations are entitled to greater deference than their interpretations of statutes; she wrote for the Court that Semi- nole Rock and Auer do not provide greater deference to agencies than Chevron does.193Finally, the majority opinion stated that an agency’s reasonable interpretation of a genuinely ambiguous regulation is not necessarily entitled to Auer deference.194 As previously noted, Auer deference is predicated, in part, on congressional intent regarding who should resolve regulatory ambiguities.195 The Court then set forth “some especially important markers for identifying when Auer deference is and is not appropriate.”196 First, it reasoned that the interpretation at issue must be the agency’s authoritative or official position and not anad hoc statement that does not reflect the agency’s views on the matter.197 The majority, in a nod to bureaucratic realities, stated that authoritative interpretations need not emanate from agency heads or top agency officials but must emanate from actors understood to make authoritative policy and using vehicles that are understood to convey such policy.198 Second, the Court argued that Auer deference is appropriate if the agency’s interpretation implicates the agency’s substantive expertise—expertise which underpins the presumption of congressional delegation.199 According to the Kisor court, the case for deference diminishes when the subject matter at issue is far removed from the agency’s typical duties or if it falls within the scope of another agency’s authority.200 Therefore, it explained, deference is appropriate in technical matters or matters that sound in policy, but inappropriate in cases where the issue’s resolution more naturally resides with a court.201

191 Id. at 2415–16. 192 Id. 193 Id. at 2416. 194 Id. 195 Id.; see also supra note 117–18 and accompanying text. 196 Kisor, 139 S. Ct. at 2416. 197 Id. 198 Id. 199 Id. at 2417. 200 Id. 201 Id. 616 Melone

Finally, Justice Kagan’s opinion stated that Auer deference is appropriate only if the agency’s interpretation reflects its “‘fair and considered judgment.’”202 Consequently, the Court found that deference is not warranted for a “‘convenient litigation position’ or ‘post hoc rationalizatio[n] advanced’” to justify past action.203 Moreover, it explained that deference is unwarranted to a new agency interpretation that unfairly disrupts the expectations of regulated parties or imposes retroactive liability for longstanding conduct that the agency had not previously addressed.204 The majority thus provided a deference doctrine “not quite so tame as some might hope, but not nearly so menacing as they might fear.”205 The Court then explained its reasons for dismissing the petitioner’s contention that Auer and Seminole Rock should be abandoned. The petitioner had asserted that Auer deference is inconsistent with § 706 of the APA.206 As noted above, this provision states that courts shall determine the meaning and applicability of the terms of an agency action.207 The petitioner argued that Auer thwarts meaningful judicial review.208 The Court dismissed this notion for several reasons. First, the inquiry required of a court in order for it to determine whether deference is warranted constitutes “meaningful judicial review.”209 Second, it explained that § 706 does not specify that the standard of review to be employed by a court in reviewing agency action be a de novo standard.210 Auer deference is premised, in large part, on the presumption that Congress delegated considerable interpretive latitude to agencies; therefore, in situations where such presumption holds, deference to agency interpretations does not offend, but rather comports with, § 706.211 Finally, the Court said that the APA did not significantly disturb the standards of judicial review

202 Id. (internal citations omitted). Note that in King v. Burwell, the Court believed that Congress would not delegate matters that implicate health care policy to the IRS. See supra note 63 and accompanying text. 203 Kisor, 139 S. Ct. at 2417 (internal citations omitted). 204 Id. at 2417–18. 205 Id. at 2418. 206 Id. 207 Id.; see also supra note 36 and accompanying text. 208 Kisor, 139 S. Ct. at 2418–19. 209 Id. at 2419. 210 Id. 211 Id. The same rational supports Chevron deference in the face of similar attacks. Id. (citing Arlington v. FCC, 569 U.S. 290, 317 (2013) (Roberts, C.J., dissenting)). Vol. 12, No. 2 Northeastern University Law Review 617 at the time of its enactment.212 Seminole Rock was on the books at the time of its enactment and, in any event, de novo review of agency interpretations was not required by the law at that time.213 The petitioner had also asserted that the application of Auer deference to interpretive rules gives such rules the force and effect of law without having first been put through the rigors of the APA’s notice and comment procedures.214 The majority opinion, citing Pe- rez v. Mortgage Bankers Association, dismissed this contention because interpretative rules do not have the force and effect of law.215 It noted that agency enforcement actions must be brought pursuant to a legislative rule which has gone through the required notice and comment procedures and the final say on whether an agency’s interpretation of a legislative rule is valid rests with the courts.216 “No binding of anyone occurs merely by the agency’s say-so.”217 In fact, Auer deference is conditioned upon the same procedural values embodied in the APA and, therefore, “reinforces, rather than undermines, the ideas of fairness and informed decisionmaking at the core of the APA.”218 Justice Kagan’s opinion forcefully rejected the notion that Auer deference encourages agencies to issue vague rules. She noted that no evidence supports this assertion and common sense appears to lean in quite the opposite direction.219 Additionally, she explained that regulators want their regulations to be effective and, consequently, will strive for clarity in their rules.220 Moreover, she wrote that regulated parties prefer clarity to the uncertainty of vague rules and will push agencies to issue clear rules.221 Justice Kagan also

212 Id. 213 Id. at 2420. 214 Id. The notice and comments requirements do not apply to interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice. 5 U.S.C. § 553(b) (2012). The D.C. Circuit held that interpretive rules that revise an existing interpretive rule are subject to the Act’s notice and comment requirements. See Paralyzed Veterans of Am. v. D.C. Arena, L.P., 117 F.3d 579, 586 (1997). The Supreme Court scuttled the so-called Paralyzed Veterans doctrine in Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 95 (2015). 215 Kisor,139 S. Ct. at 2420. 216 Id. 217 Id. 218 Id. at 2420–21. 219 Id. at 2421. 220 Id. 221 Id. 618 Melone stated that vague rules reduce the likelihood that the policy choices embodied by those rules will survive future administrations who can use the previous administration’s lack of clarity to reinterpret the rules to their liking.222 Finally, Justice Kagan rejected the petitioner’s contention that Auer deference violates separation of powers principles.223 As was noted elsewhere in the opinion, the Kisor Court found that Auer deference does not usurp the interpretive role of the courts and the commingling of legislative and judicial functions within an agency has long been permitted.224 Justice Kagan’s opinion concluded with a discussion of why stare decisis weighed heavily against the petitioner in this case. She wrote that Auer deference has been applied in thousands of cases, that abandoning them would call into question many settled constructions of rules, and that deference is not “unworkable,” nor is it a “doctrinal dinosaur.”225 Having placed—“reinforced,” in the Court’s words—limitations on Auer deference, the Court held that the Federal Circuit “jumped the gun in declaring the regulation ambiguous.”226 More- over, the Supreme Court found that the Federal Circuit assumed too quickly that Auer deference should apply in the event that the regulation contained a genuine ambiguity.227 Accordingly, the Court vacated the judgment and remanded the case back to the Federal Circuit.228 Chief Justice Roberts, in a brief concurrence, opined that Auer deference, as reformulated by the majority’s decision, shares many similarities with the Skidmore standard of review preferred by Justice Gorsuch in his concurring opinion.229 In the Chief Justice’s opinion, cases in which Auer deference is warranted will largely overlap with those cases in which the failure of a court to be persuaded by an agency’s interpretation is unreasonable.230 Moreover, the Chief

222 Id. 223 Id. at 2421–22. 224 Id. at 2421–22. 225 Id. at 2422 (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989) and Kimble v. Marvel Entm’t, L.L.C., 576 U.S. 2409, 2411 (2015)). 226 Id. at 2423. 227 Id. at 2424. 228 Id. 229 Id. (Roberts, C.J., concurring). Justices Kavanaugh and Alito also shared this belief, although they would have preferred, like Justices Gorsuch and Thomas, that Auer be overturned. See id. at 2425, 2448 (Kavanaugh, J., concurring). 230 Id. at 2424–25 (Roberts, C.J., concurring). Vol. 12, No. 2 Northeastern University Law Review 619

Justice pointedly noted that the Court’s decision in this case did not touch on the issue of Chevron deference, which, according to the Chief Justice, raises issues distinct from Auer.231 The tenor of Justice Gorsuch’s concurrence, joined by Justice Thomas and, in part, by Justices Kavanaugh and Alito, is succinctly captured in one sentence: “Respectfully, I would stop this business of making up excuses for judges to abdicate their job of interpreting the law, and simply allow the court of appeals to afford Mr. Ki- sor its best independent judgment of the law’s meaning.”232 Justice Gorsuch took exception with Justice Kagan’s historical account of judicial deference to agency interpretations and stated that Seminole Rock, the genesis of Auer deference, was decided by the Court’s independent analysis of the provision at issue.233 Moreover, for many years after the decision, Seminole Rock deference was closely aligned with Skidmore and its multi-factor analysis.234 In contrast to Justice Kagan, Justice Gorsuch believed that Auer deference violated both § 706 and § 553 of the APA.235 Accord- ing to Justice Gorsuch, any time a court, “in deference to an agency, adopts something other than the best reading of a regulation,” it abdicates the duty of judicial review assigned to it by § 706.236 Moreover, Justice Gorsuch argued that agency interpretations of a substantive regulation are, for all practical purposes, new regulations.237 Justice Gorsuch wrote that Auer gives controlling weight to informal agency interpretations that provide the public with no advance notice or opportunity to comment and thus “supplies agencies with a shortcut around the APA’s required procedures for issuing and amending substantive rules.”238 Justice Gorsuch also believed that Auer deference “sits uneasily” with Article III of the Constitu- tion and “represents no trivial threat” to foundational separation of powers of principles.239 With respect to the policy arguments made in support of

231 Id. at 2425. Justices Kavanaugh and Alito agreed with the Chief Justice on this point. See id. at 2449 (Kavanaugh, J., concurring). 232 Id. at 2426 (Gorsuch, J., concurring). 233 Id. at 2427–28; see also supra notes 114–17 and accompanying text. 234 Kisor, 139 S. Ct. at (Gorsuch, J., concurring). See supra note 19 and accompanying text for a discussion of Skidmore deference. 235 See Kisor, 139 S. Ct. at 2432–35 (Gorsuch, J., concurring). 236 Id. at 2432 (Gorsuch, J., concurring). 237 Id. at 2434. 238 Id. 239 Id. at 2347–49. 620 Melone

Auer deference, Justice Gorsuch resorted to the admonition that regulations should be accorded their plain meaning and not a meaning based on the drafters’ intent.240 Furthermore, ascertaining the drafters’ intent is unlikely if the evidence of such intent is put forth by current agency personnel who may or may not share the views of the drafters.241 The utility of pre-enactment legislative history in ascertaining the meaning of a statute is subject to debate, Justice Gorsuch wrote, “[s]o why on earth would we give ‘controlling weight’ to an agency’s statements about the meaning of an already-promulgated regulation?”242 Justice Gorsuch was not moved by appeals to political accountability and technical expertise in support of deference; he noted that turning judges into “rubber stamps for politicians” is not a prudent exercise in political accountability, but rather is a surrender of “the judgment embodied in the Constitution and the APA that courts owe the people they serve their independent legal judgment about the law’s meaning.”243 Additionally, Justice Gorsuch wrote that with respect to technical expertise, courts should afford careful consideration of an agency’s views but remain open to competing evidence because experts are sometimes wrong.244 Finally, Justice Gorsuch dismissed the notion that Auer deference promotes consistency and uniformity in the law for two reasons. First, he stated that the judicial system can achieve uniform interpretations of regulations without resorting to Auer deference.245 Second, he stated that the disagreements regarding when and how to apply Auer have hardly worked to promote consistency and uniformity.246 Justice Gorsuch wrapped up his concurring opinion by providing five reasons for overturning Auer and to make Skidmore the standard for judicial review:247 he argued that (1) no persuasive rationale supports Auer; (2) Auer has not proven to be a workable standard; (3) Auer is out of step with the way courts normally interpret written laws; (4) the explosive growth of the administrative state has increased Auer’s potential for mischief; and

240 Id. at 2441. 241 Id. 242 Id. at 2442. 243 Id. 244 Id. at 2442–43. 245 Id. at 2443. 246 Id. 247 Id. at 2445–47. Vol. 12, No. 2 Northeastern University Law Review 621

(5) Auer has generated no serious reliance interests.248

B. Is Auer Viable and Should it be? In certain respects, the Kisor court’s iteration of the circumstances under which Auer deference is appropriate are unremarkable, not new, and perhaps speak to the reflexive nature in which courts had been resorting to Auer.249 In other respects, rigorous adherence to the Court’s strictures may morph Auer deference into a combination of the Chevron “extraordinary case” and State Farm or into a version of Skidmore deference—in essence no deference at all. At the very least, the Court has failed to introduce a semblance of certainty into whether and to what extent Auer deference remains applicable. Justice Kagan’s majority opinion held that Auer deference is inapplicable unless, after exhausting all “‘traditional tools’ of construction,” the regulation at issue is genuinely ambiguous—a conclusion that may require a court to carefully consider the “text, structure, history, and purpose of a regulation” as if there was no agency on which a court could rely for guidance.250 The predication of deference on the existence of a genuine ambiguity is hardly noteworthy and speaks more to the courts’ cavalier approach to deference than to the imposition of a new standard—a fact Justice Kagan herself admitted.251 The Court suggested a regulatory ambiguity exists when a regulation does not clearly address the issue at hand or is susceptible to more than one reasonable interpretation.252 However, is it con- ceivable that regulatory ambiguities exist after all traditional tools of construction have been exhausted? More likely, such tools will provide cover for the courts to discern the true intent of a regulation based on its structure, history, and purpose. The ambiguity will vanish in the face of a court’s opinion on the regulation’s best interpretation. Justice Kagan predicted that many ambiguities will be resolved at this point,253 and Justice Kavanaugh predicted most ambiguities will be thus resolved.254 The exception to Chevron deference that the Court carved out for extraordinary cases may be instructive

248 See id. at 2445–48. 249 See supra note 187 and accompanying text. 250 See supra notes 181–82 and accompanying text. 251 See supra note 187 and accompanying text. 252 See Kisor, 139 S. Ct. at 2410. 253 Id. at 2415. 254 Id. at 2448 (Kavanaugh, J., concurring). 622 Melone as to what lies in store for Auer. The Court in both FDA. v. Brown & Williamson Tobacco Corp and King v. Burwell refused to grant the FDA and IRS, respectively, Chevron deference because the importance of the issues in question belied the notion that Congress delegated the authority to resolve them to the affected agencies.255 The Court in both cases did exactly what Justice Kagan admonished the courts to do before concluding Auer deference is warranted: it resolved the ambiguity by resorting to tools of construction. In Brown & Williamson Tobacco, the Court explained in twenty-three pages of its opinion that Congress indeed had foreclosed the FDA from regulating tobacco products.256 Con- gress’s intent, as the Court exhaustively made evident, was clear, and it should have made no difference that this case was extraordinary.257 Likewise, after parsing the statute as a whole, the Court in King v. Burwell came to the conclusion that Congress intended to make tax credits available to enrollees on Federal Exchanges.258 Re- markably, the Court found an ambiguity in the statutory language that, as the dissent pointedly noted, did not exist, and then proceeded to apply canons of construction to resolve the very ambiguity it created.259 Perhaps Justice Kagan’s admission that Auer has been ap-

255 See supra notes 50, 61–63 and accompanying text. 256 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133–56 (2000). 257 Id. at 159–60. 258 See supra notes 64–71 and accompanying text. 259 The dissenting opinion, authored by Justice Scalia, acerbically disagreed with the majority’s conclusion and could be used as a primer in the canons of statutory construction. Justice Scalia believed that Congress could not have “come up with a clearer way to limit tax credits to State Exchanges than to use the words ‘established by the State.’” King v. Burwell, 135 S. Ct. 2480, 2497 (2015) (Scalia, J., dissenting). To be sure, context always is a relevant consideration in statutory interpretation but context “is a tool for understanding the terms of the law, not an excuse for rewriting them.” Id. Justice Scalia disagreed with the Chief Justice’s belief that the phrase “established by the State” was surplusage caused by the circumstances surrounding the passage of the legislation: redundant language, according to Justice Scalia, is commonly used by lawmakers but the majority rendered the phrase in question a nullity, thereby violating a virtually absolute principle of statutory construction. Id. at 2498. Moreover, Justice Scalia pointed out that this language was repeated seven times throughout the statute but was not repeated throughout the entire statute, and common sense dictates that the use of a phrase in some cases and another phrase in other cases indicates that the two phrases have contrasting meanings. Id. at 2499. He also wrote in his dissent that the majority’s interpretation rendered various statutory Vol. 12, No. 2 Northeastern University Law Review 623 plied reflexively may apply to the courts’ resort toChevron deference. After all, why should a searching inquiry to find Congress’s intent be limited to extraordinary cases? In Kisor, Justice Kagan set forth several “markers” for when Auer deference is appropriate, one of which is that the interpretation in question represent the agency’s fair and considered judgment.260 Thus, deference is not appropriate for an agency action that represents a convenient litigation position or a post hoc rationalization put forth to justify past action, that unfairly disrupts the expectations of regulated parties, or that imposes retroactive liability for longstanding conduct that the agency had previously ignored.261 These markers did not impose new limitations to the use of Auer deference, for they have been set forth by the Court in the past.262 Perhaps Justice Kagan was reiterating these limitations or perhaps she was gently reminding the courts that these markers are not to be reflexively dismissed. In any event, rigorous application of the “fair and considered judgment” standard moves Auer closer to State Farm– regardless of the merits of the position, it matters why and how that position was formulated. As Chief Justice Roberts and Justice Kavanaugh both noted, the limitations that the Court imposed on the use of Auer deference have caused such deference to closely resemble the standard of review preferred by Justice Gorsuch: the Skidmore standard.263 Under Skidmore, the deference due an agency depends on a number of factors including the thoroughness of the agency’s deliberations, the soundness of its reasoning, its consistency with earlier and later pronouncements, and other factors which provide the agency with the power to persuade.264 As noted earlier, Justice Scalia opined that Skidmore offered no deference whatsoever.265 The validity of courts granting Auer deference to agency interpretations of ambiguities surviving the application of the courts’ interpretive toolbox is questionable. Ambiguity of regulatory language may be a manifestation of opacity on the part of the agency in

provisions nonsensical. Id. 260 See supra note 202 and accompanying text. 261 See supra notes 203–04 and accompanying text. 262 See supra note 133 and accompanying text. 263 See Kisor v. Wilkie, 139 S. Ct. 2400, 2423 (2019) (Roberts, C.J., concurring); id. at 2447–48 (Kavanaugh, J., concurring). 264 See supra note 19 and accompanying text. 265 See United States v. Mead, 533 U.S. 218, 239–40, 259 (2001) (Scalia, J., dissenting). 624 Melone making its intent known. Alternatively, the agency may have failed to contemplate the issue because subsequent developments—technological or otherwise—have presented a fact pattern that the agency could not have foreseen. It is a common-sense assumption that the more critical and central an ambiguity is to a regulatory scheme, the more likely it is that the agency intended a particular result. Arguably, the case for Auer deference is strongest in such circumstances because the agency is in the best position to explain the intent of their own regulations. However, this rationale does not hold if the issue in question was not foreseen by the agency at the time the regulations were promulgated. However, even the strongest case for Auer deference is not strong enough to justify the continued existence of the doctrine. It should not matter why a regulation is vague. Justice Kagan’s opinion squarely addressed the co-existence of Auer and the judicial review provisions and notice and comment requirements of the APA in Ki- sor.266 Although Auer deference and Chevron deference are distinct, they are closely related. Chevron deference is due only if the regulations in question have been subjected to notice and comment.267 If the agency action involved a statutory interpretation, then Chevron deference would be unwarranted unless that interpretation was a final rule subject to notice and comment. However, if the agency action involved an interpretation of its own regulation, then Auer deference could be applied. The interspersing of a regulation between a statute and a regulatory interpretation should not entitle the latter to the application of a deferential standard of review to which it would not have been entitled had no intervening regulation been issued. For example, pursuant to the Wire Act, a person who is “engaged in the business of betting or wagering” and knowingly “uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest” is subject to criminal sanctions.268 Assume that in 1992 the Department of Jus- tice issued regulations after the requisite notice and comment that stated that fantasy sports contests are not considered to be a form of sports gambling and, therefore, are not subject to the Wire Act. The

266 See supra notes 206–13 and accompanying text. 267 See supra note 22 and accompanying text. 268 18 U.S.C. § 1084(a) (2018). Violations are subject to fines, imprisonment for no longer than two years, or both. Id. Vol. 12, No. 2 Northeastern University Law Review 625 regulatory language clearly applied the exemption to season-long fantasy contests, the only form of fantasy sports existent at the time. Twenty years later, the emergence of the internet and the ingenuity of the fantasy sports industry led to the rapid growth of daily fantasy sports contests.269 Assume that the regulatory language could be interpreted to exempt all fantasy sports contests from the Wire Act or, alternatively, to exempt only season-long fantasy contests. Assume further that the Department of Justice issues an opinion from the Office of Legal Counsel that states that the Wire Act does apply to daily fantasy sports contests. Assuming that such an opinion quali- fies as an official pronouncement of the Department of Justice, is the result of the Department’s fair and considered judgment, and that the regulation at issue is indeed ambiguous, should Auer deference be accorded such an opinion?270 If the Department had never issued the 1992 regulation, then the Department’s position as set forth in its formal opinion would not be entitled to Chevron deference because it was not subject to notice and comment. However, because in this hypothetical a regulation was issued suddenly, Auer deference would be warranted. Keep in mind that the regulation evidenced no intent regarding daily fantasy sports contests because they did not exist at the time that the regulation was issued. Both the regulations and the legal opinion interpret the application of the Wire Act, but only the regulations were issued subject to notice and comment. Justice Gorsuch’s objection to Auer deference due to the notice and comment requirements of the APA makes this point:

Auer is also incompatible with the APA’s instructions in § 553. That provision requires agencies to

269 Daily and season-long fantasy sports contests share the same basic premise but there are significant differences between the two types of contests. For a discussion of season-long and daily fantasy sports contests and the distinctions between the two, see Kevin Bonnett, Essential Strategies for Winning at Daily Fantasy Sports (2014). 270 Of course, it is by no means certain that such a pronouncement would pass muster as the Department’s fair and considered judgment. For example, given the punitive nature of the statute, any expansion of its application— particularly to activities that had existed for some time—may cause a court to reject the application of Auer. See, e.g., Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155–56 (2012) (rejecting Auer deference when the action in question would have imposed significant liability for actions earlier tolerated and thus create an unfair surprise). 626 Melone

follow notice-and-comment procedures when issuing or amending legally binding regulations . . . but not when offering mere interpretations of those regulations. An agency wishing to adopt or amend a binding regulation thus must publish a proposal in the Fed- eral Register, give interested members of the public an opportunity to submit written comments on the proposal, and consider those comments before issuing the final regulation. . . . By contrast, an agency can announce an interpretation of an existing substantive regulation without advance warning and in pretty much whatever form it chooses. . . . For all practical purposes, “the new interpretation might as well be a new regulation.” Auer thus obliterates a distinction Congress thought vital and supplies agencies with a shortcut around the APA’s required procedures . . . .271

Prior to the Court’s decision in Kisor, Professors Kristen Hickman and Mark Thomson noted that support for Auer deference on pragmatic grounds weakens if Auer is not simple and straightforward to apply.272 They provided a non-exhaustive list of issues that Auer deference has created.273 For example, they stated that courts have disagreed on the application of certain exceptions to Auer deference such as agency actions that represent “convenient litigating positions” or “post hoc rationalizations” or that result in “unfair surprise.”274 Unfortunately, the Court failed to resolve any of these issues. Arguably, the only question that the Court answered is how Auer can co-exist with the judicial review provisions of the APA. Unfortunately, even this answer has limited utility, for it failed to receive the support of the Chief Justice and the four concurring Jus- tices.275 The Court’s decision in Kisor has left Auer deference standing, but wobbly. The majority opinion requires that the agency ac-

271 Kisor v. Wilkie, 139 S. Ct. 2400, 2434 (2019) (Gorsuch, J., concurring). 272 Kristen E. Hickman & Mark R. Thomson, The Chevronization of Auer, Minn. L. Rev. Headnotes 103, 105 (2019). 273 Id. at 105–06. 274 Id. 275 Kisor, 139 S. Ct. at 2424 (Roberts, C.J., concurring); id. at 2425 (Gorsuch, J., concurring); id. at 2448 (Kavanaugh, J., concurring). Vol. 12, No. 2 Northeastern University Law Review 627 tion in question survive a gauntlet of inquiries that exhaust the judicial toolbox in order for the agency’s action to receive deference from a court. It remains to be seen whether the courts will employ their judicial toolbox vigorously or whether they will resort to a deferential standard after paying lip service to other interpretive tools.

C. Et Tu Chevron? Chief Justice Roberts and Justices Kavanaugh and Alito opined that the Court’s holding in Kisor did not implicate Chevron deference.276 However, Chevron is the elephant in the room—very difficult to ignore. Four Justices preferred that Auer be overruled, and their asserted grounds for doing so do not bode well for Chevron: these four Justices believed that Auer deference is unsupportable under both the judicial review and notice and comment provisions of the APA.277 Chevron deference does not run afoul of the notice and comment requirements because such deference is reserved for final rules issued after notice and comment.278 However, it is difficult to find a distinction between Chevron and Auer deference that would support the belief that only the latter abrogates the judicial review provisions of the APA. Justices Kagan, Ginsberg, Breyer, and Sotomayor find no incongruence between Auer deference—and presumably Chevron deference—and § 706 of the APA.279 Justices Kavanaugh, Thom- as, Gorsuch, and Alito believe otherwise. The Chief Justice failed to opine on this issue. It is difficult to envision any way that Chev- ron deference could survive a majority holding that such deference violates § 706 of the APA. As previously noted, in certain respects the Court merely re- iterated the conditions under which Auer deference is appropriate as its way of expressing its opinion that Auer has been applied without rigor and perhaps in too cavalier a manner.280 Justice Kagan’s admonitions regarding when and how Auer is to be applied could easily be said of Chevron deference. It seems unlikely that a genuine ambiguity is ascertainable under Chevron more readily than a genuine ambiguity under Auer. Why should a court ignore its full interpretative tool- kit in the former but not the latter? The rigor applied by the Court in

276 Id. (Roberts, C.J., concurring); id. at 2449 (Kavanaugh, J., concurring). 277 Id. at 2432, 2434. 278 See supra note 22 and accompanying text. 279 See supra notes 206–13 and accompanying text. 280 See supra note 187 and accompanying text. 628 Melone

“extraordinary cases” should extend to all ambiguities of statutory language. Chevron has been around for over thirty-five years and is a bedrock principle in administrative law. However, it is difficult to be sanguine about its prospects. The Court could weaken the importance of Chevron if it put some teeth in the non-delegation doctrine, thus preventing sweeping delegations of authority to the agencies. The Court, however, declined to do so in this very term.281

Conclusion Auer deference has not received the scholarly attention that Chevron has. The Supreme Court’s decision in Kisor brings welcome attention to such deference. The Court did not deliver a death blow to Auer deference, but it certainly limited its utility. It remains to be seen how the lower courts will apply the requirements that the Court set forth in Kisor, but it is possible that Auer deference will devolve into a Skidmore type deference. Moreover, Justice Gorsuch has made clear his aversion to deferential standards of review and their encroachment on judicial prerogatives. Three Justices share his opinion. Consequently, Chevron deference may wind up in the Court’s crosshairs in the near future.

281 See supra notes 34–35 and accompanying text. Vol. 12, No. 2 Northeastern University Law Review 629

Every Breath You Take, Every Move You Make, Facebook’s Watching You: A Behavioral Economic Analysis of the US California Consumer Privacy Act and EU ePrivacy Regulation

By Christie Dougherty*

* Northeastern University School of Law, Class of 2020; Certified Information Privacy Professional in Europe (CIPP/E). She would like to thank Professor Woodrow Hartzog for his advice and guidance on this Note’s topic, and Miranda Jang and Alex Nally for their constant support and feedback along the way. 630 Dougherty

Table of Contents I. Introduction �� 631 II. Regulatory Scheme ��633 A. Informed Consent in the ePrivacy Regulation ��635 B. Informed Consent in the California Consumer Privacy Act ��637 III. Informed Consent is Meaningless ��638 A. Information Asymmetry & the Paradox of Choice ��639 B. Wearing Down by Design �� 644 C. Nudging & Dark Patterns �� 648 IV. Why the ePrivacy Regulation and CCPA Will Never Work: Proposal for New Focus in Legislation �� 651 V. The Proposed Deceptive Experiences to Online Users Reduction (“DETOUR”) Act is Not a Beacon of Hope for US Regulation: Problems with Regulating Privacy by Design �� 654 VI. Conclusion �� 658 Vol. 12, No. 2 Northeastern University Law Review 631

I. Introduction At noon you meet with your friend over lunch. You both have your iPhones out on the table while you talk about everything from your dream vacation to Bali to your sneaking suspicion that your partner is going to propose soon. At eight o’clock that evening, as you begin winding down from your day, you scroll through Insta- gram and see someone in your feed posted a picture of a beautiful beach resort in Bali. As you hover, a brown bar pops up over the bottom of the picture saying, “Book Now.” How did Instagram know that? You switch to Facebook and notice a little blue advertisement for engagement rings on the side of your newsfeed. Creepy, you think to yourself, as you put your devices to sleep and prepare to do the same. Creepy is a term frequently used by someone having difficulty explaining technology that they do not understand; yet few people in these creepy situations take steps to try to learn how that technology works. For example, did you know that Facebook and its subsidiaries, including Instagram, collect information about your activities off of Facebook, regardless of whether you have a Face- book account or are logged into Facebook?1 Every move you make, Facebook’s watching you. Testifying before Congress in April 2018, Mark Zuckerberg, CEO of Facebook, stated that consumers themselves had “control” over their information thirty-five times, are empowered to make “choices” twice, and “choose” Facebook four times.2 Committee Member Ben Luján (D-NM) pointed out, “[I]t may surprise you that, on Facebook’s page, when you go to ‘I don’t have a Facebook account and would like to request all my personal data stored by Facebook,’ it takes you to a form that says, ‘Go to your Facebook page, and then, on your account settings, you can download your data.’”3 Yet, consumers still believe that if they de- lete their Facebook, Facebook cannot use and misuse their personal

1 Data Policy, Under Information from Partners, Facebook, https://www. facebook.com/policy.php (last visited Jan. 29, 2020) (“For example, a game developer could use [Facebook’s] API to tell [them] what games you play, or a business could tell [them] about a purchase you made in its store. [They] also receive information about your online and offline actions and purchases from third-party data providers who have the rights to provide [them] with your information.”). 2 See Facebook: Transparency and Use of Consumer Data: Hearing Before the Comm. of Energy & Commerce, 115th Cong. (2018) (testimony of Mark Zuckerberg, CEO, Facebook). 3 Id. at 119. 632 Dougherty information.4 This theme of technology controlling society, such as Face- book or the internet in general, has existed since at least the creation of 18th century mechanical clocks, which manifested social control through providing a new method of keeping records on human activity.5 With the advent of the internet, society was enraptured by the possibilities it could offer. In 1992, the internet was referred to as the “information highway.”6 By 1993, society began referring to the internet as “cyberspace.” The term “cyber” is derived from the Greek root for control.7 Today, the term “cyber” is often associated with privacy violations: cyberattack, cyberterrorism, cybersecurity.8 And, although cybersecurity and privacy are imperfect synonyms,9 privacy is often defined in terms of control.10 For the purposes of this note, privacy is defined as the ability of consumers to provide informed consent to the dissemination of their personal information so that they can better control their personal information. This definition of privacy suggests that informed consent is something that should be considered by regulations seeking to restrict companies that process and sell consumer data, by framing privacy as an “ability,” or positive right, rather than a “right,” or a negative right. Constructing the definition as an ability further acknowledges that the practical application of consent regimes is less than ideal. In Section II, this note will discuss the informed consent requirements in Europe’s proposed ePrivacy Regulation and compare them to the informed consent requirements in California’s recently passed California Consumer Privacy Act (“CCPA”). It will also discuss the different lenses that Europe and the United States

4 See The N.Y. Times, Why Leaving Facebook Doesn’t Always Mean Quitting | NYT, YouTube (Mar. 27, 2018), https://www.youtube.com/ watch?v=mE2fSvbmWFs; see also Alfred Ng, Facebook Still Tracks You After You Deactivate Account, CNET (Apr. 9, 2019), https://www.cnet.com/news/ facebook-is-still-tracking-you-after-you-deactivate-your-account/. 5 Jayne Gackenbach, Psychology of the Internet: Intrapersonal, Interpersonal, and Transpersonal Implications 15 (2d ed. 2006). 6 Id. at 22. 7 Id. at 22–23. 8 See generally Andrea M. Matwyshyn, CYBER!, 2017 BYU L. Rev. 1109 (2017) (discussing privacy conflation, incommensurability, and internet exceptionalism as three analytical flaws in “cyberized” legal scholarship). 9 Id. at 1135. 10 See Woodrow Hartzog, Privacy’s Blueprint: The Battle to Control the Design of New Technologies 63 (2018) (“Control has become the archetype for data protection regimes.”). Vol. 12, No. 2 Northeastern University Law Review 633 use to explain and regulate the right to privacy. In Section III, this note will explain that informed consent is not a realistic standard for regulations to apply to businesses that process and sell consumer data due to information asymmetries and the paradox of choice, wearing down by design, and nudging. These are techniques used to manipulate consumer behavior and lead consumers to a predestined choice based on a series of design decisions, rendering informed consent meaningless. This note proposes throughout Section III that privacy by design should be considered the gold standard approach to framing future federal legislation in the United States. Section IV discusses why the CCPA and ePrivacy Regulation will be ineffective in their respective approaches. Finally, Section V acknowledges the practical limitations of the privacy by design framework deriving from the First and Fourteenth Amendments.

II. Regulatory Scheme Samuel Warren and Louis Brandeis, in 1890, explored why privacy claims and the “right to be let alone” were inevitable.11 They discussed that although the privacy of manuscripts and publications could be seen as rights rooted in property law, once privacy developed into “[t]he principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, [privacy] is in reality not the principle of private property, but that of an inviolate personality.”12 Although they ultimately dismiss property and copyright laws as methods of analyzing privacy claims, privacy in the United States is still viewed as a property right.13 For example, while European privacy law views it as a civil right, the United States’ laws view privacy as a property right.14 The different lenses used between the two countries offer two different views of “possession” and “ownership” that may provide a useful

11 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 193 (1890). 12 Id. at 205. 13 See id. at 198–205; Detlev Zwick & Nikhilesh Dholakia, Contrasting European and American Approaches to Privacy in Electronic Markets: Property Right Versus Civil Right, 11 Electronic Mkts. 116, 117–18 (2001). 14 Compare Convention for the Protection of Human Rights and Fundamental Freedoms, art. 8, opened for signature Nov. 4, 1950, E.T.S. No. 5 (entered into force Mar. 9, 1953) [hereinafter European Convention on Human Rights], with U.S. Const. amend. IV. See generally Zwick & Dholakia, supra note 13. 634 Dougherty understanding for the informed consent provisions.15 “Possession is a physical circumstance, while ownership is socially constructed (i.e., property right),” but “[o]nly ownership bestows the right to exchange in the marketplace.”16 The ePrivacy Regulation defines the consumer as the person who has control and ownership over the personal information.17 Consumers under the ePrivacy Regulation, as under traditional Eu- ropean privacy law, are treated as “passive objects of protection from market forces,” as the Regulation seeks to protect consumers from companies placing unknown and unconsented to cookies on their computers.18 In contrast, the CCPA was created based on the assumption that privacy is a digital commodity that can be bought and sold on the internet with the consumer’s consent.19 Consumers under the CCPA are treated more as active, entrepreneurial participants in the digital marketplace.20

15 See Zwick & Dholakia, supra note 13, at 117. 16 Id. (emphasis omitted). 17 See id. at 117–18 (discussing the philosophical history of European privacy laws, including the EU Directive on Privacy Protection—the directive that preceded the GDPR); see also Council Preparatory Document for Proposal for a Regulation of the European Parliament and of the Council Concerning the Respect for Private Life and the Protection of Personal Data in Electronic Communications at 8–9, No. 14054/19 (Nov. 15, 2019) [hereinafter 2019 Council Preparatory Document for Proposed ePrivacy Regulation] (The first three recitals of the Regulation refer to the Charter of Fundamental Rights of the European Union, the concept of highly sensitive information and the GDPR, all of which seek to provide EU citizens ownership over their personal information.). 18 See Zwick & Dholakia, supra note 13, at 118 (discussing the different lenses applied to privacy laws in the US and EU); 2019 Council Preparatory Document for Proposed ePrivacy Regulation, supra note 17, at 55. 19 See Zwick & Dholakia, supra note 13, at 118 (discussing the different lenses applied to privacy laws in the US and EU); California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.120 (West 2018) [hereinafter CCPA] (“A consumer shall have the right, at any time, to direct a business that sells personal information about the consumer to third parties not to sell the consumer’s personal information.”); Rachel Haberman, CCPA 101: A Marketer’s Guide to the California Consumer Privacy Act, Jebbit (Feb. 7, 2019), https://www.jebbit. com/blog/ccpa-101-a-marketers-guide-to-the-california-consumer-privacy- act (“Data privacy legislation, and the data privacy movement as a whole, will force marketers to change their relationship with consumer data. The CCPA and other data privacy legislation effectively turn consumer data from a commodity into a privilege that can be revoked.”). 20 See Zwick & Dholakia, supra note 13, at 118 (discussing the different lenses applied to privacy laws in the US and EU); see also Mike Duffy, Worried About Your Data? The California Consumer Privacy Act Gives You New Tools, ABC10, https://www.abc10.com/article/news/worried-about-your-data-the- Vol. 12, No. 2 Northeastern University Law Review 635

In the European Union (“EU”), there are two distinct rights to privacy that are not found in the United States: the right for private and family life, and the right of protection of personal data.21 Conversely, the United States identifies informational privacy, the right to privacy in a person’s “houses, papers, and effects,” and de- cisional privacy in the person’s freedom from government interference.22 This contrast highlights the emphasis the two jurisdictions place on positive and negative rights. European laws are drawn as positive rights as they “require the state to act positively to promote the well-being of its citizens, rather than merely refraining from acting.”23 The United States draws its laws as negative rights, which operate to restrain the state from acting.24 European laws, and positive rights, assert claims to affirmative rights, whereas the United States’ laws, and negative rights, call for prohibitions.25 These distinctions between the United States’ and European laws lay the framework for the discussion on creating a privacy framework for the United States.26

A. Informed Consent in the ePrivacy Regulation The ePrivacy Regulation is a current proposal promulgated by the European Parliament that concerns “the respect for private life and the protection of personal data in electronic communications.”27 This proposal would modernize the previous Directive 2002/58/EC, which was a regulation on privacy and electronic communications.28 While the European General Data Protection Regulation (“GDPR”)

california-consumer-privacy-act-gives-you-new-tools/103-0ad01e28-0357- 4f00-86f9-cd53143c9ada (last updated Jan. 3, 2020) (“[The CCPA] requires the active participation of consumers.”). 21 See G.A. Res. 217A (III) A, Universal Declaration of Human Rights, art. 12 (Dec. 19, 1948); European Convention on Human Rights, supra note 14, art. 8; see also Charter of Fundamental Rights of the European Union, art. 7–8, 2012 O.J. (C326) 397. 22 See U.S. Const. amend. IV; Griswold v. Connecticut, 381 U.S. 479, 484–85 (1965). 23 Ran Hirschl, “Negative” Rights vs. “Positive” Entitlements: A Comparative Study of Judicial Interpretations of Rights in an Emerging Neo-Liberal Economic Order, 22 Hum. Rts. Q. 1061, 1071–72 (2000). 24 Id. 25 Id. 26 See discussions infra Sections IV and V. 27 See generally 2019 Council Preparatory Document for Proposed ePrivacy Regulation, supra note 17. 28 Id. at 1. 636 Dougherty protects personal data, the ePrivacy Regulation would “ensure[] the confidentiality of communications, which may also contain non-personal data and data related to a legal person.”29 The ePrivacy Regulation would adopt the GDPR’s definition of consent: “any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.”30 Further, the ePrivacy Regulation would adopt the GDPR’s conditions for consent, including: “the controller shall be able to demonstrate that the data subject has consented to processing of his or her personal data;” the data subject’s consent should be requested in a way that is “presented in a manner which is clearly distinguishable from other matters, in an intelligible and easily accessible form, using clear and plain language;” the data subject has the right to withdraw his or her consent at any time and “[i]t shall be as easy to withdraw as to give consent;” and “[w]hen assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.”31 The ePrivacy Regulation, however, would go a step further than the GDPR by also defining consent as “using the appropriate technical settings of a software placed on the market permitting electronic communications, including the retrieval and presentation of information on the internet.”32 Under the ePrivacy Regulation, data subjects must provide consent in most cases to “[t]he use of processing and storage ca-

29 Proposal for a Regulation of the European Parliament and of the Council Concerning the Respect for Private Life and the Protection of Personal Data in Electronic Communications and Repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications), at 5, (COM 2017) 10 final (Jan. 10, 2017) [hereinafter 2017 Proposed ePrivacy Regulation]. 30 EU Regulation 2016/676, of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation), art. 4(11), 2016 O.J. (L 119) 34 [hereinafter GDPR]; see also 2019 Council Preparatory Document for Proposed ePrivacy Regulation, supra note 17, at 55 (addressing “consent” in Article 4a). 31 GDPR, supra note 30, art. 7, at 37; see also 2019 Council Preparatory Document for Proposed ePrivacy Regulation, supra note 17. 32 Compare 2019 Council Preparatory Document for Proposed ePrivacy Regulation, supra note 17, at 55, with GDPR, supra note 30, art. 4(11), at 34. Vol. 12, No. 2 Northeastern University Law Review 637 pabilities of terminal equipment and the collection of information from end-users’ terminal equipment, including about its software and hardware, other than by the end-user concerned.”33 This means that data subjects must consent to companies placing cookies34 on their devices. When non-essential information is collected by terminal equipment in order to connect to another device or to network equipment, “a clear and prominent notice shall be displayed inform- ing of, at least, the modalities of the collection, its purpose, the person responsible for it and the other information required under” the GDPR.35 These two provisions mostly focus on targeting internet sites that place cookies on the end-user’s computer without their knowledge or consent.

B. Informed Consent in the California Consumer Privacy Act The CCPA also incorporates many of the same privacy concepts as the European Union’s GDPR. The CCPA, however, opera- tionalizes these European ideas through the property lens, where consent is framed as a series of negative rights that require consumers to opt-out of data collection and sharing. 36 Privacy policies must incorporate informed consent under the CCPA. A privacy policy shall be “reasonably accessible to consumers” and outline the consumer’s rights and “one or more designated methods for submitting requests” for information regarding the processing of the consumer’s data.37 It must also include “a list of the categories of personal information it has collected about consumers” that describes the personal information collected; “[a] list of the categories of personal information it has sold about consumers” that describes the personal information collected or a disclosure that the business has not collected information; and “[a] list of the categories of personal information it has disclosed about consumers for a business purpose” that describes the personal information disclosed, or a disclosure that the business has not disclosed any

33 2019 Council Preparatory Document for Proposed ePrivacy Regulation, supra note 17, at 66. 34 See discussion infra Section III.B about cookies. 35 2019 Council Preparatory Document for Proposed ePrivacy Regulation, supra note 17, at 67. 36 See Zwick & Dholakia supra note 13 (discussing the different lenses applied to privacy laws in the US and EU); see also CCPA, supra note 19, §§ 1798.110, 1798.115, 1798.120, 1798.125(b)(1), 1798.130(a)(5)(A) –(C), 1798.135(a) (2). 37 CCPA, supra note 19, § 1798.130(a)(5)(A)–(C). 638 Dougherty information.38 The CCPA assumes that the information provided to the consumer in these privacy policies should be enough, then, for the consumer to opt-in or opt-out to certain described business activities. Consumers are permitted to enter into opt-in financial incentive agreements with businesses to sell their personal information when the agreement “clearly describes the material terms of the financial incentive program, and which may be revoked by the consumer at any time.”39 Businesses that are selling personal information to third parties are required to provide notice to consumers that their information is being sold.40 The consumer has the right to opt-out of the sale of their personal information by directing the business to cease sales.41 Unless the business later receives express authorization for the sale of the consumer’s information, the business must refrain from selling the consumer’s information indefinitely.42 The fatal flaw of the CCPA and the ePrivacy Regulation is their reliance on informed consent. Consumers cannot effectively evaluate the privacy tradeoffs and do not have all of the information that they need to make this assessment. Consequently, privacy can only be effectively regulated if it does not rely on consent. Although the ePrivacy Regulation better regulates the methods by which companies get informed consent from consumers, neither regulation is bold enough to remove consent altogether.

III. Informed Consent is Meaningless Privacy decisions are irrational, and consumers’ preferences can be easily swayed. Consumers may be willing to exchange privacy for “convenience, functionality, or financial gain, even when the gains are very small.”43 When faced with privacy-sensitive decisions, these seemingly irrational consumer preferences can by swayed through three distinct concepts: 1) information asymmetry; 2) bounded rationality; and 3) psychological distortions.44

38 Id. 39 Id. at § 1798.120(c). 40 Id. at § 1798.120(b). 41 Id. at § 1798.120(a). 42 Id. at § 1798.120(c). 43 Serge Egelman et al., Choice Architecture and Smartphone Privacy: There’s a Price for That, in The Economics of Information Security and Privacy 211, 216 (Rainer Böhme ed., 2013). 44 Alessandro Acquisti, Privacy in Electronic Commerce and the Economics of Immediate Gratification, EC ’04: Proc. 5th ACM Conf. on Electronic Com., May Vol. 12, No. 2 Northeastern University Law Review 639

The two different informed consent structures found in the CCPA and ePrivacy Regulation do not reflect the realities of the internet and the consumers using it. Both the CCPA and the ePrivacy Regulation attempt to require privacy policies that are easily accessible and understandable by the consumer in order for the consumer to better provide informed consent; yet these laws, and privacy policies in general, assume all consumers have the same level of understanding, thereby creating information asymmetries. Further, in 2012, the median length of a privacy policy was 2,514 words and would take a consumer seventy-six work days to read every policy they encountered.45 Also, as the European Union saw with the implementation of the GDPR, consumers often experience a wearing down by the way these regulations and policies are designed to get informed consent.46 Further, the ways in which websites are designed make consumers believe they are required to give consent, which present ethical and consumer protection problems.

A. Information Asymmetry & the Paradox of Choice Facebook purports that it seeks to enhance consumer’s understanding of their privacy settings throughout all aspects of its platform.47 People are often surprised, however, when they are scroll- ing through their newsfeed on Facebook or Instagram and receive an advertisement for a product they have only talked about with their friends in person.48 If consumers had all the information, would they

2004, at 21. 45 Alexis C. Madrigal, Reading the Privacy Policies You Encounter in a Year Would Take 76 Work Days, Atlantic, (Mar. 1, 2012), https://www.theatlantic.com/ technology/archive/2012/03/reading-the-privacy-policies-you-encounter-in- a-year-would-take-76-work-days/253851/. 46 See Jessie Yeung, Too Many GDPR Emails? Here’s Some Light Relief, CNN: Business (May 24, 2018), https://money.cnn.com/2018/05/24/technology/ gdpr-jokes-memes-twitter/index.html. The GDPR required companies to request permission to continue sending emails to consumers, inundating consumers with emails “like the ramblings of a desperate ex-boyfriend.” Sarah O’Connor (@sarahoconnor_), Twitter (May 23, 2018, 7:25 AM), https:// twitter.com/sarahoconnor_/status/999249873827483648. 47 See Sheera Frenkel & Natasha Singer, Facebook Introduces Central Page for Privacy and Security Settings, N.Y. Times (Mar. 28, 2018), https://www.nytimes. com/2018/03/28/technology/facebook-privacy-security-settings.html (citing Mark Zuckerberg, Facebook (Mar. 21, 2018), https://www.facebook.com/ zuck/posts/10104712037900071). See generally Association V.A.A., Mark Zuckerberg Testifies on Capitol Hill. April 10, 2018., YouTube (Apr. 10, 2018), https://www.youtube.com/watch?v=XmGbfsWMIZ4. 48 Facebook owns Instagram, WhatsApp, Occulus VR, FriendFeed, and LiveRail. 640 Dougherty still be as surprised? Information asymmetry is common between consumers and internet companies. Consumers are constantly asked to consent to privacy policies, cookies, and email marketing, and must do so by assessing each situation individually and guessing what the privacy tradeoffs will be.49 Even in scenarios where the tradeoffs appear or should appear obvious, people perceive the risks differently and assess their own preferences in accordance with the risks presented.50 Risk perception is also highly malleable: often consumers are influenced based on people who have better insight into consumer decision-making, and consumers’ subsequent decisions are molded by those individuals.51 “Much as seat belts in cars are justified by the fact that people’s natural driving habits (as well as those of other drivers) create an unacceptable level of risk, privacy interventions can be justified by similar limitations of individuals’ abilities to manage privacy-related risks.”52 Additionally, privacy harms and risks are difficult for consumers to properly assess because the harms are diverse and dependent on the context.53 Studies have examined how consumers make decisions, which can be used to help them make more rational decisions based on the risks and benefits of a transaction.54 In one study, consumers were asked to purchase items using “Privacy Finder, a ‘privacy-en-

Nathan Reiff, Nathan Reiff, Top Companies Owned by Facebook, Investopedia (Mar. 1, 2019), https://www.investopedia.com/articles/personal- finance/051815/top-11-companies-owned-facebook.asp. 49 Hartzog, supra note 10, at 37. 50 Id. 51 Id. at 36–37. 52 Laura Brandimarte et al., Misplaced Confidences: Privacy and the Control Paradox, 4 J. Soc. Psychol. & Personality Sci. 340 (2012). 53 Hartzog, supra note 10, at 37. 54 Julia Gideon et al., Power Strips, Prophylactics, and Privacy, Oh My!, 2006 Proc. Second Symp. on Usable Privacy & Security, https://cups.cs.cmu. edu/soups/2006/proceedings/p133_gideon.pdf (concluding that “when privacy policy comparison information is readily available, individuals may be willing to seek out more privacy friendly websites and perhaps even pay a premium for privacy depending on the nature of the items to be purchased.”); Janice Tsai et al., The Effect of Online Privacy Information on Purchasing Behavior: An Experimental Study, 2007 Int’l Conf. on Info. Sys. Proc. 20, https:// www.econinfosec.org/archive/weis2007/papers/57.pdf (concluding that providing accessible privacy rating icons on an online search engine reduced information asymmetry between merchants and consumers and “that once privacy information is made more salient, some consumers are willing to pay a premium to purchase from more privacy protective websites.”). Vol. 12, No. 2 Northeastern University Law Review 641 hanced’ search engine that displays search results annotated with the privacy policy information of each site.”55 These search results provided consumers with more complete information about the privacy risks and the study found that this made the tradeoffs easier for consumers to compute.56 Timing and placement are crucial to closing the gap of information asymmetry.57 For example, another study tested timing and placement of privacy indicators when shopping online, and concluded that both privacy-conscious and “non-privacy-conscious shoppers will pay more for privacy when indicators are presented before visiting websites rather than after the user has already selected a website to visit.”58 If a consumer were to sit down and read every single privacy policy they were presented, it would take them over seventy-six business days.59 Most of these privacy policies highlight that the consumer is in “control” of their data and information and that the consumer has the “choice” to use the service and sign up for the website.60 This false sense of empowerment is the companies’ way of having a “positive spin placed upon the structural reallocation of privacy.”61 The consumer is empowered to exercise control over how

55 Julia Gideon et al., supra note 54, at 3; see also Janice Tsai et al., supra note 54. 56 See, e.g., Julia Gideon et al., supra note 54; Janice Tsai et al., supra note 54. 57 See, e.g., The Economics of Information Security and Privacy, supra note 43, at 217. 58 Id. 59 Madrigal, supra note 46. Also note that this article was published in 2012, indicating that possibly 8 years later it would take consumers even longer. 60 See Hartzog, supra note 10 at 63–64 (“Control is an industry favorite privacy tool as well. To hear tech companies tell it, the answer to all modern privacy problems is just to give users more control. . . . People were said to have ‘control’ over their information when they were notified about a company’s information collection, use, and disclosure practices and given a choice to opt out (usually by not using the service). . . . The most salient example of this notice and choice regime is the ubiquitous privacy policy: that dense, unreadable, boilerplate text tucked away in some corner of practically every website and application on the Internet.”); Policy Principles for a Federal Data Privacy Framework in the United States: Hearing Before the S. Comm. On Commerce, Sci., & Transp., 116th Cong. 3 (2019) (testimony of Prof. Woodrow Hartzog) (identifying that the traditional approach to data protection results in “some combination of ‘privacy self-management’ concepts like control, informed consent, transparency, notice, and choice. These concepts are attractive because they seem empowering. They promise to put people in charge of what happens to their personal data. While notice and choice regimes enable the collection, use, and sharing of personal information, consumers are left . . . exposed and vulnerable.”). 61 Neil Richards & Woodrow Hartzog, Privacy’s Trust Gap, 126 Yale L.J. 1181, 642 Dougherty their information is collected and used, but, ultimately, that means that they also bear the responsibility of “bad choices, even when . . . good options are limited or nonexistent.”62 The paradox of choice exists “such that people who experience more perceived control over limited aspects of privacy sometimes respond by revealing more information, to the point where they end up more vulnerable as a result of measures ostensibly meant to protect them.”63 Privacy can be seen as “flatter[ing] [the] sense of autonomy and accommodat[ing] . . . diverse notions of privacy and preferences for disclosure,”64 yet when privacy policies are framed this way consumers are left more vulnerable. Facebook’s Data Policy in the United States (“Data Policy”) is a prime example of information asymmetry and the paradox of choice. The Data Policy explains in clear and relatively simple65 terms that it collects all of the following information about consumers: communication and other information while using the product, “including when you sign up for an account, create or share content, and message or communicate with others;”66 content metadata (like photo location or content);67 “people, [p]ages, accounts, hashtags and groups you are connected to and how you interact with them” across all of Facebook’s platforms; contact information from devices that you upload, sync or import content from;68 “types of content you view or engage with; the features you use; the actions you take; the people or accounts you interact with; . . . the time, frequency and duration of your activities;”69 “payment information, such as your credit or debit card number and other card information; other account and authentication information; . . . billing, shipping, and contact details;”70 information and communications that your network provides across all of Facebook’s platforms;71 information

1203 (2017) [hereinafter Privacy’s Trust Gap]. 62 Id. 63 Laura Brandimarte et al., supra note 52. 64 See Privacy’s Trust Gap, supra note 62. 65 There are a few terms that would still be unclear and are not explained in a manner that an ordinary consumer would understand, including the use of terms like API and SDK. Data Policy, Facebook, https://www.facebook.com/ policy.php (last visited Apr. 28, 2019). 66 Id. 67 Id. 68 Id. 69 Id. 70 Id. 71 Id. Vol. 12, No. 2 Northeastern University Law Review 643 about your device’s attributes, operations, identifiers, signals, settings, network and connection, and cookie data; information provided about your activities off Facebook by advertisers, app developers and publishers “including information about your device, websites you visit, purchases you make, the ads you see, and how you use their services,” whether or not you have a Facebook account or are logged into Facebook.72 In short: every breath you take, every move you make, Facebook is watching you. In order to make the consumer feel like they have power over their data, the Data Policy also uses the word “control” six times73 and “choose” thirteen times,74 but “the reality is that many consumers can’t possibly understand how their data is being used and abused, and they don’t have meaningful control when forced to choose between agreeing to turn over their data or not [using Face- book].”75 Interestingly to this point, Facebook hides the fact that they track consumers whether or not they have an account.76 This is probably the most egregious policy, and is listed one-half to two- thirds of the way through the Data Policy, so that by the time the consumer (if they ever take the time to read the policy) gets there, “the content is more familiar and the reader is more likely to skim information quickly. Thus, putting a point in the middle encourages the reader to skim the point quickly, with less involvement.”77 With regard to the ePrivacy Regulation particularly, “studies show that even if [] 90% of experienced internet users claim to know cookies, only [] 15% can correctly answer any specific questions about them.”78 In a study of sophisticated Dutch users who

72 Id. 73 Id. 74 Id. 75 Neema Singh Guliani & Jay Stanley, Three Big Battlegrounds in the Coming War over National Privacy Legislation, ACLU (Oct. 23, 2018), https://www.aclu.org/ blog/privacy-technology/internet-privacy/three-big-battlegrounds-coming- war-over-national-privacy. 76 Data Policy, Facebook, https://www.facebook.com/policy.php (last visited Apr. 28, 2019). 77 Beyond the Basics: A Text for Advanced Legal Writing 200 (Mary Barnard Ray & Barbara J. Cox eds., 3d ed. 2012); see also Data Policy, Facebook, https://www.facebook.com/policy.php (last visited Apr. 28, 2019). 78 Joasia A. Luzak, Privacy Notice for Dummies?: Towards European Guidelines on How to Give “Clear and Comprehensive Information” on the Cookies’ Use In Order to Protect the Internet User’s Right to Online Privacy, 3 J. Consumer Pol’y 547, 547 (2014) (citing Anthony D. Myiyazaki, Online Privacy and the Disclosure of 644 Dougherty were regulated by the 2012 version of the Directive, respondents answered on average four out of eight statements correctly about cookies, and only 0.2% of respondents answered all statements correctly.79 The study found that “[m]ost of the misunderstandings regarded the idea that cookies save your browsing history, that cookies are person-based and that computers will slow down when cookies are not regularly removed.”80

B. Wearing Down by Design The concept of design is critical to developing privacy laws, as it can shape and erode consumers’ reasonable expectations of privacy.81 Design features center around altering how a product is brought into the market by thinking about how users will act and interact with the product from the beginning.82 It involves getting software developers and entrepreneurs to think about privacy needs and expectations before even marketing a product. When signing up for any web service or application, consumers are always asked to consent to the service’s privacy practices, yet it is common knowledge that consumers do not read them. This practice and culture is so common in the United States, it has become the subject of satire on cultural norms.83 Requiring consent works best in situations where consumers infrequently make such decisions,84 as having a tsunami of consent emails renders them

Cookie Use: Effects on Consumer Trust and Anticipated Patronage, 27 J. Pub. Pol. & Marketing 19, 21 (2008)). 79 Edith G. Smit, et al., Understanding Online Behavioural Advertising: User Knowledge, Privacy Concerns and Online Coping Behaviour in Europe, 32 Computers & Hum. Behav. 15, 17, 19 (2013). The ePrivacy Regulation modernizes the previous ePrivacy Directive, see supra Section II.A. 80 Edith G. Smit, et al., supra note 79, at 19. 81 Hartzog, supra note 10, at 6. 82 Dr. Ann Cavoukian suggests that there are seven foundational principles to privacy by design: 1) proactive, not reactive; preventative not remedial; 2) privacy as the default; 3) privacy embedded into design; 4) full functionality— positive-sum, not zero-sum; 5) end-to-end security—lifecycle protection; 6) visibility and transparency; and 7) respect for user privacy. See Ann Cavoukian, Privacy by Design: The 7 Foundational Principles: Implementation and Mapping of Fair Information Practices (2011), https://iab.org/wp-content/IAB- uploads/2011/03/fred_carter.pdf. 83 See, e.g., South Park: HUMANCENTiPAD (Comedy Central broadcast Apr. 27, 2011) (depicting a satirical world where all but three people in a town read the updates to Apple’s privacy policy). 84 Neil Richards & Woodrow Hartzog, The Pathologies of Digital Consent, 96 Wash. U. L. Rev. 1461, 1461 (2019) [hereinafter The Pathologies of Digital Consent]. Vol. 12, No. 2 Northeastern University Law Review 645 useless because consumers cannot be expected to read them all.85 Pew Research Center found that apps can seek 235 unique types of permissions (consent requests) from smartphone users, with most apps averaging five permissions before a user could install it.86 Con- sumers will often “cheerfully disclose information about themselves to obtain particular transactional and relational advantages without pausing to consider the longer-term consequences.”87 For example, Sören Preibusch, Kat Krol, and Alastair R. Beresford recruited 1,500 web users for a study where they asked for “ten items of identity . . . of varying levels of sensitivity.”88 Users were compensated for participation in order to ascertain the costs of privacy invasion.89 They ensured that participants understood that the additional disclosures were voluntary and that the information that they were providing was considered sensitive data.90 Nevertheless, their study revealed that “[p]articipants regularly completed more form fields than required, or provided more details than requested.”91 They also observed that “making [certain] fields mandatory jeopardised [sic] voluntary disclosure for the remaining optional fields,” finding that “as the number of mandatory fields in a form is increased, the total number of completed fields reduces”.92 Consumers are also worn down and overwhelmed with advertisements on social media. Behavioral advertisements have become a norm, and consumers have accepted it as creepy because privacy policies are too difficult to understand. Marketers’ and web sites’ privacy policies do not adequately explain that super specific advertisements are placed in front of consumers using a combination of consumer data points that were bought and sold within

85 See Yeung, supra note 46 (discussing how the GDPR consent requests inundated consumers with emails, with one European citizen tweeting that they were allowing “all the GDPR emails [to] wash over me”). 86 Michelle Atkinson, Apps Permissions in Google Play Store, Pew Res. Ctr. (Nov. 10, 2015), https://www.pewresearch.org/internet/2015/11/10/apps- permissions-in-the-google-play-store/; see also Hartzog, supra note 10, at 66. 87 Julie E. Cohen, Irrational Privacy, 10 J. Telecomm. & High Tec. L. 241, 242 (2018) (citing Scott R. Peppet, Unraveling Privacy: The Personal Prospectus and the Threat of a Full Disclosure Future, 105 NW. U. L. REV. 1153, 1157–58 (2011)). 88 The Economics of Information Security and Privacy, supra note 43, at 183, 202–03. 89 Id. 90 Id. 91 Id. 92 Id. at 183, 203. 646 Dougherty

200 milliseconds.93 There is no utility value in reading such privacy policies since they are ineffective at explaining to the consumer how their information was used in a way that they can understand. For example, companies use internet behaviors in order to create different user segment groups and then show certain categories of consumers targeted advertisements.94 These companies may track online behaviors through the use of cookies,95 which “exchange . . . small strings of text characters, [and] information about the user’s interaction at a particular visited Web site can be sent from the site to the user’s hard drive and back when the user revisits the site.”96 Cookies are not tied to an individual’s browser history,97 but rather a user’s clicks, including navigating from site to site, registering for newsletters, purchasing products, and perusing social media, are tracked by two different groups: first-parties and third-parties.98 First-party cookies embody the original intent of cookie development—they enhance a user’s experience and interaction on a particular site by allowing the user to return at a later time and pick up browsing exactly where they left off.99 First-party cookies allow consumers to fill their shopping cart on an online retailer and later come back to purchase the contents.100 They also allow consumers to “purchase multiple items online in the same transaction. [Without cookies,] [e]ach time [consumers] add[] something to the cart from another page on the site, it would be treated as a new order.”101 On the other hand, third-party cookies are where privacy concerns multiply. Third-party cookies are often referred to as “tracking cookies” and monitor a user’s clicks from site to site, purchase to purchase.102 Third-party cookies place behaviorally targeted advertisements in

93 Real-Time Bidding (RTB): The Complete Guide, Smaato, https://www.smaato. com/resources/real-time-bidding/ (last visited Apr. 20, 2019). 94 Smit, et al., supra note 79, at 17. 95 Id. at 15. 96 Janice C. Sipior et al., Online Privacy Concerns Associated with Cookies, Flash Cookies, and Web Beacons, 10 J. Internet Com. 1, 2–3 (2011). 97 See Smit et al., supra note 79, at 19. 98 Sipior et al., supra note 96, at 3, 7–8; see infra Section II.B (discussing sales to third parties under the CCPA). 99 Sipior et al., supra note 96, at 2. 100 Id. at 8. 101 First-party cookie, PC Mag., https://www/pcmag.com/encyclopedia/ term/43229/first-party-cookie (last visited May 1, 2019). 102 See Smit et al., supra note 79, at 15; see also Sipior et al., supra note 96, at 3 (2011). Vol. 12, No. 2 Northeastern University Law Review 647 front of consumers.103 Slowly, however, third-party cookies are becoming obsolete as marketers have developed complex algorithms that can help them understand how the consumer feels in real-time, allowing them to go deeper into the minds of consumers than ever before.104 That Insta- gram advertisement for a product you were only just talking about was more likely a result of real-time bidding algorithms (“RTB”). To combat the dismal click-through rate on advertisements (0.11% globally), and to make “the digital display of advertising more ROI friendly,” ad targeting companies use RTB functions which can now, “in real-time, capture, analyze and determine the ‘audience’ arriving on the Web site and serve targeted advertisements and communication.”105 This method of behavioral targeting has been adopted by industry leaders including Google, Yahoo, and Facebook.106 It is impossible for a consumer to understand the technical underpinnings that are masked in privacy policies.107 Additionally, marketers and companies want the consumer to exert as little effort as possible when making a purchase on their website. In order to alleviate the pain of filling out the fields in the transaction, marketers focus on “lowering the cognitive and mechanical effort of completing forms” either through label posi- tioning, the way in which mandatory fields are indicated, or “unified text field[s] to reduce tabbing and mouse-keyboard switching.”108 They want consumers to divulge as much information as possible by limiting the number of times a consumer’s hands are lifted off

103 See Smit et al., supra note 79, at 15; see also Sipior et al., supra note 96, at 2. 104 See Cognizant, Peering into the Future of Digital Advertising 4 (2014), https://www.cognizant.com/InsightsWhitepapers/peering-into- the-future-of-digital-advertising-codex1018.pdf. 105 Id. ROI (return on investment) measures the efficiency of the investment as a ratio of profit to cost of the investment. James Chen, Return on Investment (ROI), Investopedia, https://www.investopedia.com/terms/r/ returnoninvestment.asp (last updated Jan. 22, 2020). 106 Cognizant, supra note 104, at 4. 107 See Smit et al., supra note 79, at 19 (finding that “Only [0].2% of the respondents answered all of the statements [about cookies] correctly”); see also id. at 16 (citing A.M. McDonald & L.F. Cranor, American’s Attitudes About Internet Behavioral Advertising Practices, 2010 Proc. 9th Workshop on Privacy in the Electronic Soc’y 63 (finding “half of American respondents believed that their location could not be identified if they did not accept cookies or that cookies contain information from when they purchased their computer . . .”)). 108 The Economics of Information Security and Privacy, supra note 43, at 185. 648 Dougherty the keyboard.109 Another way in which companies ensure the transaction requires as few clicks as possible is through autocompletion of web forms.110 Wearing down by design facilitates ineffectual regimes. Con- sumers alone cannot be expected to understand the nuances of the policies they are asked to consent to. They do not have the technical expertise to understand how their information can be used for their benefit and to their detriment. Further, consumers cannot reasonably be expected to wade through the large volume of technical policies that they are presented with on a daily basis. “Privacy policies become antiprivacy policies because companies know we will never read them.”111

C. Nudging & Dark Patterns Nudging is a type of dark pattern and is another technique that renders consumers’ informed consent meaningless. Dark patterns develop when products are designed in a way that may not be in the user’s best interest.112 “Dark Patterns are tricks used in websites and apps that make you buy or sign up for things that you didn’t mean to.”113 Websites may also “trick users into doing things that they might not want to do, but which benefit the business in question.”114 Nudging and dark patterns raise ethical implications, particularly with regard to deceptive and misleading practices. Nudging leverages the design elements of attractiveness of choice, choice visibility, 115 and choice architecture116 to coerce users

109 See id. 110 See id. 111 Hartzog, supra note 10, at 66. 112 The Privacy Advisor Podcast: Product Design as an Exercise of Power and Manipulation, Int’l Ass’n of Privacy Profs. (Aug. 24, 2018), https://iapp.org/news/a/ the-privacy-advisor-podcast-podcast-product-design-as-an-exercise-of-power- and-manipulation/. 113 Alexis Hancock, Designing Welcome Mats to Invite User Privacy, Electronic Frontier Found., (Feb. 14, 2019), https://www.eff.org/deeplinks/2019/02/ designing-welcome-mats-invite-user-privacy-0 (quoting Dark Patterns, darkpatterns.org (last visited Mar. 9, 2020)). 114 Id. (quoting Forbruker Rådet, Deceived by Design: How Tech Companies Use Dark Patterns to Discourage Us from Exercising our Rights to Privacy 7 (Jun. 27, 2018) (Nor.), https://fil.forbrukerradet. no/wp-content/uploads/2018/06/2018-06-27-deceived-by-design-final.pdf.). 115 See id. (defining “attractiveness of choice” and “choice visibility” as “effectively warn[ing] some users about . . . hazards” present on the sites consumers were visiting). 116 See Hartzog, supra note 10, at 35 (2018) (defining “choice architects” as Vol. 12, No. 2 Northeastern University Law Review 649 into following a predestined path. Nudges can serve to exploit cognitive and behavioral biases in consumers.117 “Cognitive and behavioral biases are systematic errors in judgments and behaviors. . . . [T]hey represent deviations from the stylized economically rational behavior predicated by rational choice theory.”118 The designer behind the technology has the power “to nudge the user to take actions that the business would like the user to take.”119 Nudging uses design to alter consumers’ “behavior in a predictable way without forbidding any options or significantly changing their economic incentives.”120 Presentation nudges provide contextual cues in the user interface to reduce cognitive load and convey what may or may not be the appropriate level of risk.121 When first downloading the Face- book Messenger app, for example, it requests to be the consumer’s primary SMS application and uses a bright blue box surrounding the “OK” response while the “Not Now” text is far less prominent, coercing the consumer to click “OK” even if they may not want to.122 This same choice is presented on Venmo with the “Connect Face- book” option,123 the Guardian with the “Become a Digital Subscrib- er” button on the homepage,124 and even Spotify with the “Sign Up with Facebook” option.125 Another common example of design nudges are the embedded advertisements on Instagram: they look just like regular user posts, but if the consumer hovers over the image a bar pops up at the bottom of the image that says, “Shop Now.” This native advertise-

“people who have ‘the responsibility for organizing the context in which people make decisions.’”). 117 Alessandro Acquisti et al., Nudges for Privacy and Security: Understanding and Assisting Users’ Choices Online, 50 ACM Computing Survs. 44:1, 44:25 (2017). 118 Id. at 44:6. 119 Hancock, supra note 113. 120 Hartzog, supra note 10, at 35 n.40 (quoting Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions about Health, Wealth and Happiness 3, 6 (2009)). 121 Acquisti et al., supra note 117, at 44:13. 122 Hancock, supra note 113. 123 Id. 124 Guardian, https://www.theguardian.com/us (last visited Feb. 5, 2020). 125 Get Spotify Free, Spotify, https://www.spotify.com/us/signup/?forward_ url=https%3A%2F%2Fwww.spotify.com%2Fus%2Fdownload%2F (last visited Feb. 5, 2020). 650 Dougherty ment126 looks like it was posted by one of the consumers’ followers, but secretly it is a company watching the consumer across the web. Design can be used to positively impact a consumer’s visit to a website, but it can be used just as easily to manipulate their behavior. The key with design is that it is never neutral.127 “It is political. And it should be a key part of our information policy.”128 Again, using the Instagram advertisement as an example, it uses the advertisement to frame a select aspect of a consumer’s perceived reality (looking like one of the consumers’ followers) and makes the photo more salient in communicating to promote a particular result (click- ing through on the advertisement and hopefully purchasing the advertised product).129 “Once design affects our perceptions, it begins to shape our behavior. Once it shapes our behavior, it can be used to control us because it shapes what we perceive as normal. And once norms are established, they are difficult to change.”130 People can be expected, over time, to overshare information because it has become the norm and can be required as a condition to market entry.131 Consumers operating in a technological world are inherently irrational. Because consumers cannot possibly have all the information needed to provide meaningful consent to online operators, consent cannot be a valid measure of online operator practice. Reg- ulations should not be framed in the context of consumer control because information asymmetries cause consumers to be manipulated to act in ways that the company believes will serve the company’s best interests, which do not necessarily align with the best interest of the consumer. The consumer, however, has no way of evaluating these tradeoffs to understand if their consent to a particular policy is in their own best interest. In this regard, the CCPA is ineffective because it relies on companies providing consumers with information that, while maybe relevant, they will never get around to reading due to the utility value of privacy policies. While the ePrivacy Regulation frames the law as within the company’s control,132 consumers are still unaware of the policies they are consenting to and the technical parameters described therein.133 Informed consent requires the con-

126 Cognizant, supra note 104, at 10. 127 Hartzog, supra note 10, at 23. 128 Id. 129 See id. at 38–39. 130 Id. at 42. 131 Cohen, supra note 87, at 243. 132 As it places responsibilities on the companies, rather than the consumers. 133 See Smit et al., supra note 79. Vol. 12, No. 2 Northeastern University Law Review 651 sumer to have an understanding of all the information—not just the information that companies find relevant. Because of this, consent regimes cannot function in our current reality.

IV. Why the ePrivacy Regulation and CCPA Will Never Work: Proposal for New Focus in Legislation It is this lack of reality that makes the futures of the consent regimes contained in the ePrivacy Regulation and the CCPA fairly predictable, even though their effects have yet to be seen.134 Consent is an unnecessary and insufficient condition for privacy protection.135 Consent regimes do not work. The United States has a history of insufficient and inadequate consent regimes that have been manipulated in ways that are not beneficial to the individual. For one example, look at the history of abortion in the United States. Case law agrees that consent in this area of law must be truthful, relevant, and non-misleading, but state and federal legislatures, advocates, and courts disagree on what these terms actually mean.136 For another, look at the many consent-based frameworks from criminal law in the United States, such as searches. In the context of Fourth Amendment searches, individuals who voluntarily turn over information to third parties have no reasonable expectation of privacy.137 Until recently, voluntary disclosure was sufficient for location information, which many people,

134 As of this writing, the ePrivacy Regulation negotiations continue into 2020 under the Croatian presidency of the EU and the CCPA requires the California Attorney General to adopt regulations by July 1, 2020 to operationalize the law. See Osborne Clarke, The e-Privacy Regulation: Latest Delays Leave Important Questions Unanswered, Lexology (Dec. 3, 2019), https://www.lexology. com/library/detail.aspx?g=8e14f8b8-4000-4425-b944-d77153d8d913; Cal. Att’y Gen., Initial Statement of Reasons: Proposed Adoption of California Consumer Privacy Act Regulation (2019). 135 See generally Brandimarte et al., supra note 52; The Pathologies of Digital Consent, supra note 84. See also discussion infra Section IV. 136 Texas Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 575, 578 (5th Cir. 2012) (citing Planned Parenthood v. Casey, 505 U.S. 833, 882 (1992)). See Sabrina Tavernise, ‘The Time is Now’: States are Rushing to Restrict Abortion, or to Protect It, N.Y. Times, May 15, 2019 (discussing the tensions and variations between state laws, Supreme Court appointments, and advocates). 137 Until Carpenter v. United States, people were doubted to “entertain any actual expectation of privacy in the numbers they dial” because “[a]ll telephone users realize that they must ‘convey’ phone numbers to the telephone company.” Smith v. Maryland, 422 U.S. 735, 743 (1979); cf. Carpenter v. United States, 138 S. Ct. 2206 (2018). 652 Dougherty and now the Supreme Court, would claim is inadequate consent.138 Individuals also cannot assert a reasonable expectation of privacy over trash that they placed outside their house since they voluntarily left it in a collection area, yet many citizens (maybe even society as a whole) could find this to be a serious invasion of privacy.139 Regulations based on the definitions of these terms result in cases pitting ideologies against each other instead of determining what is best for the individual. But, leaving these terms unregulated will also leave the individuals susceptible to the beliefs and opinions of the state actors. Either way, consent is not the answer in these situations. Relying on consumer consent is inefficient. Consumers cannot constantly keep up with the rapid changes in technology and cannot be expected to read every new privacy policy that exists for every website or application they visit. Technological exceptional- ism140 should apply, and consumers should be given the benefit of the doubt. Information asymmetries are greater than ever before because of attitudes of technological determinism, where technologies are pushed into consumer mainstreams disregarding consumer harms, and regulations are only made ex post facto. Privacy policies should be the stepping stone to consumer education. Regulations governing privacy policies need to be precise, providing clear examples of what constitutes deceptive language and impermissible dark patterns. Because of the values in the United States, this will not be an easy regulation to draw, and, as this note will discuss, it could be considered as proscribing elements of speech, and creating two unequal groups for advertising.141 The ePrivacy Regulation gets closer towards this aim of pro-

138 Compare Carpenter v. United States, 138 S. Ct. 2206 (2018) with Smith, 422 U.S. at 743. 139 California v. Greenwood, 486 U.S. 35, 40–41 (1988); see also William Brinton, Right to Privacy is Thrown Out with the Trash, N.Y. Times, Jun. 1, 1988, at A30 (finding it “astonishing” that the Supreme Court concluded that individuals do not have a reasonable expectation of privacy over their trash and that the decision “places Fourth Amendment protection from warrantless searches well beyond the reach of even innocent people”). 140 Technological exceptionalism is the belief that no two technologies can be compared. See, e.g., Paul Ohm, The Many Revolutions of Carpenter, 32 Harv. J.L. & Tech. 358 (2019) (discussing how the Court in Carpenter applied technological exceptionalism by declining to entertain amici and scholars’ Fourth Amendment reasoning, which relied on traditional disciplines such as history or economics). 141 Discussed infra Section V. Vol. 12, No. 2 Northeastern University Law Review 653 viding consumer education by requiring policies and mechanisms that warn consumers of how cookies work and by regulating software providers. Ironically, although the CCPA relies heavily on consumer consent, it is drawn in a more pro-business perspective, as it does not actually define or have a section that identifies what constitutes informed consent.142 In order for businesses to know and understand how to educate consumers, the guidelines must be narrowly drawn in a regulation. While tactics like nudging and wearing down by design have existed long before the internet, it may be time to begin to regulate some of these tactics (more than consent elements) due to technological exceptionalism. Because of the magnitude and quality of the data that is collected and traded, there are many ethical concerns with the way RTB and online behavioral advertisement targeting work. As demonstrated in the following paragraph, the four-step analysis from Carpenter v. United States could easily be adopted from the criminal law context and applied as a framework for regulation of RTB and other user interface/user experience regulations.143 Because RTB uses “sophisticated real-time algorithms that target specific customer profiles across devices, content, geogra- phies, etc.,” it provides companies with information of a “deeply revealing nature,”144 which may allow companies to predict a consumer’s thoughts and emotions long before the consumer is aware. Marketers, through RTB, have a more comprehensive reach than ever before due to the amount of information that can be tracked and collected across the internet.145 The collection is necessarily “inescapable and automatic [in] nature,” as marketers wear consumers down through design and use presentation and information nudg-

142 Supra Section II.B. 143 The four factors are: 1) the information is of a “deeply revealing nature;” 2) the information possesses “depth, breadth, and comprehensive reach;” 3) the information is collected in an “inescapable and automatic nature;” and 4) society does not expect that the information processed leads to a gain in efficiency. Carpenter, 138 S. Ct. at 2223; Ohm, supra note 140, at 366–69 (suggesting the fourth factor, efficiency gain, was also used in Carpenter). 144 Cognizant, supra note 104, at 4; Carpenter, 138 S. Ct. at 2223 (stating the first factor of the Carpenter test: the information is of a “deeply revealing nature.”). 145 See Cognizant, supra note 104, at 4 (discussing how RTB algorithms can collect and track users across the internet); Carpenter, 138 S. Ct. at 2223 (stating the second factor of the Carpenter test: the information possesses “depth, breadth, and comprehensive reach.”). 654 Dougherty ing to exploit consumers.146 All of this can be done due to efficiency gains: RTB is a cost-effective solution that allows marketers to access consumers in ways they never could before.147 Despite the fact that this four-step analysis has already been used to evaluate the government’s ability to request cell site location information from consumers when suspected of criminal activity in Carpenter, Con- gress has failed to take this rationale and apply it to user interface/ user experience regulations. Funny, how nine justices who haven’t “really ‘gotten to’ email”148 have figured out a better framework than 535 Congress people with tech-savvy interns to help them.

V. The Proposed Deceptive Experiences to Online Users Reduction (“DETOUR”) Act is Not a Beacon of Hope for US Regulation: Problems with Regulating Privacy by Design Recently, United States Senators Mark Warner (D-VA) and Deb Fischer (R-NE) introduced a bill, the DETOUR Act, that would prohibit internet companies from “using deceptive design tricks as methods to trick users into handing over their personal data.”149 Warner commented that the “goal [of the bill] is simple: to instill a little transparency in what remains a very opaque market and ensure that consumers are able to make more informed choices about how and when to share their personal information.”150 While it may appear that legislators are getting the hint, the proposed Act still lacks a sense of reality. The proposed DETOUR Act addresses user interfaces designed to obscure, subvert or impair individual autonomy, decision making, or choice; behavioral or psychological experiments on us-

146 Carpenter, 138 S. Ct. at 2223 (stating that the third factor of the Carpenter test requires that the information is collected in an “inescapable and automatic nature.”); see also discussion supra Section III.B (discussing wearing down by design). 147 See Cognizant, supra note 104, at 4 (discussing the cost-effectiveness of TB). See also Ohm, supra note 140, at 366–69 (applying the fourth factor of the Carpenter test: society does not expect that the information processed leads to a gain in efficiency to RTB); see generally Carpenter, 138 S. Ct. at 2223. 148 Associated Press, Kagan: Court Hasn’t ‘Gotten to’ Email, Politico (Aug. 20, 2013, 4:06 PM), https://www.politico.com/story/2013/08/kagan-supremecourt-email-095724. 149 Makena Kelly, Big Tech’s ‘Dark Patterns’ Could be Outlawed Under New Senate Bill, Verge (Apr. 9, 2019, 1:13 PM), https://www.theverge. com/2019/4/9/18302199/big-tech-dark-patterns-senate-bill-detour-act- facebook-google-amazon-twitter. 150 Id. Vol. 12, No. 2 Northeastern University Law Review 655 ers; and user interfaces that cultivate compulsive usage in users under the age of 13. 151 Interestingly, though the Act defines informed consent, the definition only appears to apply to behavioral or psychological studies.152 Similar to the CCPA, large online operators have a duty under the DETOUR Act to disclose certain information to consumers. They have a duty to “disclose to its users on a routine basis . . . any experiments or studies that user was subjected to or enrolled in with the purpose of promoting engagement or product conversion,” and a duty to “disclose to the public on a routine basis . . . any experiments or studies with the purposes of promoting engagement or product conversion being currently undertaken, or concluded since the prior disclosure.”153 These disclosures must be presented in a “clear, conspicuous, context-appropriate, and easily accessible” manner, and must not be “deceptively obscured.”154 Unfair or deceptive acts are treated the same as under the Federal Trade Commission Act and are determined as having “the purpose, or substantial effect, of subverting or impairing user autonomy, decision-making, or choice to obtain consent or user data.”155 The Act is framed as imposing a duty on large online operators instead of relying on consumer control. Framing the Act in the context of user interfaces that are designed to manipulate users suggests that these operators are acting in ways that are beyond the consumer’s control and that the consumer cannot effectively consent to any of these behaviors. The Act rightfully takes into account that consent regimes do not work. While this is a step closer to the ePrivacy Regulation by seemingly assigning positive rights to consumers, there are two main problems this note argues (among many others) with regulating privacy by design that should be mentioned, though thorough discussion of each topic would be outside the scope of this note. Acts such as the DETOUR Act, which seek to regulate and close the gap on information asymmetries, may be limited by commercial speech. Regulating privacy policies, notices, and interfaces

151 Deceptive Experiences to Online Users Reduction (“DETOUR”) Act, S. 1084, 116th Cong. § 3(a)(1)(A)-(C) (as introduced to Senate Apr. 9, 2019) [hereinafter DETOUR Act]. 152 DETOUR Act, supra note 151, at § 2(5)(A). 153 Id. at § 3(b)(1)–(2). 154 Id. at § 3(b)(3). 155 Id. at § 3(d)(2)(A). 656 Dougherty interferes with the way online operators conduct their business and is highly paternalistic. For commercial speech to be protected by the First Amendment, according to the test proscribed by Central Hud- son, it must, at a minimum, concern lawful activity and not be misleading.156 Large online operators could attempt to argue that their privacy policies, notices, and interfaces are not misleading—possibly arguing that it is unreasonable to expect them to substantially mod- ify their practices in order to predict the implicit biases or education of every potential consumer. Next, the government’s asserted interest, providing transparency for consumers to provide informed consent while operating in the largely opaque online market, must be considered insubstantial or otherwise must not directly advance the asserted interest in a manner that is not more extensive than necessary.157 If an online operator’s practices are truly non-misleading, commercial speech issues should not arise. However, since there is little judicial interpretation of the FTC’s guidelines for determining what is unfair and deceptive,158 navigating this territory may require large online operators to conduct risk analyses to determine if their policies are appropriate. “There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than close them.”159 The second problem about regulating privacy by design is on equal protection grounds. When certain types of advertisements are more heavily regulated than other types, an equal protection ar-

156 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980) (establishing a four-part test for commercial speech: 1) whether the speech “concerns lawful activity and [is] not . . . misleading;” 2) “whether the asserted governmental interest is substantial;” 3) whether the regulation directly advances the governmental interest asserted;” and 4) “whether it is not more extensive than is necessary to serve that interest.”). 157 Id. (holding that to be protected under the First Amendment, commercial speech must be related to a substantial governmental interest). 158 While the FTC has issued over 170 privacy related complaints, only three resulted in judicial opinions: FTC v. Accusearch Inc., 2007 U.S. Dist. LEXIS 74905 (D. Wyo. 2007); FTC v. Wyndham Worldwide Corp., 10 F. Supp. 3d 602 (D. N.J. 2014); and LabMD, Inc. v. FTC 2014 U.S. Dist. LEXIS 65090 (N.D. Ga. 2014). Daniel J. Solove & Woodrow Hartzog, The FTC and the New Common Law of Privacy, 114 Colum. L.R. 583, 611 (2014). 159 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 770 (1976). Vol. 12, No. 2 Northeastern University Law Review 657 gument by large online operators may arise. Privacy by design regulations tend to differentiate between data collection practices for advertising products online and offline.160 The large online operators would argue that the basis of this distinction is not rationally justified by the purpose of the regulation, and violates the Equal Protec- tion Clause of the Fourteenth Amendment.161 It could be said that online advertisements are no less harmful to consumers than mailed coupons or advertisements for products. A classic example of this is when Target sent baby coupons to customers based on their “preg- nancy scores,” and was able to figure out a teen was pregnant before the teen’s parents did.162 Every time a consumer swipes their credit card or provides their zip code while checking out at a retail store like Target, the retailer collects the consumer’s name and zip code and then purchases additional information about the consumer from a data broker, “including [their] age, marital status, education level, political leanings, hobbies and income level,” to predict the consumer’s next purchases.163 Based on their predictions, the retailers mail consumers customized print advertisements and coupons.164 Purchasing information from a data broker and using it to tailor advertisements to a particular consumer is not unlike how large online

160 Compare DETOUR Act, supra note 151 (regulating only certain online deceptive advertising practices), with Lara O’Reilly, Walgreens Test Digital Cooler Doors with Cameras to Target you With Ads, The Wall Street Journal (Jan. 11, 2019), https://www.wsj.com/articles/walgreens-tests-digital-cooler-doors- with-cameras-to-target-you-with-ads-11547206200 (stating that Walgreens is testing a type of in-store advertising that would use similar techniques prohibited by the DETOUR Act. This technology would give companies “the ability to dynamically influence the shopper at the point of purchase and get them to add [their products] to the basket.”); see also Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 109–10 (1946) (holding that New York state could discriminate between different forms of advertisements, when the state had a legitimate governmental interest in protecting the safety of its citizens). 161 See Railway Express Agency, Inc., 336 U.S. at 109 (stating petitioner’s argument that “the classification which the regulation makes has no relation to the traffic problem since a violation turns not on what kind of advertisements are carried on trucks but on whose trucks they are carried.”). 162 Kashmir Hill, How Target Figured Out a Teen Girl was Pregnant Before her Father Did, Forbes (Feb. 16, 2012, 11:02 AM), https://www.forbes.com/sites/ kashmirhill/2012/02/16/how-target-figured-out-a-teen-girl-was-pregnant- before-her-father-did/#2526293e6668. 163 Melanie Hicken, What Your Zip Code Reveals About You, CNN: Money (Apr. 18, 2013, 9:59 AM), https://money.cnn.com/2013/04/18/pf/data-privacy/index. html. 164 Id.; see also Hill, supra note 162. 658 Dougherty operators practice behavioral real-time marketing.165 Yet once these tactics that are accepted for print advertising move online, privacy by design based regulations treat these practices differently. Although large online operators might argue that this unequal treatment violates the Fourteenth Amendment, as long as the “classification has relation to the purpose for which it is made and does not contain discrimination against which the Equal Protection Clause affords protection” their claims will face many challenges.166 While the DETOUR Act hits all the right points, it still lacks a sense of reality that is seen in much of the United States’ regulations. In order to ensure that a national privacy law in the United States is enduring and realistic, it cannot be based on human rights or positive rights, as the United States interprets privacy as a property and negative right. So, while looking to Europe can provide useful ideas, privacy by design in the United States needs to be drawn in terms that are familiar to us and in terms that do not rely on our consent.

VI. Conclusion Informed consent is meaningless in the area of privacy law when companies exploit consumers’ irrational behaviors and inabil- ities to accurately and completely assess the tradeoffs of privacy disclosures. When companies manipulate consumers and use practices such as information asymmetries and the paradox of choice, wearing down by design, and nudging and dark patterns, consumers lack any real ability to consent in a meaningful way. They do not and cannot understand all the information that is relevant to their decision-making process and cannot properly evaluate the risks and benefits of disclosure. By inundating consumers with notices of consent, the quality of consent downgrades, making consent an inefficient and subpar mechanism for a regulation to rely upon when seeking to protect consumer privacy and companies’ data collection practices.

165 See discussion supra Section III.B. 166 See Railway Express Agency, Inc., 336 U.S. at 110 (holding that classifications of different types of advertising should take into account “practical considerations based on experience rather than [] theoretical inconsistencies that the question of equal protection is to be answered.” They further found that “the fact that New York City sees fit to eliminate from traffic this kind of distraction but does not touch what may be even greater ones in a different category, such as the vivid displays on Times Square, is immaterial. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.”). Vol. 12, No. 2 Northeastern University Law Review 659

While the CCPA, ePrivacy Regulation, and DETOUR Act function as prototype legislations for privacy law, they are imperfect. The CCPA still frames privacy as something within the consumer’s control, by requiring privacy policies to be understandable to the reader. While it does require companies to outline certain rights and responsibilities, it falls flat by relying on informed consent, and there is no precise way to measure what constitutes a privacy policy that is reasonably accessible to consumers. In comparison, the ePrivacy Regulation relies heavily on clear, prominent notices that require affirmative consent, which may yield similar results to the opt-in GDPR notices that ultimately wore consumers down by design. It also relies on regulating a technology that is already slowly becoming obsolete, i.e. cookies, and does not necessarily anticipate the future of RTB and beyond. Consent regimes do not work. The DETOUR Act highlights that consumers do not and cannot have all the information and assigns responsibility to the large online operators. However, acts like this one, which legislate privacy by design, also must take into account first amendment and equal protection issues. Consumers deserve a right to know how and why Facebook knew Bali was a dream destination of theirs or that their partner was going to propose, because what privacy really means is a right to be left alone—to choose to keep these things private. The surveillance of our most personal life is creepy because it’s invasive and inevitable; corporations create monopolies by commodifying the thoughts, movements, and feelings of consumers. It’s inescapable. Deleting your account doesn’t work. And consumers have one option: accept the regime. This is not a norm that we can accept. I, for one, do not consent. 660 Garry

Establishment Clause Jurisprudence Still Groping for Clarity: Articulating a New Constitutional Model

By Patrick M. Garry*

* Professor of Law, University of South Dakota. Vol. 12, No. 2 Northeastern University Law Review 661

Table of Contents I. Introduction ��662 II. The Confusion in Establishment Clause Jurisprudence ��663 A. .Inconsistencies in Religious Symbol Cases ��663 B. .Problems With the Endorsement Test ��667 III. The Court’s American Legion Decision �� 670 A. Facts of the Case �� 670 B. The Supreme Court’s Decision �� 671 IV. Competing Views of the Establishment Clause ��674 A. The Separationist View ��675 1. The Wall of Separation’s Inaccurate Reading of History ��675 2. Separationism and the Endorsement Test ��679 3. The Endorsement Test as a Dissenter’s Right ��683 4. The Establishment Clause as Social Policy �� 684 B. The Accommodationist View �� 688 V. The Relationship Between The Religion Clauses ��692 A. The Clauses Are Not in Conflict ��692 B. The Institutional Focus of the Establishment Clause �� 694 C. Prohibition of Government Interference in Religious Institutions �� 696 VI. Nonpreferentialism as the Test �� 698 VII. Government Banned from Dictating Religious Truth �� 700 VIII. The Establishment Clause and Limited Government �� 702 IX. Conclusion �� 705 662 Garry

In previous cases, the endorsement test had often been used to determine whether religious expression or symbols on public property violated the Establishment Clause. However, in American Legion v. American Hu- manist Ass’n, the Court turned to an historical traditions test, casting doubt on the future legitimacy of the endorsement test and the broader and older Lemon test, which has in recent years fallen into disfavor with the Court, given its foundations in the controversial Wall of Separation metaphor. Even though the American Legion Court upheld the religious symbol at issue, it did so on such narrow grounds as to give very little direction to future Estab- lishment Clause cases involving even slightly different factual situations. Con- sequently, the decision does very little to clarify an already greatly confused Establishment Clause jurisprudence. On the other hand, while it may not have toppled the Wall of Separation, it did remove a brick from that Wall. And perhaps Lemon and its progeny can only be undone in small steps. This Article conducts the kind of thorough examination of the meaning and purpose of the Establishment Clause that many might have hoped from the American Legion opinion. In so doing, the Article seeks to bypass all the different tests the Court has used over the past decades and instead focus on the root meaning of the word ‘establishment’—an endeavor the courts have never undertaken. Furthermore, America’s steady drift to an increasingly secular society makes it even more important to understand the meaning of the Establishment Clause, especially the connection of that Clause to the overall protection of religious liberty.

I. Introduction Many European settlers who came to America in the 17th century sought to escape the oppressive mandates of state-established religions in Europe. These settlers came in search of a religious liberty that was not possible in their home countries. In the late 18th century, the framers of the First Amendment sought to codify within the Constitution a clear prohibition of the kind of state-established religion from which the early American settlers had fled. Nearly two and a quarter centuries later, the issue of state-established religion came to the U.S. Supreme Court when a war memorial in the shape of a cross, built and maintained by a private veterans group but now standing on government-owned property, was alleged to constitute an improper state establishment of religion.1 In a much-anticipated decision, the Court in 2019 found the infamous Blandensburg Peace Cross, built in 1925 to memorialize soldiers killed in World War I,

1 See generally Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2074 (2019). Vol. 12, No. 2 Northeastern University Law Review 663 to be non-offensive to the Constitution.2 Although cases involving religious displays on public property had previously come to the Court, American Legion gave the Court an opportunity to more clearly define establishment, as the term is used in the First Amendment.3 The Court did not take this opportunity, however, and instead ruled on narrow constitutional grounds that gave no insights into the underlying meaning of the Establishment Clause, nor provided any guidance for any other type of church-state disputes. Because of the narrowness of the decision, it will do little to clarify the constitutional confusion that has built up over the decades—a confusion that this Article seeks to address through an historical and constitutional examination of the meaning of the term “establishment”. Part II below outlines the state of current Establishment Clause jurisprudence, focusing particularly on the shortcomings of the endorsement test used to determine violations of that Clause. Part III then explores in depth the Court’s American Legion opinion and how it fails to resolve the jurisprudential confusion. Part IV surveys the various views and models of the Establishment Clause, ranging from the secular-oriented separationist view to the more religious freedom-oriented accommodationist view. Part V distin- guishes the two religion clauses in the First Amendment and ar- ticulates the institutional focus of the Establishment Clause. Part VI then offers the Article’s nonpreferentialist model of the Estab- lishment Clause. And Parts VII and VIII further explore the ways in which the Establishment Clause restrains government power within the overall structure of the U.S. Constitution.

II. The Confusion in Establishment Clause Jurisprudence

A. .Inconsistencies in Religious Symbol Cases Confusion has long characterized the Court’s Establishment Clause jurisprudence.4 Over the years, courts have applied various

2 Id. at 2090. 3 See e.g., Van Orden v. Perry, 545 U.S. 677 (2005) (upholding the constitutionality of a Ten Commandments monument display); McCreary Cty. v. ACLU, 545 U.S. 844 (2005) (striking down a framed display of the Ten Commandments hanging on a courthouse wall). The First Amendment states, in relevant part: “Congress shall make no law respecting an establishment of religion . . . .” U.S. Const. amend I. 4 See Patrick M. Garry, Religious Freedom Deserves More than Neutrality: The Constitutional Argument for Nonpreferential Favoritism of Religion, 57 Fla. L. Rev. 664 Garry constitutional tests for determining Establishment Clause violations. In 2005, for instance, the Supreme Court handed down opposite rulings on the same day in two cases involving public displays of the Ten Commandments. First, in McCreary County v. ACLU, the Court held that a framed copy of the Ten Commandments in a courthouse hallway was an unconstitutional establishment of religion.5 Second, in Van Orden v. Perry, the Court upheld Texas’ right to display a Ten Commandments monument in the grounds of the state capitol.6 The Court justified the different rulings with completely different constitutional tests. In Van Orden, the plurality opinion did not even recognize the test that had become the one most frequently used to evaluate public displays of religious symbols—the endorsement test.7 Instead, the Court relied on the less frequently used historical traditions test applied in Marsh v. Chambers, which looked to whether there existed a long and unbroken tradition of religious acknowledgments, such as a longstanding public display of the Ten Commandments. 8 Furthermore, the crucial fifth vote supplied by Justice Breyer in Van Orden appeared to rely on a new “legal judgment” or judicial common sense test.9 In McCreary, on the other hand, the Court examined whether the Ten Commandments display served a predominantly secular purpose.10 However, this “purpose” test departed from the Court’s evolving neutrality approach, which focuses on whether a government program is facially neutral toward religion or whether the program explicitly singles out religion for special benefits or burdens.11

1, 3 (2005); Patrick M. Garry, A Congressional Attempt to Alleviate the Uncertainty of the Court’s Establishment Clause Jurisprudence: The Public Expression of Religion Act, 37 Cumberland L. Rev. 1, 6–7, 16–18 (2007). 5 McCreary Cty. v. ACLU, 545 U.S. 844 (2005). 6 Van Orden v. Perry, 545 U.S. 677 (2005). 7 Van Orden, 545 U.S. at 685–86, 699 (calling the Lemon test inappropriate for “passive” religious expressions). See infra Section II.B, “Problems with the Endorsement Test,” for further discussion of the endorsement test. 8 Van Orden, 545 U.S. at 686–88; Marsh v. Chambers, 463 U.S. 783, 792, 795 (1983) (upholding the Nebraska legislature’s practice of opening sessions with a prayer by a state-employed clergy). 9 Van Orden, 545 U.S. at 700 (Breyer, J., concurring) (calling on judges to use their own legal judgment to determine what government interactions with religion will prove to be unacceptably divisive or oppressive). 10 McCreary, 545 U.S. at 861–63. 11 See Zelman v. Simmons-Harris, 536 U.S. 639, 661–22 (2002) (upholding a school voucher law that is facially neutral – e.g., leaving to private individuals the decision whether to apply public funds toward a religious education – even though the ultimate effect of that law might be to divert funds toa Vol. 12, No. 2 Northeastern University Law Review 665

Moreover, confusing the outcomes of McCreary and Van Orden even more, the monument in the latter case contained the words “I am the Lord thy God”—words that were far more religious than those in the display struck down in McCreary.12 As one prominent commentator noted, “the split decisions in McCreary [and] Van Orden. . . mean that we will be litigating these cases one at a time for a very long time.”13 This prediction, as borne out in American Legion, proved accurate. The doctrinal inconsistency prevalent in the Establishment Clause area prompted one court to describe the law as suffering “from a sort of jurisprudential schizophrenia.”14 To illustrate the confusion in this area, Christopher Lund notes that in the seven cases involving the “constitutionality of passive displays” of religious symbols brought to the Court between 1984 and 2010, “the Court issued [36] separate opinions,” with only one of the 36 attracting more than five votes.15 All the different tests have not only failed to provide a consistent constitutional guide to the interaction between government and the religious practices of society; they have failed to produce any lasting agreement on the issue of religion in the public arena. As one legal scholar has observed, “we are moving less toward any type of consensus on this matter than toward a state of increased polarization and divisiveness.”16 According to another legal scholar, “[t]here is no underlying theory of religious freedom that has captured a majority of the Court, and . . . [e]very new case . . . presents the very real possibility that the Court might totally

religious school). 12 Van Orden, 545 U.S. at 738–39 (emphasis omitted); see also McCreary, 545 U.S. at 850–52 (discussing the display of two large copies of the Ten Commandments on the walls in two Kentucky courthouses). 13 Douglas Laycock, How to be Religiously Neutral, Legal Times (July 4, 2005), https://www.law.com/nationallawjournal/almID/900005432092/. 14 Thomas v. Anchorage Equal Rights Comm’n, 165 F.3d 692, 717 (9th Cir. 1999). 15 Christopher Lund, Salazar v. Buono and the Future of the Establishment Clause, 105 Nw U. L. Rev. 1387, 1387–88 (2011). 16 Daniel Conkle, Toward a General Theory of the Establishment Clause, 82 Nw. L. Rev. 1113, 1160 (1988). Another commentator stated that “[a]s a result of the multitude of tests and opinions stemming from Supreme Court Establishment Clause cases, there have been numerous inconsistencies among the lower courts, as well as a general sense of confusion within society.” Roxanne Houtman, ACLU v. McCreary County: Rebuilding the Wall Between Church and State, 55 Syracuse L. Rev. 395, 403–04 (2005). Over “the past [30] years, the Supreme Court’s Establishment Clause jurisprudence has become increasingly ambiguous.” Id. at 397. 666 Garry abandon its previous efforts and start over.”17 Yet another scholar notes that the establishment doctrines used by the courts are “in nearly total disarray.”18 In line with these scholarly opinions, the American Legion Court did not attempt to reconcile the various tests; nor did it examine anything outside of the precise facts surrounding the symbol at issue in that case.19 In particular, the majority did not even specifically mention the endorsement test, which had often been used to evaluate Establishment Clause cases involving the issue of religious expression or displays on public property.20 Indeed, perhaps the Court’s silence on the endorsement test reflects a growing judicial discomfort with that test, along with the Lemon test.21

17 William P. Marshall, What is the Matter with Equality?: An Assessment of the Equal Treatment of Religion and Nonreligion in First Amendment Jurisprudence, 75 Ind. L.J. 193, 194 (2000). 18 Kent Greenawalt, Quo Vadis: The Status and Prospects of ‘Tests’ Under the Religion Clauses, 1995 S. Ct. Rev. 323, 323 (1995). “The failure to adopt a single Establishment Clause test has resulted in the use of a multitude of tests by lower courts, which is causing a growing number of disputes among the circuits.” Houtman, supra note 16, at 419. The inconsistency of the case law is apparent in many ways. For instance, although the Court had previously held that states could lend textbooks to religious schools, Bd. of Educ. v. Allen, 392 U.S. 236, 238 (1968), in Lemon the Court ruled that states could not supplement the salaries of religious school teachers who taught the same subjects offered in public schools. Lemon v. Kurtzman, 403 U.S. 602, 617–21 (1971). Though it later allowed book loans from public to parochial schools, the Court prohibited states from providing to religious schools various instructional materials, such as maps and lab equipment. Wolman v. Walter, 433 U.S. 229, 248–51 (1977); Meek v. Pittenger, 421 U.S. 349, 362–66 (1975). In one case, the Court struck down a state’s provision of remedial instruction and guidance counseling to parochial school students, Meek, 421 U.S. at 367–72, only to later uphold another state’s provision of speech and hearing services to such students. Wolman, 433 U.S. at 241–48. Whereas some cases have permitted states to furnish religious schools with standardized tests, see id. at 255, and pay the costs incurred by religious schools to administer such exams. See generally Comm. for Pub. Educ. and Religious Liberty v. Regan, 444 U.S. 646 (1980) (order upholding the constitutionality of a state statute to use public funds to reimburse church-sponsored schools for the performance of testing services as required by state law was affirmed on the grounds that the goal was to provide educational opportunities to state citizens, the nonpublic school did not control the content of the tests, and the reimbursement process was customary to most reimbursement schemes). 19 See generally Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019). 20 See id. 21 In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court examined the constitutionality of state statutes from Pennsylvania and Rhode Island, which Vol. 12, No. 2 Northeastern University Law Review 667

B. .Problems With the Endorsement Test The endorsement test finds an unconstitutional establishment of religion when a government action is perceived by a reasonable observer as favoring or endorsing a particular religion or religious belief and hence making nonadherents to that religion or belief feel as if they are second class citizens.22 The endorsement test was essentially designed for complainants who feel offended and alienated by the religious display or expression, which was just the complaint in American Legion.23 Nonetheless, the majority in its decision did not explicitly mention that test, other than by implicit incorporation into its extensive discussion of Lemon, from which the endorsement test came as an outgrowth.24 The endorsement test has become the Supreme Court’s preeminent means for analyzing the constitutionality of religious symbols and expression on public property.25 For instance, in one of the early cases involving public displays of religious symbols, the Court in County of Allegheny v. ACLU used the endorsement test to strike down a city’s practice of allowing a private religious group to place a crèche on public property during the Christmas season.26 Demon-

provided public money to parochial schools. Id. at 606. Overturning those statutes, the Court set out the three-part Lemon test: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” Id. at 607, 612–13 (citation omitted). For a criticism of the inconsistencies spawned by Lemon, see Patrick Garry, The Institutional Side of Religious Liberty: A New Model of the Establishment Clause, 2004 Utah L. Rev. 1155, 1182 (2004). The later endorsement test, articulated in County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 593 (1989), is an offshoot of Lemon and states that the government unconstitutionally endorses religion whenever it conveys that a particular religion is favored or preferred over other religions or nonreligions. 22 Lynch v. Donnelly, 465 U.S. 668, 687–88 (1984) (O’Connor, J., concurring); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 799 (1995) (Stevens, J., dissenting). 23 See Am. Legion, 139 S. Ct. at 2074 (“[R]espondents filed this lawsuit, claiming they [were] offended by the sight of the memorial.”). 24 See id. at 2078–82 (discussing the Lemon test). 25 Alberto B. Lopez, Equal Access and the Public Forum: Pinette’s Imbalance of Free Speech and Establishment, 55 Baylor L. Rev. 167, 195 (2003). Under this test, the government unconstitutionally endorses religion whenever it conveys the message that a religion or particular religious belief is favored by the state. Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 593 (1989). 26 Cty. of Allegheny, 492 U.S. at 579–81 (noting that although the crèche was 668 Garry strating the uncertainty of the endorsement test, however, the Court in the very same case upheld another holiday display also located on public property—a display that combined a 45-foot Christmas tree and an 18-foot Jewish menorah, which, like the crèche, was a religious symbol.27 A problem with the endorsement test is its subjectivity regarding a court’s conclusions as to what impressions viewers might have of some religious display or speech. Because the test calls for judges to speculate about the impressions that unknown people may have received from various religious speech or symbols, it is incapable of achieving certainty.28 One judge has written that the endorsement test requires “scrutiny more commonly associated with interior decorators than with the judiciary.”29 Justice Kennedy, a critic of the endorsement test, declared it to be “flawed in its fundamentals and unworkable in practice.”30 Ac- cording to Justice Kennedy, the endorsement test results in a “jurisprudence of minutiae” that requires courts to consider every little detail surrounding the religious speech, so as to determine whether an observer might read into the speech an endorsement by the

owned by a Roman Catholic group, the city of Pittsburgh stored, placed and removed it). 27 Id. at 579, 581–82, 587, 620–21. Distinguishing the unacceptable crèche in Allegheny from the permissible one in Lynch, the Court examined the setting and found that, unlike the elephants, clowns and reindeer that surrounded the crèche in Lynch, nothing in the Allegheny display muted its religious message. Id. at 596–98, 620–21. The menorah, on the other hand, represented a holiday with both sectarian and secular aspects. Id. at 613–14. Moreover, the placement of the menorah next to the Christmas tree (unlike the display with just the crèche) symbolized two faith traditions—one Jewish and one Christian—conveying the message that the city recognized more than one manner of celebrating the holiday. Id. at 616–17 (noting that the Christmas tree was once a sectarian symbol but that it has lost its religious overtones). Thus, while the crèche was considered an endorsement of the Christian faith, the tree and menorah were acceptable, insofar as together they did not give the impression that the state was endorsing any one religion. Id. at 620–21. In Allegheny, the Court concluded that, as to the crèche, “[n]o viewer could reasonably think that it occupie[d] this location without the support and approval of the government.” Id. at 599–600. The tree and menorah, on the other hand, did not present a “sufficiently likely” probability that observers would see them as endorsing a particular religion. Id. at 620. 28 Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement” Test, 86 Mich. L. Rev. 266, 301 (1987). 29 Am. Jewish Cong. v. City of Chi., 827 F.2d 120, 129 (7th Cir. 1987) (Easterbrook, J., dissenting). 30 Cty. of Allegheny, 492 U.S. at 669. Vol. 12, No. 2 Northeastern University Law Review 669 government.31 Under the endorsement test, any religious expression by public officials tends to be viewed as an automatic equivalent of establishment, no matter how much that single religious expression may be surrounded by secular messages, and no matter the age or maturity of the audience.32 Even the most minute or fleeting symbol or expression can rise to the level of an official government endorsement of religion.33 Accordingly, individual feelings of offense or alienation can become a constitutional trump card against any religious expression or symbol on public property. This was an issue that arose in American Legion, as what gave rise to the initial litigation was the offense the plaintiffs’ felt when driving by the cross.34 And since feelings of offense underlay the endorsement test,35 the fact that the Court did not use the test may

31 In Allegheny, this meant that the Court had to examine “whether the city has included Santas, talking wishing wells, reindeer, or other secular symbols” to draw attention away from the religious symbol in the display. Id. at 674. The banning of the crèche, in Kennedy’s opinion reflected “an unjustified hostility toward religion” and a “callous indifference toward religious faith that our cases and traditions do not require.” Id. at 655, 664. 32 In one case, endorsement occurred when a professor, Dr. Bishop, at a public university organized an optional after-class meeting on religious topics, which was attended by several of his students. Bishop v. Aronov, 926 F.2d 1066, 1068– 69 (11th Cir. 1991). This prompted Bishop’s supervisor to issue an order to Bishop to cease his interjections of religious beliefs during instructional class periods and his optional classes. In Bishop, the professor prefaced his remarks by labeling them his “personal bias,” thus denying any implication of institutional endorsement. Id. at 1066, 1068. The University’s counsel believed, however, that under Lemon v. Kurtzman, Dr. Bishop’s activities did amount to such violations; thus the University refused the professor’s later requests to rescind the order. Ultimately, the 11th Circuit did not reach the Establishment Clause issue, stating that the university was within its right to issue the order on the basis of its power to control classroom content. Id. at 1078. 33 Even though a number of Justices “find irresistible the proposition that government should not make anyone feel like an ‘outsider’ by endorsing religion,” these same Justices seem uninclined to overturn free exercise exemptions for religious objectors, or the use of the national motto ‘In God We Trust,’ or even the opening of Supreme Court sessions with the plea “God save the United States and this Honorable Court.” Steven D. Smith, Nonestablishment Under God – The Nonsectarian Principle, 50 Vill. L. Rev. 1, 13– 14 (2005). There is also the example posed by Justice Stevens: what about the observer “who thinks [the exhibition of] an ‘exotic cow’ in the national zoo conveys the government’s [endorsement] of the Hindu religion?” Id. at 15–16. 34 Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2074 (2019). 35 See Am. Jewish Cong. v. City of Chi., 827 F.2d 120, 129–30, 134 (7th Cir. 1987) (Easterbrook, J., dissenting). 670 Garry suggest that the test, along with the broader Lemon test, has lost favor with the Court.

III. The Court’s American Legion Decision

A. Facts of the Case In 1918, a group of private citizens began raising money to erect a giant cross to honor 49 area soldiers killed in World War I.36 In 1922, the American Legion assumed control of the project and completed it in 1925.37 The monument, in the shape of a Latin cross, stands 32 feet high in the median of a three-way highway intersection in Bladensburg, Maryland.38 In 1961, because of safety concerns arising from the placement of the Cross in the middle of a busy traffic median, a state parks agency—the Maryland-National Capital Park and Planning Commission—acquired title to the land on which the Cross sat and assumed care and maintenance of the monument.39 Currently, the Cross stands in a “traffic island taking up one- third of an acre at the busy intersection.”40 The American Legion’s symbol is affixed near the top of the Cross and a nine-foot wide plaque listing the names of the soldiers memorialized by the Cross is located at the base.41 The Cross is also part of a memorial park honoring veterans.42 This park became known as Veterans Memorial Park.43 Monuments in the park include a War of 1812 memorial, a World War II memorial, a Korean War veterans memorial, a Vietnam War veterans memorial, and a September 11th memorial garden.44 In 2012, the American Humanist Association lodged an Es- tablishment Clause complaint with the Commission.45 Litigation was commenced in 2014 by the American Humanist Association and a group of individuals who encountered the Cross while driving in the

36 Am. Legion, 139 S. Ct. at 2076–77. 37 Id. at 2077. 38 Id. at 2077–78; Am. Humanist Ass’n v. Md.-Nat’l Capital Park & Planning Comm’n, 874 F.3d 195, 201 (4th Cir. 2017). 39 Am. Legion, 139 S. Ct. at 2078. 40 Am. Humanist Ass’n, 874 F.3d at 201. 41 Am. Legion, 139 S. Ct. at 2077. 42 Id. 43 Id. 44 Id. 45 Id. at 2078. Vol. 12, No. 2 Northeastern University Law Review 671 area and were offended by it.46 Claiming that the Cross violated the Establishment Clause, the plaintiffs asked a federal court to demolish the Cross or at least remove its arms.47 The District Court upheld the Cross against this challenge, but the Fourth Circuit Court of Appeals ruled that the cross breached the wall of separation between church and state, violating the Establishment Clause.48

B. The Supreme Court’s Decision In a seven to two decision, with five concurrences and an opinion written by Justice Alito, the U.S. Supreme Court in Amer- ican Legion upheld the state’s ownership of the Cross, relying on the historical traditions test of Marsh v. Chambers,49 Van Orden v. Per- ry,50 and Town of Greece v. Galloway.51 Under the historical traditions test, state-sponsored religious exercises or symbols may be upheld if those exercises or symbols are “simply a tolerable acknowledg- ment of beliefs widely held among the people of this country.”52 As a prelude to its decision, the Court in American Legion made several findings. It found that, although the general symbol of a Latin cross is unquestionably a secular symbol, it had “also taken on a secular meaning.”53 The Court also found that, given the historical circumstances surrounding World War I, the figure of a cross was a logical symbol to memorialize the veterans killed in that war.54 There was no conclusive evidence to suggest that religious motivations were the only or even the primary reasons for initially deciding on the symbol of a cross to be used in the memorial.55

46 Id. at 2074. 47 Id. 48 Am. Humanist Ass’n v. Md.-Nat’l Capital Park & Planning Comm’n, 874 F. 3d 195, 203, 210 (4th Cir. 2017). 49 Marsh v. Chambers, 463 U.S. 783 (1983). 50 Van Orden v. Perry, 545 U.S. 677 (2005). 51 Town of Greece v. Galloway, 572 U.S. 565 (2014). 52 Marsh, 463 U.S. at 792. According to Marsh, “historical evidence sheds light not only on what the drafts-men intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress.” Id. at 790. 53 Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2074 (2019). As the Court recognized, “there are instances in which [the cross’] message is now almost entirely secular.” Id. at 2074 (citing the cross symbol used by the Red Cross and in the Swiss flag, as well as by corporations such as Blue Cross Blue Shield). 54 Id. at 2075–76. 55 Id. at 2076. 672 Garry

As the Court stated, while “we do not know precisely why the [de- signers of the memorial] chose the cross, it is unsurprising that the committee—and many others commemorating World War I—adopted a symbol so widely associated with that wrenching event.”56 Not only was the Court unable to ascertain the original purposes of the Cross—religious or secular—the Court also pointed out that over time the purposes of monuments often multiply and change.57 Furthermore, according to the Court, just as the purposes behind monuments change and evolve over time, so too did the messages conveyed by that monument.58 A primary focus of the Court’s opinion was its disposal of the Lemon test as the appropriate test for the dispute at hand.59 The Lem- on test gives courts broad latitude to find Establishment Clause violations, since this test requires that any government program pass three different hurdles.60 Acknowledging the hostility to religion and doctrinal chaos fostered by Lemon,61 as well as the failure of Lemon to fulfill its ambitious attempt to “find a grand unified theory of the Es- tablishment Clause,” the Court in American Legion decided on a much more narrow and modest approach to the historical traditions test.62 It was as if the failure of Lemon’s grand test discouraged the Court from any broader or more comprehensive view of the Establishment

56 Id. 57 Id. at 2082. 58 Id. at 2084. 59 This is noteworthy because the three-part Lemon test was used by the Fourth Circuit to rule that the Cross violated the Establishment Clause. Am. Humanist Ass’n v. Md.-Nat’l Capital Park & Planning Comm’n, 874 F. 3d 195, 206–10 (4th Cir. 2017), rev’d sub nom. Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019). See footnote 21, supra, for a discussion of the Lemon test. 60 See note 21, supra. 61 See, e.g., Am. Legion, 139 S. Ct. at 2081–82; Michael McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 118–20 (1992) (outlining the doctrinal chaos fostered by Lemon). 62 Am. Legion, 139 S. Ct. at 2071, 2087. As Justice Gorsuch stated,

Lemon was a misadventure . . . Scores of judges have pleaded with us to retire Lemon, scholars of all stripes have criticized the doctrine, and a majority of this Court has long done the same. . . . Today, not a single Member of the Court even tries to defend Lemon against these criticisms – and they don’t because they can’t. Id. at 2101. (Gorsuch, J., concurring in judgment). For further discussion on Lemon’s hostility toward religion, see Patrick Garry, The Myth of Separation: America’s Historical Experience with Church and State, 33 Hofstra L. Rev. 475, 495–497 (2004). Vol. 12, No. 2 Northeastern University Law Review 673

Clause. However, as much as the Court may have dismissed Lemon, it only narrowly did so, refusing to apply it only to longstanding passive displays such as the Cross.63 In place of the Lemon test, which was used by the Fourth Circuit to find the Cross unconstitutional,64 the Court resorted to a narrow application of the historical traditions test, holding that sufficiently longstanding passive religious symbols that have over time taken on one or more secular meanings do not violate the Es- tablishment Clause.65 Articulated in Marsh v. Chambers, which upheld the practice of a chaplain leading a prayer at the beginning of a state legislative session, the historical traditions test looks to whether the particular government-religion interaction has a sufficiently long historical record.66 The problem with the historical traditions test, regarding its ability to resolve other Establishment Clause issues, is that it looks only to the distant past.67 Consequently, a host of unanswered questions persist in the aftermath of American Legion. As the Court stated, “[t]he passage of time gives rise to a strong presumption of constitutionality.”68 In the case of the Cross, it had stood for 89 years.69 But how long must a government-religion interaction persist before it acquires a presumption of constitutionality? What if other longstanding symbols or expressions do not acquire the various secular

63 “Today, the Court declines to apply Lemon in a case in the religious symbols and religious speech category . . . . The Court’s decision in this case again makes clear that the Lemon test does not apply to Establishment Clause cases in that category.” Am. Legion, 139 S. Ct. at 2093. (Kavanaugh, J., concurring). The narrowness of the decision was reflected in Justice Kagan’s concurrence: “Although I agree that rigid application of the Lemon test does not solve every Establishment Clause problem, . . . I prefer at least for now to [proceed on a] case-by-case [basis], rather than to sign on to any broader statements about history’s role in Establishment Clause analysis.” Id. at 2094 (Kagan, J., concurring in part). 64 Am. Humanist Assoc. v. Md.-Nat’l Capital Park & Planning Comm’n, 874 F. d 195, 212 (4th Cir. 2017), rev’d sub nom. Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019). 65 Am. Legion, 139 S. Ct. at 2089. 66 Marsh v. Chambers, 463 U.S. 783, 787–88 (1983). The test was later applied in Town of Greece v. Galloway, 572 U.S. 565 (2014) (upholding the constitutionality of a town’s practice of opening monthly town board meetings with an invocation given by a volunteer chaplain of the month). 67 See supra note 52 and accompanying text for a discussion of the historical traditions test. 68 Am. Legion, 139 S. Ct. at 2085. 69 Id. at 2074. 674 Garry meanings or perceptions that the Cross acquired over its 89 years? What if evidence exists that the longstanding symbol had more religious reasons attached to its construction than did the Cross? Be- cause the historical traditions test encompasses such a long period of time, it becomes impossible to know when exactly a religious symbol becomes sufficiently surrounded by secular meanings as to render it constitutional.

IV. Competing Views of the Establishment Clause The Lemon test was a definite casualty of American Legion. But the Court made no attempt to replace Lemon with a revised or altered view of the Establishment Clause; instead, the Court seemingly issued as narrow a decision as it could, thereby avoiding the opportunity to give any view of the role of the Establishment Clause in the scheme of religious liberty or any broader direction to the relationship of religion and the public square.70 Nor did the Court address any underlying constitutional theory or vision of the Establishment Clause that gave rise to Lemon.71 Perhaps it was unrealistic to expect another grand Lemon-type test. The consequence of this, however, is that the American Legion decision does little to reconcile the various competing and opposing views of the Establishment Clause.72 Other than telling us that the Lemon or endorsement test is inappropriate for longstanding religious symbols that have taken on various secular meanings, the Court in American Legion gives no broader guidance to Establishment Clause disputes.73 It is clear that five different concurrences would make any kind of broad or far-reaching decision impossible. On the other hand, the decision does help turn the Court further away from a Lemon test that proved both unpredictable and inhospitable to the historic presence of religion in American society. American Legion will undoubtedly mark a small step in the Court’s Establishment Clause jurisprudence, but

70 See generally Am. Legion, 139 S. Ct. 2067. 71 The underlying vision of Lemon rested in the wall of separation metaphor that saw a complete separation between government and religion, thus confining religion to the private realm. See Patrick M. Garry, The Democratic Aspect of the Establishment Clause: A Refutation of the Argument that the Clause Serves to Protect Religious or Nonreligious Minorities, 59 Mercer L. Rev. 595, 618–19 (2008). 72 Justice Thomas acknowledged this deficiency, stating that “I cannot join the Court’s opinion because it does not adequately clarify the appropriate standard for Establishment Clause cases.” Id. at 2098 (Thomas, J., concurring in judgment). 73 See generally Am. Legion, 139 S. Ct. 2067. Vol. 12, No. 2 Northeastern University Law Review 675 perhaps it will be a necessary step that leads to an eventual understanding of the Establishment Clause that is free from the restraints of Lemon. The history and current state of confusion and inconsistencies in the Court’s Establishment Clause jurisprudence reflect an array of different viewpoints concerning the meaning and purpose of the Clause itself. For simplicity’s sake, these various viewpoints will be narrowed to two basic, opposing positions. On one hand, separationists see the Establishment Clause as protecting a secular society, with religion as a strictly private enterprise that should not enter the public square.74 On the other hand, accommodationists believe the Establishment Clause serves to protect religious liberty and support a thriving religious pluralism in the public square, permitting the government to accommodate religion’s historic public presence.75

A. The Separationist View

1. The Wall of Separation’s Inaccurate Reading of History The separationist view holds that a strict separation should exist between government and religion and that under no circumstances should any government aid or benefits go to religion.76 This view seeks to achieve a secularist public square, with religion confined to a purely private role or presence.77 It sees religion as having little positive effect on public life, and most often having a negative effect.78 However, the separationist position contradicts the Ameri- can historical experience. According to Justice Story, the Establish- ment Clause merely helped to effectuate the inalienable right of free exercise by preventing any particular sect from being established at the national level.79 Indeed, the secularist view was wholly rejected by every justice on the Marshall court.80 And throughout the 19th

74 See Garry, Religious Freedom Deserves More than Neutrality: The Constitutional Argument for Nonpreferential Favoritism of Religion, supra note 4, at 4–6, 24, 40; Garry, supra note 21, at 1177. 75 See Garry, Religious Freedom Deserves More than Neutrality: The Constitutional Argument for Nonpreferential Favoritism of Religion, supra note 4, at 41. 76 See id. at 45 (outlining the purpose and effects of the separationist view). 77 Id. at 24–33. 78 See id. 79 2 Joseph Story, Commentaries on the Constitution of the United States 593–97 (2d ed. 1851). 80 Joseph McClellan, Joseph Story and the American Constitution 134 (1971). 676 Garry century and up until the mid-twentieth century, courts consistently endorsed the importance of religion in the nation’s public life.81 However, in 1947, the Court’s Establishment Clause jurisprudence took a turn. The infamous “wall of separation” metaphor was introduced to Establishment Clause jurisprudence in the 1947 case of Everson v. Board of Education82 and has since formed the constitutional basis for the modern separationist view.83 In upholding the constitutionality of a program allowing parents to be reimbursed for the costs of transporting their children to and from parochial schools, the Court gave its view of the Establishment Clause: “[T]he clause against establishment of religion by law was intended to erect a ‘wall of separation between church and state.’”84 As Justice Rehnquist later argued, the “greatest injury” done by the use of this metaphor has been in its “mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights.”85 Although early Ameri- cans may have believed in separating church and state, their purpose was not to protect the state from religion, but to protect religious institutions from being regulated and corrupted by the state. 86 The “wall of separation” metaphor lead in 1971 to Lemon v. Kurtzman,87 and subsequently courts during the 1970s and 1980s began taking a separationist view of religion that sharply contradicted the nation’s historical experience, interpreting the Establishment Clause as protecting a secular state and confining religion to the private realm.88 This separationist approach has often conveyed a

81 Douglas W. Kmiec & Stephen B. Presser, The American Constitutional Order: History, Cases, and Philosophy 185–86 (1998). 82 Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947). 83 For a discussion of the history of this metaphor, see Garry, supra note 62, at 494–500. 84 Id. at 15–16. 85 Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, J., dissenting). 86 Stephen Carter, Reflections on the Separation of Church and State, 44 Ariz. L. Rev. 293, 294 (2002). 87 Lemon v. Kurtzman, 403 U.S. 602, 611–12 (1971). In striking down two state statutes that provided public money to parochial schools, the Court articulated what would be known as the three-part Lemon test: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” Id. at 606, 613 (internal citation omitted). 88 Joseph Viteritti, Reading Zelman: The Triumph of Pluralism, and Its Effects on Liberty, Equality and Choice, 76 S. Cal. L. Rev. 1105, 1115–16 (2003). For a Vol. 12, No. 2 Northeastern University Law Review 677

“categorical opposition to the intermixing” of religion and politics.89 However, the framers never intended “to use the idea of separation to authorize discrimination against religion within the public sphere.”90 The “wall of separation” metaphor is appropriate only if one believes that there should be a limit on the public presence of religion, that religion should be a private matter, existing outside of the public square. However, the constitutional history of the First Amendment, as well as the American experience with religion and the public square, contradicts the notion that the Establishment Clause reflects a suspicion of religion and an opposition to its public presence.91 As Justice Goldberg observed:

Neither government nor this Court can or should ignore the significance of the fact that a vast portion of our people believe in and worship God and that many of our legal, political and personal values derive historically from religious teachings. Government must inevitably take cognizance of the existence of religion.92

The “wall of separation” metaphor does not even accurately reflect the beliefs of its original author, Thomas Jefferson.93 In his book, Thomas Jefferson and the Wall of Separation between Church and State, Daniel Dreisbach reveals the historical flaws behind the view that the First Amendment intended to create a “wall of separation”

discussion of how Everson misstated Jefferson’s views, how Jefferson was not a strict separationist, and how Jefferson was really concerned about limiting the federal government’s power to regulate religion, see David Steinberg, Thomas Jefferson’s Establishment Clause Federalism, 40 Hastings Const. L.Q. 277, 289–303 (2013). 89 Mark D. Rosen, Establishment, Expressivism, and Federalism, 78 Chi.-Kent L. Rev. 669, 688 (2003). 90 Michael Stokes Paulsen, Lemon is Dead, 43 Case W. Res. L. Rev. 795, 810 (1993) (emphasis omitted). 91 See generally Philip Hamburger, Separation of Church and State 481, 483–84 (2002) (arguing that the strict separationist view has little historical and constitutional support and that this view owes more to political forces). 92 Sch. Dist. v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring). 93 See Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State 125–26 (2002). 678 Garry between religion and government.94 Dreisbach argues that Jefferson’s “wall of separation” differs both in “function and location” from the “high and impregnable barrier erected in 1947 by Justice Hugo Black . . . in Everson v. Board of Education.”95 As Dreisbach explains: “Where- as Jefferson’s wall explicitly separated the institutions of church and state, Black’s wall, more expansively, separates religion and all civil government.”96 Consequently, the metaphor as used in the Court’s Establishment Clause jurisprudence is not grounded in Jeffersonian principles. This modern judicial misreading of Jefferson’s “wall of separation” metaphor was well documented by Justice Rehnquist in his dissent in Wallace v. Jaffree:97

It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years. Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the states. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary

94 See id. Dreisbach argues that Jefferson’s actions throughout his public career show that he believed state governments could accommodate religious exercises. Id. at 59–60. Dreisbach is not alone; many other works examine the historical origins of the wall of separation. See generally Philip Hamburger, supra note 91; John Witte, Jr., Religion and the American Constitutional Experiment: Essential Rights and Liberties (2000); Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995); John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279 (2001); J. Clifford Wallace, The Framers’ Establishment Clause: How High the Wall?, 2001 BYU L. Rev. 755. The historical record demonstrates that, in the years leading up to adoption of the First Amendment, the colonies, states, and Continental Congress frequently enacted legislative accommodations to religions and religious practices; there is “no substantial evidence that anyone at the time of the Framing viewed such accommodations as illegitimate, in principle.” Michael McConnell, Accommodation of Religion, 60 Geo Wash. L. Rev. 685, 693 (1992). 95 Dreisbach, supra note 93, at 125. 96 Id. 97 Wallace v. Jaffree, 472 U.S. 38, 91–114 (1985) (Rehnquist, J., dissenting). Vol. 12, No. 2 Northeastern University Law Review 679

history as to the meaning of the Religion Clauses of the First Amendment. … Whether due to its lack of historical support or its practical unworkability, the Everson “wall” has proved all but useless as a guide to sound constitutional adjudication.”98

Jefferson’s metaphor has been distorted in the attempt to push religion to the margins of civil society. In the words of Justice Goldberg, the strict separationist approach carries an attitude of “a brooding, and pervasive devotion to the secular and a passive, or even active, hostility, to the religious.”99 Under the influence of the “wall of separation” metaphor, establishment doctrines have sought to reduce the public role of religion and the civil government’s interaction with religion.100 But the fact that the religion clauses are even included in the First Amendment proves that, to the framers, religion was not like everything else. Religion was something special, deserving of extra protection.

2. Separationism and the Endorsement Test The endorsement test has “become the preeminent analytical tool employed in Establishment Clause cases involving religious symbols” and expression on public property.101 This test has taken the “wall of separation” metaphor one step further. Not only does it contain a presumption that religion should remain private, but it affirmatively sides with those who may object to or be offended by religion’s public presence.102 Thus, an examination of the endorsement test reveals the nature and effects of a separationist view of the Establishment Clause. Steven Smith describes how this test and the legacy of the Court’s “wall of separation” approach has resulted in the “constitu- tionalization of political secularism.”103 Instead of being used to foster a diversity of religions, while not establishing any one religion, the Establishment Clause under the “wall of separation” approach has “effectively establish[ed] political secularism as an official and

98 Id. at 92, 107. 99 Sch. Dist. v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring). 100 Carter, supra note 86, at 309. 101 Lopez, supra note 25, at 195. 102 See Garry, supra note 21, at 678–81. 103 Steven Smith, Nonestablishment, Standing, and the Soft Constitution, 85 St. John’s L. Rev. 407, 427 (2011). 680 Garry enforceable national orthodoxy.”104 According to the proponents of a broadly-enforced Establish- ment Clause, the Clause serves to remedy any sense of exclusion or alienation felt by those who disagree with the public expression of religion.105 Under this view, the only way to combat the isolation or alienation that dissenters to religion might feel is to ban all religious messages from public property.106 But the First Amendment focuses on freedom, not social engineering. The whole purpose of religious faith and exercise is to confront people and make them uncomfortable with the status quo of their lives. Moreover, if government actions ever rise to the point of truly excluding minority beliefs from the public square, then the Free Exercise Clause should come into play, since government is then targeting certain beliefs for discriminatory treatment. The application of the endorsement test often favors dissenting minorities.107 The court took this approach in Buono v. Norton, where it ordered that a cross be removed from a federal preserve.108 The cross was a memorial to veterans who died in World War I; it had been erected by the Veterans of Foreign Wars in 1934, 60 years before the land on which the cross stood was made part of the federal preserve.109 Approximately 130,000 acres comprised the preserve, and the cross, which was less than eight feet tall, stood on undeveloped land that was well off of one of the narrow secondary roads winding through the preserve.110 Thus, it follows logically that almost all the viewers of this cross were automobile travelers

104 Id. at 431. 105 See Patrick M. Garry, Distorting the Establishment Clause Into an Individual Dissenter’s Right, 7 Charleston L. Rev. 661, 678–81 (2013). 106 Lopez, supra note 25, at 224. “[T]he Establishment Clause should . . . create a strong presumption against the display of religious symbols . . . [because] [t]here is always a risk that such symbols will offend nonmembers of the faith being advertised.” Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 650–51 (1989), abrogated by Town of Greece, N.Y. v, Galloway, 572 U.S. 565 (2014). “A paramount purpose of the Establishment Clause is to protect such a person from being made to feel . . . a stranger in the political community.” Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S 753, 799–800 (applying the endorsement test). 107 See, e.g., Buono v. Norton, 212 F. Supp. 2d 1202 (C.D. Cal. 2002), aff’d, 371 F.3d 543 (9th Cir. 2004). 108 Id. at 1215–17. For the Supreme Court decision in this case, although that decision did not rule on Establishment Clause grounds, see Salazar v. Buono, 559 U.S. 700 (2010). 109 Buono, 212 F. Supp. 2d at 1205. 110 Id. Vol. 12, No. 2 Northeastern University Law Review 681 who had made a conscious decision to drive through that particular secondary road. But, contrary to free speech cases, the court did not require offended viewers to take any steps to avoid the harm, such as taking another road or not looking up at the cross as their car passed by.111 The court also seemed indifferent to the context of the cross, concluding that the size of the cross and the number of people who view it are not relevant to whether a reasonable observer would perceive the cross as a governmental endorsement of religion.112 Under the endorsement test, the rights of a religious dissenter have practically no specific boundaries. Since perception is the key to endorsement test cases,113 seemingly nothing is too minute to rise to an official government endorsement of religion.114 Private reli-

111 Regarding listeners who do not want to hear unwanted or offensive speech, the courts require that they bear the full burden of averting their eyes or ears. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 209–12 (1975) (striking down an ordinance prohibiting drive-in movie theaters from exhibiting nudity and holding that the burden falls upon the unwilling viewer to “avert his eyes”) (quoting Cohen v. California, 403 U.S. 15, 21 (1971)). See also Patrick M. Garry, The Right to Reject: The First Amendment in a Media-Drenched Society, 42 San Diego L. Rev. 129, 143–44 (2005). 112 Buono, 212 F. Supp. 2d at 1216. Although there was no plaque in Buono, the existence of such a plaque, explaining how and why the cross had been erected, may not have mattered. In Separation of Church & State Comm. v. City of Eugene, 93 F.3d 617, which the court refers to in Buono, the Buono court stated:

With regard to whether the presence of the cross has a primary effect that advances or inhibits religion, or conveys a message of governmental endorsement or disapproval of religion, the court is bound by SCSC, which, in applying the effect prong, concluded that the presence of a particular cross on government land violated the Establishment Clause. The SCSC court, faced with facts materially indistinguishable from those in the action at bar, assessed the constitutionality of a latin cross that was erected by private individuals. 93 F.3d at 618. These individuals deeded the cross to the City of Eugene, which placed a plaque “at the foot of the cross dedicating it as a memorial to war veterans.”

Buono at 1215. 113 Under the endorsement test, impermissible government involvement with religion exists when the public perceives that government is endorsing a religion. See Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring) (discussing the endorsement test and the importance of determining what message the government communicates in its activities). 114 One such endorsement was found with an Ohio school district, whose policy permitted non-profit community groups such as Little League, the Red Cross and the YMCA to distribute leaflets advertising their activities. See Rusk v. 682 Garry gious speech conducted on public property can rise to the level of an establishment, even when the government is not officially sponsoring or sanctioning that speech, lest the perception mistakenly occur that the government is so sponsoring.115 The endorsement test examines government conduct from both an objective and subjective viewpoint, recognizing that the message sent by the conduct may be different from the message re-

Crestview Local Sch., 220 F. Supp. 2d. 854, 855 (N.D. Ohio 2002). Religious groups could also distribute their materials, but only after the principal scrutinized those leaflets, ensuring that they only advertised specific activities and did not engage in any proselytizing. See id. Moreover, the leaflets were not even handed out personally to the children; they were placed in mailboxes from which students could retrieve them at the end of the school day. Id. Yet despite all these precautions, the court held that the practice of distributing religious material to students could be construed as an endorsement of religion by the school. See id. at 858. In another case, the singing of “The Lord’s Prayer” by a high school choir was found to violate the Establishment Clause. See Skarin v. Woodbine Cmty. Sch. Dist., 204 F. Supp. 2d 1195, 1198 (S.D. Iowa 2002). According to the court, just the rehearsal of that song during choir practice was enough to constitute a violation. See id. Even a city’s leasing of land to the Boy Scouts on favorable lease terms was held to be an unconstitutional establishment of religion. See Barnes-Wallace v. Boy Scouts of Am., 275 F. Supp. 2d 1259, 1287 (S.D. Cal. 2003), aff’d in part, rev’d in part sub nom. Barnes- Wallace v. City of San Diego, 704 F.3d 1067 (9th Cir. 2012). 115 In Capital Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995), involving a private group’s placement of a cross in a public plaza next to the state capitol, the court ruled that the display did not violate the Establishment Clause. However, the plurality left open the possibility that the Establishment clause might be violated if the government “fostered or encouraged” the mistaken attribution of private religious speech to the government. Id. at 766. Justice O’Connor noted that “an impermissible message of endorsement can be sent in a variety of contexts, not all of which involve direct government speech or outright favoritism.” Id. at 774 (O’Connor, J., concurring in part and concurring in the judgment). This may occur “even if the governmental actor neither intends nor actively encourages [the endorsement].” Id. at 777. Thus, the Establishment Clause imposes on the government “affirmative obligations that may require a State, in some situations, to take steps to avoid being perceived as supporting or endorsing a private religious message.” Id. Consequently, even though Justice O’Connor joined in the majority opinion which stated that “private religious speech . . . is as fully protected under the Free Speech Clause as secular private expression.” Id. at 760. She also announced that the Establishment Clause limits the Free Speech Clause’s protection of private religious speech when that speech occurs on government property or in other contexts in which the speech becomes associated with the government. Id. at 772 (O’Connor, J., concurring in part and concurring in the judgment). The problem is, of course, how to determine when private speech “becomes associated” with the government. Vol. 12, No. 2 Northeastern University Law Review 683 ceived.116 This subjectivity regarding the possible impressions that unknown viewers might have of a religious display renders the endorsement test incapable of certainty.117 Justice Kennedy argues that the endorsement test reflects “an unjustified hostility toward religion” and a “callous indifference toward religious faith that our cases and traditions do not require.”118 Justice Gorsuch echoed this criticism toward the endorsement test and its underlying basis in his American Legion concurrence.119 He articulated a blistering objection to the notion of the “offended observer” theory of standing in Establishment Clause jurisprudence.120 And if offense cannot give rise to standing, it cannot form the basis of an Establishment Clause violation. As Justice Gorsuch recognized: “In a large and diverse country, offense can be easily found[;] . . . most every governmental action probably offends somebody.”121

3. The Endorsement Test as a Dissenter’s Right The endorsement test often diverts the courts from the essential focus of the Establishment Clause—i.e., state interference in the institutional autonomy of religious organizations—and turns it instead to all the possible ways in which a religious dissenter might object to or feel uncomfortable with religious expressions or symbolism on public property. The endorsement test rests in part on Justice O’Connor’s premise that the Establishment Clause prohibits the government from sending messages which divide the community into outsiders and insiders.122 In Lynch v. Donnelly, Justice O’Con- nor wrote that “[e]ndorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”123

116 See Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring). 117 See Smith, supra note 28, at 300–01. 118 Cty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 655, 644 (1989). 119 Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2101 (2019) (Gorsuch, J., concurring). 120 Id. at 2100–02. 121 Id. at 2103 (emphasis omitted). 122 See Lynch v. Donnelly, 465 U.S. 668, 688, 692 (1984) (O’Connor, J., concurring) (stating that government actions endorsing religion “make religion relevant, in reality or public perception, to status in the political community”). 123 Id. at 687–88 (O’Connor, J., concurring) (“The Establishment Clause prohibits 684 Garry

Strict separationists argue that religious speech can be socially and politically divisive, and hence should be discouraged from entering the public sphere.124 They argue that the Establishment Clause should protect anyone who might suffer a sense of alienation because of their nonbelief.125 As strict separationists argue, the First Amendment should promote a sense of inclusion and combat the isolation that minority groups feel; and the only way to do this may be to “ban all permanent religious messages from public grounds.”126 But such a reading gives a heckler’s veto to anyone who objects to religious speech in the public square, thereby endangering the right to free speech.127 4. The Establishment Clause as Social Policy The dissenter’s right created by the separationist view in general and the endorsement test in particular rests perhaps less on constitutional history than on a certain social view of religion in which religion can be a destructive force within society. Of all the issues and conflicts in society, according to this view, religion is the

government from making adherence to a religion relevant in any way to a person’s standing in the political community.”). 124 See Douglas Laycock, Freedom of Speech That is Both Religious and Political, 29 U.C. Davis L. Rev. 793, 801 (1996). But all these arguments ignore the political and socially unifying effects that religion has had. For instance, the abolition movement relied heavily on religious argument. See Sydney E. Ahlstrom, A Religious History of the American People 648–69 (1972). Likewise, religious activists and arguments led the way in the civil rights movement. Edward M. Gaffney, Jr. Politics Without Brackets on Religious Convictions, 64 Tul. L. Rev. 1143, 1168–71 (1990). And rather than undermining civic values, the evidence indicates that religious institutions have historically served as a foundation for civic life in America. See Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community 65- 69 (2000); William A. Galston & Peter Levine, America’s Civic Condition: A Glance at the Evidence, in Community Works: The Revival of Civil Society in America 30, 33–34 (E.J. Dionne, Jr. ed., 1998). 125 See Lopez, supra note 25, at 218 (citing examples of threats and harassment made against religious dissenters and those who take court action to oppose public displays of religion). 126 Id. at 224. 127 See Richard Duncan, Just Another Brick in the Wall: The Establishment Clause as a Heckler’s Veto, 18 Tex. Rev. L. & Pol. 255, 264–65 (2014) (stating that “the evil in heckler’s veto situations is that it empowers hecklers to ‘silence any speaker of whom they do not approve.’”). As Richard Duncan observes, the “endorsement test has been used by the Court as a vehicle for allowing offended observers . . . to impose heckler’s vetoes on harmless religious expression in the public culture.” Id. at 277. Vol. 12, No. 2 Northeastern University Law Review 685 most divisive—and divisive in a way that uniquely threatens society.128 But if divisiveness becomes a controlling factor, then the Establishment Clause may no longer focus on constitutional intent or history, but rather on achieving certain social and cultural conditions; indeed, if social divisiveness becomes a controlling constitutional principle, the “wall of separation” metaphor and the endorsement test can be used to shield a secular society and its public square, as well as opponents of religion, from certain controversies and conflicts that naturally arise in a democracy containing religious constituencies and viewpoints. This view reflects a fear that the failure to keep the religious and political spheres separate will lead to social strife along religious lines and a fragmentation of the political community.129 Of course, the most effective way to keep religion private and out of the public arena is to silence religion with laws stop- ping religious believers from speaking out on controversial issues. In their Zelman v. Simmons-Harris dissents, reflecting the religion-as-divisive view, Justices Stevens and Breyer, for instance, argue that the extension of any public aid to religion would foster political discord and tear the social fabric underlying American democracy.130 Drawing on experiences from the Balkans, Northern Ireland and the Middle East, Justice Stevens wrote: “Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.”131 Justice Breyer likewise noted that “the Establishment Clause concern for protecting the Nation’s social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program.”132 In McCreary County v. ACLU, Justice Souter’s opinion, striking down

128 For a discussion of this political divisiveness argument, see Garry, supra note 71, 608–10. 129 See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 718–729 (2002) (Breyer, J., dissenting). Another concern includes not making a person’s standing in the political community turn on her religion. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 687–88 (1984) (O’Connor, J., concurring). As one commentator has noted, “it is plausible to conclude that today’s Establishment Clause doctrine communicates at least one thing very clearly: that the intermingling of political and religious authority is categorically bad.” Rosen, supra note 89, at 685. 130 See Zelman, 536 U.S. at 684–86 (Stevens, J., dissenting); id. at 717 (Breyer, J., dissenting). 131 Id. at 686 (Stevens, J., dissenting). 132 Id. at 717 (Breyer, J., dissenting). 686 Garry a Ten Commandments display in a county courthouse, stated that “nothing does a better job of roiling society” than any perceived interaction between government and religion.133 Justice Breyer further asserted his religion-as-politically-divisive theme in Van Orden v. Perry, where he supported a Ten Com- mandments monument on the Texas State Capitol grounds, arguing that in this case the monument was “unlikely to prove divisive.”134 According to Justice Breyer, the purpose of the Establishment Clause is to avoid “divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike.”135 This is not a new argument. Chief Justice Warren Burger used it in his Lemon opinion, in which he wrote that “[o]rdinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.”136 Echoing these sentiments, Justice Marshall in Wolman v. Walter found that an Ohio program that provided public assistance to schools, including religious ones, violated the Establishment Clause because the aid risked “political ‘divisiveness on religious lines.’”137 But this avoidance of strife argument runs exactly counter to the whole purpose behind the Free Speech and Free Exercise clauses of the First Amendment. Moreover, the acceptance of this argument serves to effectively censor particular viewpoints from public discourse. Essentially, this argument rationalizes the “freedom from religion” notion that sees religion as a threat to society and seeks to drive religion out of the public square and confine it to the private realm. The argument also contradicts the whole thrust of recent equal protection norms, insofar as it seeks to single out particular

133 McCreary Cty. v. ACLU, 545 U.S. 844, 876 (2005). According to Justice Souter, America is “centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.” Id. at 881. 134 Van Orden v. Perry, 545 U.S. 677, 704 (2005) (Breyer, J., concurring). 135 Id. at 698. 136 Lemon v. Kurtzman, 403 U.S. 602, 622 (1971). According to the Chief Justice, the “potential divisiveness of such conflict is a threat to the normal political process,” since it “would tend to confuse and obscure other issues of great urgency.” Id. at 622–23. 137 Wolman v. Walter, 433 U.S. 229, 259 (1977) (Marshall, J., concurring in part and dissenting in part) (internal citation omitted). Vol. 12, No. 2 Northeastern University Law Review 687 voices or viewpoints for discriminatory treatment.138 Indeed, if the fear of social divisiveness is so well-founded and powerful, then why are certain controversial views related to race or sexual preference not subject to regulation?139 This approach also contradicts Madison’s view that the only way to counter social division was to encourage an even greater pluralism.140 As Madison outlined in Federalist Paper No. 10, the threat of majority tyranny can be remedied by a diverse political landscape composed of many competing groups and interests.141 And the same holds true for religion. Madison argued in Federalist Paper No. 12 that the way to guard against the oppression of minority religions was to promote a robust religious pluralism.142 The religion-as-socially-divisive view is thus a conclusory opinion that ignores all the evidence of religion’s positive social contributions over the centuries, assigning to the Court the role of squashing any conflicts that might arise from the religious practices of a diverse people.143 To the extent that the separationist view rests on a view of religion as unacceptably divisive, it grounds the Establishment Clause on considerations of what kind of a modern culture and society is desired. In effect then, the view seeks to use the Establishment Clause as a broad regulatory power to achieve that desired society. But if the separationist view envisions religion as an oppressive force used by a

138 For a discussion of how the Court’s treatment of religious freedom differs from its treatment of speech freedoms, see Patrick M. Garry, An Inequality Among Equals: Disparities in the Judicial Treatment of Free Speech and Religious Exercise Claims, 39 Wake Forest L. Rev. 361 (2004). 139 For an excellent discussion of the religion-as-politically-divisive view and how this view underlies the separationist position, see Richard W. Garnett, Religion, Division, and the First Amendment, 94 Geo. L.J. 1667, 1674 n.40, 1676 n.62, 1705 (2006). 140 See Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 35–36, 42–58 (1996). 141 See The Federalist No. 10 (James Madison). 142 See The Federalist No. 10 (James Madison). 143 The U.S. is one of the most religious countries in the world. See Stephen J. Stein, Religion/Religions in the United States: Changing Perspectives and Prospects, 75 Ind. L.J. 37, 41 (2000). Yet, there is little of the sectarian strife that plagues much of the rest of the world. Rather than serving to undermine civic values, the weight of evidence indicates that religious institutions have historically served as a foundation for civic life in America. Putnam, supra note 124, at 65–69. In the opinion of the author of this article, even if one does accept the premise that religion is divisive, that reason alone is not sufficient to single it out for more restrictive treatment, just as this reason cannot justify the censorship of highly controversial and inflammatory political speech. 688 Garry

Christian majority to coerce the rest of society, this assumption may now be factually erroneous, given the state of religious observance in general and membership in Christian denominations in particular.

B. The Accommodationist View Contrary to the separationist view, the accommodationist view sees religion as an historic and valuable element of civil society, and believes that the government should accommodate this element on a nondiscriminatory basis.144 This view recognizes that the constitutional framers believed that a strong religious presence in society served a vital role in the maintenance of American democracy.145 Believing that the Establishment Clause grew out of this constitutional sentiment, accommodationists assert that the Clause protects a free and vibrant religious presence in America.146 Under this view, the Establishment Clause provides a protection for religious liberty over and above the Free Exercise Clause.147 While a secular government may be a result, the Establishment Clause does not serve as a specific promoter of secularism within society. And the protection for religion provided by the Establishment Clause, recognizing that the pursuit of religious truth represents a valuable human endeavor, occupies the opposite end of the spectrum from the notion of protection from religion, which sees religion as dangerous.148 In 18th century America, “[a]ccommodations of religion . . . were frequent and well known, and no one took the position that they constituted an establishment of religion.”149 The framers of

144 For a discussion of the accommodationist view, see Garry, Religious Freedom Deserves More than Neutrality: The Constitutional Argument for Nonpreferential Favoritism of Religion, supra note 4, at 37–42. 145 See id. at 37–38. 146 See id. at 39–42. 147 See id. at 42. 148 See id. 149 McConnell, supra note 94, at 714. Generally, whenever conflicts occurred between civil law and religious belief, the latter was accommodated; and these accommodations were never seen as amounting to impermissible establishments. Id. at 714–15. In fact, such establishment claims were never even raised during the colonial and constitutional periods. See Mark Chopko, Religious Access to Public Programs and Governmental Funding, 60 Geo. Wash. L. Rev 645, 645–46 (1992). In those periods, it was religious organizations that performed social services, including education. See William C. Bower, Church and State in Education 23–24 (1944). It was government that “depended on the support of the churches for stability, a sense of shared Vol. 12, No. 2 Northeastern University Law Review 689 the First Amendment “did not think that the government should adopt a position of being . . . religious or certainly anti-religious.”150 To them, the Pilgrims had not journeyed to America just to live in a society void of religion.151 The framers believed, as for instance did George Washington, that “religion and morality [were the] indispensable supports” for democratic government.152 According to Washington, “religion . . . [was] inseparable from good government, and . . . no true patriot . . . would attempt to weaken the . . . political . . . influence of religion and morality.”153 De Tocqueville likewise observed that the early Americans considered religion “necessary to the maintenance of republican institutions.”154 During the constitutional period, “churches were the primary institutions for the formation of democratic character and the transmission . . . of community values.”155 But the framers did not want to duplicate the English experience with the established Angli- can church.156 They did not want a federally-sponsored religion that

morality among the citizenry, and a common commitment to the protection of the greater good of the community.” Chopko, supra, at 647. 150 See Chester James Antieau et al., Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses 187–88 (1964) (describing the Framers’ understanding of the presence of religious ideals in governmental institutions). 151 See 1 Anson Phelps Stokes, Church and State in the United States 153–55, 227 (1950) (arguing that the Puritans had journeyed to America for the freedom to publicly practice their religion). And many other religious dissenters, including Catholics, had come for the same reason. Id. at 227–28. 152 President George Washington, Washington’s Farewell Address, (Sept. 17, 1796), in 1 Documents of American History 169, 173 (Henry S. Commager ed., 1973). 153 David Barton, The Image and the Reality: Thomas Jefferson and the First Amendment, 17 Notre Dame J. L. Ethics & Pub. Pol’y 399, 428 (2003). And yet, those who advocate reading the Establishment Clause broadly ignore these proclamations from such a constitutional expert as Washington, and instead focus on their own interpretations of the Jeffersonian statement regarding a wall of separation between church and state. 154 Alexis de Tocqueville, Democracy in America 293 (J.P. Mayer ed., 1969). He came to agree with this position, arguing that religion was desperately needed in a democratic republic. Id. at 294. 155 See Michael W. McConnell, Why is Religious Liberty the “First Freedom”?, 21 Cardozo L. Rev. 1243, 1253 (2000). 156 See, e.g., Walz v. Tax Comm’n of N.Y.C., 397 U.S. 664, 668 (1970) (“[F]or the men who wrote the Religion Clauses of the First Amendment the ‘establishment’ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.”). 690 Garry would interfere with the beliefs or existence of other religious denominations; nor did they want the federal government to corrupt or weaken religions by funding and regulating them.157 Thus, it was for the purpose of strengthening religion that the Establishment Clause was drafted.158 Not only did late 18th century Americans fail to see religion as a politically divisive threat to democracy, and hence the Establish- ment Clause as protecting secular society from religion, they also saw religion as a vital element in the functioning of a democracy.159 To Americans of the constitutional period, religion was an indispensable ingredient to self-government.160 The constitutional fram-

157 See id.; see also McConnell, supra note 155, at 1253–57. 158 See McConnell, supra note 155, at 1255 (“Americans of the founding era widely recognized that establishing religion–granting it exclusive privileges and emoluments and protecting it from the need to compete in the marketplace of ideas–would weaker religion, not strengthen it.). 159 See id. at 1253–57 (“[I]n the early years of the American republic, few would have perceived any conflict between a religious citizenry and liberal republicanism.”). 160 Tocqueville likewise observed that the early Americans considered religion “necessary to the maintenance of republican institutions.” Tocqueville, supra note 154, at 293. He came to agree with this position, arguing that religion was desperately needed in a democratic republic. Id. at 294. Jefferson, in his Notes on Virginia, expressed the sentiment that belief in divine justice was essential to the liberties of the nation: “And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?” Thomas Jefferson, The Life and Selected Writings of Thomas Jefferson 278-79 (Adrienne Koch & William Peden eds., 1944). Political writers and theorists emphasized the need for a virtuous citizenry to sustain the democratic process. For a discussion on the influence of republican thought on the writing of the Constitution, see generally Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of The American Founders and the Philosophy of Locke (1988). John Adams believed there was “no government armed with power capable of contending with human passions unbridled by morality and religion.” 9 The Works of John Adams 229 (Charles Frances Adams ed., 1850). He wrote that “[r]eligion and virtue are the only foundations, not of republicanism and of all free government but of social felicity under all governments and in all the combinations of human society.” The Spur of Fame: Dialogues of John Adams and Benjamin Rush 192 (John A. Schutz & Douglass Adair eds., 1966). According to Benjamin Rush: “The only foundation for a useful education in a republic is to be laid in religion. Without it there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments.” Brian C. Anderson, Secular Europe, Religious America, 155 Pub. Int. 143, 152 (2004). Vol. 12, No. 2 Northeastern University Law Review 691 ers “saw clearly that religion would be a great aid in maintaining civil government on a high plane,” and hence would be “a great moral asset to the nation.”161 Late 18th century Americans generally agreed that the only solid ground for the kind of morality needed to build a virtuous citizenry lay with religious observance.162 Religion, the Founders believed, fostered republicanism.163 Consequently, the notion that the First Amendment was intended to foster a strict policy of state neutrality or indifference toward religion would have been met with, to use Justice Story’s words, “universal disapprobation, if not universal indignation.”164 It was the separation of a specific church from state, not the separation of all religion from the state, that was the aim of the framers.165 The framers rejected the idea of an established church, but they had no problem with government accommodations of private religion.166 The Bill of Rights was ratified in an age of close and ongoing interaction between government and religion.167 For example, in the Northwest Ordinance, Congress even set aside land to endow

161 Stokes, supra note 151, at 515. A 1788 New Hampshire pamphleteer expressed the prevailing view: “[C]ivil governments can’t well be supported without the assistance of religion.” 4 The Complete Anti-Federalist 242 (Herbert J. Storing, ed., 1981). 162 J. William Frost, Pennsylvania Institutes Religious Liberty, in All Imaginable Liberty: The Religious Liberty Clauses of the First Amendment 45 (Francis Graham Lee ed., 1995). 163 Richard Vetterli & Gary C. Bryner, Religion, Public Virtue, and the Founding of the American Republic, in Toward a More Perfect Union: Six Essays on the Constitution 91–92 (Neil L. York ed., 1988). 164 Daniel L. Dreisbach, Real Threat and Mere Shadow: Religious Liberty and the First Amendment 72 (1987) (citation omitted). 165 Since law was an expression of morality, and since morality derived from religion, it was seen as both impossible and undesirable to completely separate state from religion. Id. According to the constitutional framing generation, a “belief in religion would preserve the peace and good order of society by improving men’s morals and restraining their vices.” Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2197 (2003). 166 Joseph P. Viteritti, Choosing Equality: School Choice, the Constitution, and Civil Society 16 (2d ed. 2001). And those who advocated government support of religion saw it as “compatible with religious freedom”; they did not equate it with establishment. Thomas J. Curry, The First Freedoms: Church and State in America to the passage of the First Amendment 217 (1987). 167 Ellis Sandoz, A Government of Laws: Political Theory, Religion, and the Founding 18–19 (1990). 692 Garry schools that would teach religion and morality.168 Therefore, a strict separationist view of the Establishment Clause does not represent the views of the founding generation.

V. The Relationship Between The Religion Clauses

A. The Clauses Are Not in Conflict Separationists often see the two religion clauses of the First Amendment—the Free Exercise Clause and the Establishment Clause—as opposing forces.169 While the Free Exercise Clause protects religious liberty, the Establishment Clause places boundaries around that liberty, insofar as it is expressed in the public square.170 But to see these two clauses in tension, with one somewhat negating the other, is to ignore the overall focus on liberty that is present in the First Amendment.171 The two religion clauses work in different directions, but both serve the cause of religious liberty. Whereas the Free Exercise Clause operates on the level of individual liberty, the Establishment Clause should work on an institutional level to prevent government from interfering with religious organizations by becoming a religious actor itself, through either aligning itself with one denomination or creating its own denomination. Indeed, as the constitutional generation foresaw, the kind of strict separation of church and state that twentieth-century separationists would later espouse would hinder the free exercise of religion.172 The framers never intended “to use

168 The Northwest Ordinance is reprinted in a footnote to Act of Aug. 7, 1789, ch.8, 1 Stat. 50. Edwin Gaustad, Religion and Ratification, in The First Freedom: Religion and the Bill of Rights 54–56 (James E. Wood ed., 1990). 169 See Garry, supra note 21, at 1158–59. 170 Id. 171 The Court recently ruled that the government cannot justify discriminatory treatment against religion because of fears of an Establishment Clause violation arising from granting aid to religion on a neutral basis. Trinity Lutheran Church of Columbia v. Comer, 137 S. Ct. 2012 (2017) (ruling that Missouri’s refusal to allow a church to participate in a program offering grants to qualifying nonprofit organizations purchasing playground surfaces made from recycled tires violated the Free Exercise Clause). 172 Story, supra note 79, at 593–97. According to Story, the Establishment Clause merely helped to effectuate the inalienable right of free exercise by preventing any particular sect from being established, at the national level. Id. Moreover, the constitutional intent behind separation of church and state was as a means of protecting religion, not the secular state. Carter, supra note 86, at 296. Vol. 12, No. 2 Northeastern University Law Review 693 the idea of separation to authorize discrimination against religion within the public sphere.”173 During the constitutional period, the impetus for the Estab- lishment Clause grew out of the same concern that led to the Free Exercise Clause.174 As Professor Feldman has argued, both clauses were intended to protect freedom of religious worship and the right to exercise one’s religious beliefs.175 To the Founders, the Establish- ment Clause sought to protect religious liberty by dictating institutional boundaries between the state and religion.176 Indeed, the debates over the First Amendment religion clauses at the state rat- ifying conventions focused on protecting religious liberty and guaranteeing equality among religious sects.177 This focus shows that the Establishment Clause is not a protection from religion, as many separationists claim.178

173 Paulsen, supra note 90, at 810 (emphasis omitted). 174 For a discussion of how James Madison’s views on religious establishments stemmed not from his opposition to religion but from his fears about how establishments would threaten religious liberty, see Andy Olree, Pride Ignorance and Knavery: James Madison’s Formative Experiences with Religious Establishments, 36 Harv. J.L. & Pub. Pol’y 211 (2013). 175 See Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. Rev. 346, 381–84, 398–402 (2002). 176 Noah Feldman, Divided by God: America’s Church-State Problem—And What We Should Do About It 52 (2005). According to Feldman, the impetus behind the religion clauses “was to protect the liberty of conscience.” Id. at 20. But religious liberty, and certainly the liberty to join and function within a religious organization, would be restricted if government intruded into that organization or if government gave preferential treatment to some other religious organization. The Establishment Clause was not focused on forbidding “public religious symbolism” so as to prevent offending secular society. Id. at 50. As Feldman argues, the First Amendment served to separate the institutions of government and religion, not to separate religion from public life. Id. at 52. 177 Steven K. Green, A Spacious Conception: Separationism as an Idea, 85 Or. L. Rev. 443, 469–70 (2006). Moreover, Professor Derek Davis, in his study of the Continental and Confederation Congresses, recognizes that the focus or nature of Congress’ religious activity “operated almost exclusively within an accommodationist paradigm.” Derek H. Davis, Religion and the Continental Congress 1774-1789: Contributions to Original Intent 227 (2002). 178 See Robert G. Natelson, The Original Meaning of the Establishment Clause, 14 Wm. & Mary Bill Rts. J. 73, 89–90 (2005) (arguing that, consequently, since the Establishment Clause exists to serve the Free Exercise Clause, “then in the event of conflict, the former must yield”). For a discussion on the unitary or harmonious relationship between the two religion clauses, see Patrick M. Garry, Wrestling with God: The Courts’ Tortious Treatment 694 Garry

B. The Institutional Focus of the Establishment Clause The most obvious way in which the Establishment Clause protects the institutional autonomy of religious organizations is through a kind of equal protection application.179 Significant historical research supports the notion that the Establishment Clause requires not that the government refrain from any aid to or recognition of religion, but that when it does so it treats all religious sects the same and does not give preferential treatment to any select sect.180 This equal protection aspect was “designed to buttress free exercise by requiring the federal government, to the extent its legislation touched religion, to treat all faiths in a non-discriminatory manner.”181

of Religion 129–31 (2007); Garry, supra note 21, at 1158–60, 1163–71. 179 This individual-institutional distinction can also be seen in some of the Court’s decisions regarding the constitutionality of government aid, in which the Court is more likely to uphold public aid to an individual who uses the money for religious purposes than it is to uphold aid given to religious institutions engaged in religious activities, and in the way the notion of entanglement is applied only to institutions under the Establishment Clause. See Ira C. Lupu & Robert Tuttle, The Distinctive Place of Religious Entities in Our Constitutional Order, 47 Vill. L. Rev. 37, 81–82 (2002). In his survey of establishments in England and the colonies during the pre- constitutional period, Michael McConnell lists six basic characteristics or elements of an established religion: state control over the doctrines and structure of the state religion; mandatory public membership in the state religion; governmental financial support of the state religion; a restriction on any other religions; the involvement of the state religion in state civil affairs; and limiting political participation to members of the state religion. See McConnell, supra note 165, at 2131, 2146, 2159, 2169, 2176. But each of these elements of establishment relate to institutional aspects of religions. Anti-discrimination and equal protection concerns are at the heart of the Establishment Clause. See Steven Calabresi & Abe Salander, Religion and the Equal Protection Clause, 65 Fla. L. Rev. 909, 1010, 1030 (2013). Professor Michael Paulsen likewise argues that the Establishment Clause should be applied under an equal protection approach. Michael Paulsen, Religion, Equality and the Constitution, 61 Notre Dame L. Rev. 311, 326 (1986). 180 See Natelson, supra note 178, at 124–25 (stating that during the constitutional period establishment was thought to mean some “mechanism whereby one denomination or group of denominations was favored over others”). Although the clause allowed the government to favor religion over nonreligion, it prohibited any discrimination among religious sects. Id. at 135 (stating that this can explain “why the same houses of Congress that adopted the Establishment Clause saw no inconsistency in hiring chaplains to offer prayers or in resolving to reserve ‘a day of public thanksgiving and prayer’”). 181 Id. at 138 (noting that the Establishment Clause extended no protection to the Vol. 12, No. 2 Northeastern University Law Review 695

The Establishment Clause thus has an institutional focus, protecting the autonomy of religious institutions from state intrusion into the functions, powers, or identity of a religious organization.182 Rather than reflect a mistrust of religion, it should protect religious institutions from intrusive or discriminatory treatment by the state. This interpretation differs sharply from the separationist theory, which uses the Clause to separate religion from civil society and to dramatically redefine society along strictly secular lines.183 However, having earlier diverted from the historical meaning of the Establishment Clause with its Lemon-era use of the “wall of separation” metaphor, the Court has been inching perhaps toward a more accurate use of the Clause as a pro-religious liberty provision. In 2012, for instance, the Court for the first time applied the Clause to shield religious institutions from intrusive government regulation that sought to determine who would serve as religious ministers.184 Thus, the Court used the Clause not as a protection of

irreligious, since those “who did not believe in God did not have a ‘religion’ within the meaning of the First Amendment and had no standing under that Amendment”). As Justice Rehnquist stated in his dissent in Wallace v. Jaffree, the Founders intended for the Establishment Clause only “to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. [They] did not see it as requiring neutrality on the part of government between religion and irreligion.” Wallace v. Jaffree, 472 U.S. 38, 98 (1985) (Rehnquist, J., dissenting). 182 The First Amendment protects church autonomy. See Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1373 (1981); see also Kathleen Brady, Religious Group Autonomy: Further Reflections About What is at Stake, 22 J.L. & Religion 153, 168, 178 (2007) (arguing that “a broad right of autonomy is necessary to protect the ability of religious groups to develop and communicate new visions for social life,” and that “religious group autonomy is essential to support robust freedom of belief”). 183 See Garry, Wrestling With God, supra note 178, at 44–54. 184 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188–89 (2012) (stating that giving government “the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions”). In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court recognized an institutional liberty aspect of the Establishment Clause. Id. at 172–73. Although the ministerial exception at issue in Hosanna-Tabor has traditionally been justified under the Free Exercise Clause, the lawyers representing Hosanna-Tabor understood that the Establishment Clause provided a way in which the Court could rule in favor of the church without contradicting the holding of Employment Division v. Smith, 494 U.S. 872 (1990), which the Court decided as a Free Exercise case, but this would go against the traditional ways in which the Establishment Clause had been applied— 696 Garry secular society from a government-religion interaction, but rather referenced the Clause as a protection for the institutional autonomy of religious institutions.

C. Prohibition of Government Interference in Religious Institutions As historian Thomas Curry argues, the classical concept of an exclusive state-supported and mandated church constituted the American understanding of an establishment of religion throughout the colonial and constitutional periods.185 A state preference of one denomination over others was what was primarily thought to be an establishment of religion, as the framers did not want to duplicate the English experience with the established Anglican church.186 In the American view, the most repressive aspect of establishment was government intrusion into religious doctrines and liturgies.187 Although modern jurisprudence focuses on “‘advancement of religion’ as [a] key element of establishment,” in 18th-century America the lesson taken from the Anglican experience in England involved “control.”188 In 18th-century England, it was the state that controlled the church, not the church that controlled the state.189

namely, as a means of striking down public religious expressions or certain government aid to religion. Id. at 188–90. The Establishment Clause has often been used as a kind of negative check on religion, rather than as a positive protection of institutional liberty; it has never been used to strike down a law merely because it intruded too deeply into the autonomy of religious organizations. 185 Curry, supra note 166, at 146, 192. 186 Walz v. Tax Comm’n of N.Y.C., 397 U.S. 664, 668 (1970) (stating that “for the men who wrote the Religion Clauses of the First Amendment the ‘establishment’ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity”). Separation of church and state was a concept focused on ensuring the institutional independence and integrity of religious groups, preventing government from dictating articles of faith or interfering in the internal operations of religious bodies. See Elisha Williams, The Essential Rights and Liberties of Protestants 46 (1744) (emphasis omitted) (stating that “every church has the right to judge in what manner God is to be worshiped by them, and what form of discipline ought to be observed by them, and the right also of electing their own officers” free of interference from government officials). 187 Witte, supra note 94, at 51. 188 McConnell, supra note 165, at 2131. 189 Government officials dictated the appointment of ministers, and civil law controlled religious doctrine and articles of faith; and the doctrines and liturgy for public worship were governed by Parliament, which enacted legislation restricting public worship by Catholics, Puritans and Quakers. Ursula Vol. 12, No. 2 Northeastern University Law Review 697

Thus, the effects of the establishment of the Anglican Church in En- gland were twofold: to prohibit public religious worship outside of the Anglican Church; and to maintain government control over the ecclesiastical doctrines of the Anglican Church.190 In connection with this view of establishment as a long-standing associational involvement between the state and a religion, any particular state-religious interaction should not be viewed in isolation, as if that one single interaction, particularly if temporary, would rise to a permanent institutional establishment of religion. For instance, a single religious symbol on public property should not be viewed as itself single-handedly defining the state’s overall policy and intent with regard to that religion.191 This is one of the faults of the endorsement test. It allows an objecting observer to successfully convince a court that a religious symbol on public property alone is sufficient for a conclusion that the government has established a particular religion. The objector can succeed even if there are no other indications whatsoever in that observer’s interactions with government that the government has in fact established the particular religion, and even though there may exist a myriad of other factors that contradict any establishment of religion. The Establish- ment Clause requires courts to focus on what government is doing to become a religious actor or influencing other religious actors.192 It does not focus on what perceptions individuals might have. As Douglas Laycock argues, an establishment is not something fleeting or minute, but amounts to a substantial undertaking

Henriques, Religious Toleration in England, 1787-1833 6 (1961). 190 McConnell, supra note 165, at 2132–33. From the time of Elizabeth I, people not attending Anglican services were subject to monetary fines, the amount of which depended on the length of absence. 4 William Blackstone, Commentaries, *151–52. Marriages could be lawfully performed only by ministers of the Church of England, and the law expressly declared illegitimate the offspring of marriages performed outside the Anglican Church. Sanford H. Cobb, The Rise of Religious Liberty in America: A History 92 (1902). 191 An establishment of religion cannot be determined simply by looking at one instance of government-religion interaction in isolation. Because one Hindu group is providing social welfare services at one prison in a state, unless the state has improperly preferred that group to any other group, should not by itself be sufficient to show an establishment. However, there still might be Exercise Clause issues. 192 See Patrick M. Garry, Coordinating the Exercise and Establishment Clauses, 6 Ave Maria L. Rev. 387, 395 (2008). 698 Garry by government—e.g., forming a national monopoly on religion.193 “Mere whiffs of religion” do not create an establishment of the kind that existed in England in the 17th and 18th centuries.194 Conse- quently, “[t]he idea that a religious display constitutes an establishment of religion because some peoples’ consciences are offended by it is frankly laughable.”195 The text of the Establishment Clause clearly permits “placing religious symbols anywhere on government buildings or in parks.”196

VI. Nonpreferentialism as the Test The Establishment Clause, when functioning properly, guards against the government playing favorites among religious denominations and granting preferential treatment to one sect over another, even if that preferential treatment does not, on its face, appear to immediately affect free exercise rights. This view comports with Jus- tice Rehnquist’s argument in Wallace v. Jaffree for a more simple and narrow establishment test that would look to whether the government was preferring one particular sect over others.197 Nonpreferen- tialism captures the essential traits and aims of the Establishment Clause; it allows government accommodation and interaction with religion as long as that interaction does not discriminate between religions.198 Under a nonpreferential approach to the Establishment Clause, government can accommodate religion’s role and presence in society so long as it does so without discriminating between religions. The nonpreferentialist tradition was firmly embraced by

193 Douglas Laycock, The Benefits of the Establishment Clause, 42 DePaul L. Rev. 373, 376–78 (1992) (providing examples of an establishment in violation of the Establishment Clause). 194 Calabresi & Salander, supra note 179, at 1031. 195 Id. 196 Id. at 1028. 197 Wallace v. Jaffree, 472 U.S. 38, 105–06 (1985) (Rehnquist, J., dissenting).Or, as Justice Blackmun’s concurrence in Lee v. Weisman stated: “Government may neither promote nor affiliate itself with any religious doctrine or organization, nor may it obtrude itself in the internal affairs of any religious institution.” Lee v. Weisman, 505 U.S. 577, 599 (Blackmun, J., concurring). 198 For a discussion of the nonpreferential tradition and approach during the constitutional period, and the belief that religion was indispensable to democracy and that government should then accommodate religion in a nonpreferential manner, see Garry, supra note 62, at 482–96. See also Patrick M. Garry, An Equal Protection View of the First Amendment, 28 Quinnipiac L. Rev. 787, 813–18 (2010). Vol. 12, No. 2 Northeastern University Law Review 699 the constitutional generation.199 During the constitutional period, there was overwhelming agreement that government could provide special assistance to religion, as long as such assistance was given without any preference among sects.200 The Establishment Clause prohibited only “discrimination in favor of or against any one religious denomination or sect.”201 James Madison repeatedly stressed that government could accommodate or facilitate religious exercise, so long as it did so in a nonpreferential manner.202 Thus, the strict separationist view was almost nonexistent during the constitutional

199 James McClellan, Joseph Story and the American Constitution 134 (1971). This tradition reflected “the belief that the religion clauses were designed to foster a spirit of accommodation and cooperation between religion and the state insofar as no single church is officially established and governmental encouragement does not deny any citizen freedom of religion expression.” Dreisbach, supra note 164, at 54. 200 Patrick W. Carey, American Catholics and the First Amendment: 1776-1840, 113 Pa. Mag. Hist. & Biography 323, 338 (1989). Even in Virginia, with the established Anglican Church, the growing sentiment in the late 18th century was that, while government could indeed give aid to religion, there should be equal treatment in such aid. See Rodney Smith, Public Prayer and the Constitution 45 (1987). Catholics in Maryland, for instance, opposed any state established religion, yet supported state aid to religion if conferred without discrimination. Mary Virginia Geiger, Daniel Carroll: A Framer of the Constitution 83–84 (1943). This nonpreferentialist tradition approves of government aid to religion generally, so long as that aid is not discriminatory among particular sects. Leonard W. Levy, The Establishment Clause: Religion and the First Amendment 91 (1986). The very text of the First Amendment supports the nonpreferential view. The use of the indefinite rather than definite article “the” before “establishment of religion” indicates the drafters were “concerned” with government “favoritism toward one sect,” rather than with “favoritism” of religion over nonreligion. Michael S. Ariens & Robert A. Destro, Religious Liberty In a Pluralistic Society 89 (1996). This notion is further supported in the debates over the Establishment Clause. On August 15, 1789, Madison stated that he “apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law.” 1 Annals of Cong., 758 (Joseph Gales ed., 1790) (emphasis added). 201 Thomas M. Cooley, A Treatise on the Constitutional Limitations 583 (5th Ed. 1883). The Reverend Jaspar Adams, cousin of John Quincy Adams, “wrote in 1833 that the term ‘establishment of religion’ . . . meant ‘the preference and establishment given by law to one sect of Christians over every other.’” Dreisbach, supra note 164, at 70. (citation omitted). The clause was not a prohibition on favoritism toward religion in general. Id. 202 Smith, supra note 200, at 56. 700 Garry period.203 Accordingly, the doctrine of nonpreferentialism does not effect a broad and rigid policing of the interaction between religion and the public square. It does not require the courts to constantly scrutinize all such interactions. As long as the government is not becoming a religious actor itself and favoring one sect over another, society is free to interact as it pleases. Under the nonpreferential model, the Establishment Clause is, as it should be, of narrow and limited application. If it was applied in American Legion, the nonpreferential test would have examined whether the government was maintaining the Cross on public land so as to give any religious sect or denomination preference over other sects or denominations. Of course, there was no evidence that the government obtained and maintained the property so as to give preference to a particular religion or to disad- vantage other unfavored religions.204 Thus, with the nonpreferential test, which allows the nondiscriminatory presence of religion in the public square, all the litigation which preceded the Supreme Court pronouncement in American Legion could have been avoided, since that test does not automatically prohibit government-religion interaction unless there is evidence of discrimination or favoritism, which there was not.

VII. Government Banned from Dictating Religious Truth As previously mentioned, the Establishment Clause prohibits the government from becoming a religious actor by creating or aligning itself with a religious sect or institution. And the government becomes a religious actor when it acts in a way that attempts to promulgate religious truth.205 The Establishment Clause, in the view of this author, should forbid the government from forcing citizens to choose between their duties to the state and to God, which might occur when the government becomes involved in declaring religious truth, instead of protecting the freedom of individuals to discover and practice their

203 Id. 204 See generally Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019). 205 See Andrew Koppelman, And I Don’t Care What It Is: Religious Neutrality in American Law, 39 Pepp. L. Rev. 1115, 1120–21, 1134 (2013) (discussing the reasons for government’s “incompeten[ce]” to declare religious truth but also why government can accommodate religion as long as it does not attempt to “declare” religious truth). Vol. 12, No. 2 Northeastern University Law Review 701 notions of religious truth. Government can accommodate religious practice, as long as it does not pick sides in the debate regarding religious truth or take actions amounting to a declaration of religious truth. But in the case of American Legion, the government’s assumption of the maintenance of a war monument for reasons of public safety does not in any reasonable interpretation amount to a statement of religious truth. There is no declaration of doctrinal beliefs by the government in the monument’s maintenance that would constitute the basis for the kind of principles and practices that would arguably constitute a workable religion.206 In American Legion, the government was not acting in any way as a religious actor, but was simply mowing the grass and making cement repairs on property acquired because of traffic control issues.207 Although a Latin cross is a religious symbol, reflecting the core beliefs of Christianity, it can also be a symbol often used to denote solemnity, as in remembrances of the dead who gave their lives in a sacrifice for freedom.208 As such, the cross can be a default symbol used to reflect long-lasting gratitude and remembrance. The intentions of those who constructed the monument, the intentions of those who maintained it over the years, and the exact understandings of all those who witnessed the monument will never be known. But under the endorsement test, the question must be asked as to what the government may have done in American Legion to establish a state-sponsored religion. Was it acquiring the land on which the monument sat, so as to maintain a busy intersection of roadways? Was it failing, once it acquired the land, to tear down a privately-built monument honoring soldiers killed in World War I? Was it continuing to mow the grass surrounding the monument and patch the cracks in the cement? The point is that the government in American Legion did nothing to create an establishment within the 18th-century understanding of that term. There was no religious action by the government; no attempt to spread any religion; no coercive acts aimed at those who disagreed with what the Cross symbolized. The government did

206 Id. 207 See Am. Legion, 139 S. Ct. at 2078 (“[T]he Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land on which it sits in order to preserve the monument and address traffic-safety concerns.”). 208 The Court in American Legion discussed in detail all the various secular meanings and purposes that the cross symbol has taken on over time. See id. at 2082–83. 702 Garry not control doctrine or personnel of a church; it did not mandate religious participation; it gave no financial support to a sect; it did not ban worship in non-established religions; it did not govern the use of religious institutions for public functions; nor did it restrict political participation to members of the established religion.209 Other than cutting the grass and patching cement cracks, the government did nothing to proclaim any kind of religious truth.

VIII. The Establishment Clause and Limited Government As broadly applied, the Establishment Clause often restricts the public presence of religion. However, such an application may weaken religion’s role as a social mediating institution serving to check the power of government.210 To the constitutional framers, “[l]imited government and a vigorous private religious sphere went hand in hand.”211 Therefore, the Establishment Clause should not be used to weaken religion or dampen its public influence. Government regulatory control over religion was detrimental not only to religion but to the general cause of liberty as well.212 Under the constitutional scheme, government would be checked and controlled by private institutions of opinion formation, the most prominent of which was religion.213 The prohibition on establishments reflected the desire that government “not control the instruments for the formation of character and opinion.”214 Thus, the constitutional “separation of church and state is not a limitation on churches or religion; it is a limitation on the role of government with respect to these private social institutions and religious life in general.”215

209 See McConnell, supra note 165, at 2131 (citing these six government actions that fell within the 18th century meaning of establishment). 210 See generally Garry, supra note 71, at 600; Patrick M. Garry, Liberty Through Limits: The Bill of Rights as Limited Government Provisions, 62 SMU L. Rev. 1745, 1754–57, 1760–61, 1774 (2009). 211 Michael McConnell, Religion and Its Relation to Limited Government, 33 Harv. J.L. & Pub. Pol’y 943, 952 (2010). 212 Id. 213 Id. at 948. 214 Id. at 947. To the framers, public opinion should control government, not vice versa, and religion was a primary conveyor of public opinion. Id. at 944. 215 Id. See generally Patrick Garry, Limited Government and the Bill of Rights (2012). See also Carl Esbeck, When Accommodations for Religion Violate the Establishment Clause, 110 W. Va. L. Rev. 359, 361 (2007) (describing the Establishment clause as a power-limiting clause). According to Professor Esbeck, “the Establishment Clause is a structural clause that is about limiting Vol. 12, No. 2 Northeastern University Law Review 703

During the constitutional period, religion was perhaps the most prominent mediating institution capable of controlling government.216 The autonomy and influence of such non-governmental mediating institutions was vital within the constitutional scheme for limiting the newly empowered federal government.217 Consequently, the Establishment Clause prevented the federal government from creating a religious monopoly or gaining control over the religious sphere of society.218 Religious institutions and organizations are an important component of democratic government and society. As John Witte notes, religious institutions constitute vital “structures” that “stand between the State and the individual,” not only to help “create the conditions for the realization . . . of . . . civil and political rights,” but also to provide many important social goods such as “education, health care, [and] child care.”219 Furthermore, such institutions generally make possible the exercise of religion, a liberty protected by the Free Exercise Clause. As Richard Garnett argues, there is reason “to worry that the individual conscience, standing alone, is not up to the task of creating and sustaining the conditions necessary to insure religious freedom.”220 According to Garnett, individual freedom, like free exercise, depends on the existence of religious institutions that nourish and facilitate that exercise.221 The Establishment Clause is arguably the most important power-limiting provision in the Constitution because it limits the government from intruding into the province of the divine. The religion clauses recognize and delineate the jurisdictional boundaries

in all cases the government’s net power to legislate on matters more properly within the purview of organized religion.” Id. at 365. 216 See generally Garry, supra note 215, at 105–07 (discussing the prominence of religion as a mediating institution). 217 See id. 218 Michael McConnell, Government, Families, and Power: A Defense of Educational Choice, 31 Conn. L. Rev. 847, 848 (1999). 219 See Religion and Human Rights: An Introduction 16 (John Witte, Jr. & M. Christian Green eds., 2012). 220 See Richard Garnett, Do Churches Matter?, 53 Vill. L. Rev. 273, 295 (2008). A related argument is that there can be no real individual religious liberty or free exercise without a strong institutional foundation or tradition to support and facilitate that free exercise. Such a foundation or tradition not only serves to constrain government power on behalf of individual believers, but also to provide a pathway through which individuals can pursue their vision and beliefs. 221 See id. 704 Garry between the temporal and divine sovereignties. For the religious be- liever, the spiritual duties to the creator cannot be superseded by the state. Hence, the First Amendment limits the state from attempting to supersede those duties. However, because the government has grown so exponentially since the New Deal, its activities continu- ally intersect the traditional domain of religion.222 For this reason, it becomes all the more important that government accommodate the presence of religion in an increasingly government-dominated world. Given the pervasiveness of government in modern society, sometimes accommodation is needed so as to keep religion free and vibrant. The historic involvement of religions in social welfare work, for instance, indicates that the overwhelming resources of the government should not be allowed to drown out religious organizations from this role.223 Such a result could easily happen, however, if the government funds only nonreligious viewpoints on or approaches to social problems. When “the First Amendment was ratified, the government had little or no involvement in education . . . or social welfare.”224 “These functions were predominantly left to the private sphere . . . where religious institutions played a leading role.”225 But “with the rise of the welfare-regulatory state, the spheres of religion and government” began to overlap.226 The state had now “extended its regulatory jurisdiction over broad aspects of life that formerly had been private and frequently religious, creating conflicts with both religious institutions and the religiously motivated activity of individuals.”227 This takeover of religion’s traditional functions, without a corresponding approach of accommodation, constricts the freedom and ability of religious groups to perform the social duties that their religious beliefs command them to perform.228

222 See generally Patrick M. Garry, The False Promise of Big Government 89–93 (2017). 223 See Garry, Religious Freedom Deserves More than Neutrality: The Constitutional Argument for Nonpreferential Favoritism of Religion, supra note 4, at 18–19. 224 See id. 225 See id. 226 McConnell, supra note 165, at 1261. 227 Id. 228 See id. at 1261. Gedicks claims that “[i]n the modern welfare state that the contemporary United States has become, government aid to both individuals and organizations is widespread and pervasive. Since in the United States most persons and entities are entitled to some kind of government aid, Vol. 12, No. 2 Northeastern University Law Review 705

IX. Conclusion As the Court in American Legion may have implicitly recognized, many reasons explain why a broad test for constitutionality under the Establishment Clause could be problematic. Indeed, the Lemon test demonstrates those problems. For decades after its adoption, the Lemon test perpetuated an unjustified hostility toward religion and its presence in the public square; and it has taken nearly a half century to turn Establishment Clause jurisprudence back toward its historical meaning and intent. The fundamental problem with Lemon was that it contradicted the very aim and purpose of the First Amendment; it is thus unsurprising that any test built upon Lemon’s presumptions would be problematic. Many hoped that American Legion would begin to address these larger, more fundamental questions underlying the Establish- ment Clause, such as: what does the Establishment Clause strive to do? Who or what is meant to be served by the Clause? Is the Clause intended to act primarily as a guarantor of secular society or as a protection of religious liberty? But those questions will have to wait. The Court’s narrow decision in American Legion answered nothing beyond the specific facts of that case. And the problem with the historical traditions test used in American Legion is that it is not dynam- ic. It cannot begin to address any of the relationships or interactions between government and religion that currently take place or have recently taken place. All that American Legion settled was the matter of very long-standing religious symbols that have taken on a sufficient secular image. Every other issue involving the Establishment Clause will have to be dealt with on a case-by-case basis. Perhaps Lemon and/or the endorsement test might still prevail for other fact settings. Perhaps a later Court will slip back into a separationist mentality. However, for now, the Court has at least drawn a barrier to Lemon and the negative effects of the endorsement test. Perhaps, for now, that small step is all that can be taken.

religious neutrality would generally seem to require that this aid not be denied to otherwise qualified recipients simply because they are religious.” Frederick M. Gedicks, The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence 57 (1995). Thus, contrary to the separationist claim, the no-aid baseline is implausible in the late twentieth century. 706 Garry Vol. 12, No. 2 Northeastern University Law Review 707

Legislative Transsubstantivity

By Jeffrey C. Dobbins*

* Associate Professor of Law, Willamette University College of Law. Thanks to the Willamette University College of Law for research support, to David Marcus, Aaron Simowitz, and the entire Willamette University College of Law faculty for their thoughtful comments and reactions. Errors of fact, logic, and omission remain my own. As this piece goes to print in the early Spring of 2020, the country and world face extreme disruption from the COVID-19 pandemic. My sincere appreciation and deepest respect go to all who are working to ease the physical, mental, and economic pain it is visiting on so many. 708 Dobbins

Table of Contents Introduction �� 709 I. Transsubstantivity in Procedure �� 713 A. Basic Principles �� 713 B. Justifications for Transsubstantivity in Judicial Rulemaking �� 716 C. Challenges—and Some Tentative Responses—to Reliance on a Transsubstantivity Principle in Judicial Decision Making ��723 II. Are Legislatures Bound by Transsubstantivity? The Literature Suggests “No” �� 730 III. Legislative Transsubstantivity as a Foundational Premise in Our Legal System ��733 A. Presumptions Favoring General Rules and Transsubstantivity ��734 B. Implicit and Explicit Acknowledgement of Transsubstantivity as a General Principle in Procedural Decision Making ��738 IV. Legislative Transsubstantivity as a Systemic Virtue �� 741 A. Justifications for a Legislative Transsubstantivity Principle �� 741 B. The Application of Legislative Transsubstantivity to Legislative Action ��748 C. Legislative Transsubstantivity and Due Process �� 750 D. Limits on Legislative Transsubstantivity �� 754 Conclusion ��756 Vol. 12, No. 2 Northeastern University Law Review 709

Introduction At the heart of judicial procedure in the United States—and at the core of our law school courses in civil and criminal procedure—is a principle of transsubstantivity, which presumes that rules governing court procedures should apply to all kinds of cases, regardless of their substance.1 In the civil system, this principle is embodied in the Federal Rules of Civil Procedure (Federal Rules) and the many state procedural codes that substantially track the Federal Rules.2 Whether a case asserts a cause of action arising out of a tort, contract, or property dispute, the process required to resolve that case is the same across those substantive areas. Over the years since the adoption of the Federal Rules, however, an increasing number of commentators have questioned whether the principle should constrain rulemakers in the drafting and modification of our rules of procedure. Some have argued that transsubstantivity artificially limits the creativity, nuance, and efficiency that could come from procedure more targeted to the needs of particular substantive areas.3 Legislatures, at least, have taken these criticisms to heart, and have adopted over the years a number of substance-specific procedures applicable only in certain limited areas of the law (such as landlord-tenant law, family law, and med-

1 Margaret B. Kwoka, Judicial Rejection of Transsubstantivity: The FOIA Example, 15 Nev. L.J. 1493, 1496 (2015); David Marcus, Trans-Substantivity and the Processes of American Law, 2013 BYU L. Rev. 1191, 1194 (2013) [hereinafter Processes of American Law] (“Trans-substantivity is one of the most fundamental principles of doctrinal design for modern civil procedure . . . .”); see also Jack B. Weinstein, After Fifty Years of the Federal Rules of Civil Procedure: Are the Barriers to Justice Being Raised?, 137 U. Pa. L. Rev. 1901, 1911–12 (1989) (noting that legal education in civil procedure is directed to federal rules, thereby aiding the development of uniformity in the procedural system at the national level). 2 See infra Part I.A. 3 See, e.g., Stephen N. Subrin, The Limitations of Transsubstantive Procedure: An Essay on Adjusting the “One Size Fits All” Assumption, 87 Denv. U. L. Rev. 377–78 (2010) [hereinafter Limitations] (arguing for “readjustment” to principle of transsubstantive procedure in order to address concerns about flexibility and efficiency); Stephen P. Burbank, Of Rules and Discretion: The Supreme Court, Federal Rules and Common Law, 63 Notre Dame L. Rev. 693, 715–19 (1988) [hereinafter Of Rules and Discretion] (arguing for value of some substance-specific procedures in order to avoid impact of “falsely advertised” simplicity and predictability in current system, and to serve principles of equality); see also infra Part I.C, especially text accompanying notes 65–76 (articulating these criticisms in greater detail). 710 Dobbins ical malpractice cases4). That said, there are a number of commentators who continue to defend the principle of transsubstantivity as applied to the rulemaking process.5 In the midst of the debate about the value of transsubstantivity, however, there is very little disagreement that it is courts and court-adjacent rulemakers—not legislatures—that should be constrained by its principles. With few exceptions, commentators assume that legislatures are inherently free of transsubstantive limits, and are entitled to adopt procedures targeted to particular substantive areas.6 As a constitutional matter, these commentators are certainly correct. And yet, as this Article explores, our judicial system is often skeptical of substance-specific procedures adopted through the legislative process. In civil, administrative, and criminal systems, for instance, courts rely on presumptions that favor “standard” procedures, and use policy-based canons of interpretation that push courts in the direction of standard judicial processes. This previously unacknowledged presumption of legislative transsubstantivity is the focus of this Article. Ultimately, this Article suggests that in the legislative context, the presumption of transsubstantivity should not only be acknowledged, but encouraged. This is not to say that statutes should not be able to devi- ate from general procedural rules—they certainly should, and courts should willingly interpret legislation clearly imposing such substance-specific procedures in a manner consistent with legislative intent.7 Rather, this Article points out that our system is properly laced with presumptions favoring transsubstantive procedures. The implicit skepticism with which courts evaluate legislatively-adopted

4 See David Marcus, The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure, 59 DePaul L. Rev. 371, 407–09 (2010) [hereinafter, Trans- Substantivity] (discussing substance-specific procedures adopted by many states for medical malpractice cases); see also Kwoka, supra note 1, at 1498–99. 5 See, e.g., Paul D. Carrington, Making Rules to Dispose of Manifestly Unfounded Assertions: An Exorcism of the Bogy of Non-Trans-Substantive Rules of Civil Procedure, 137 U. Pa. L. Rev. 2067, 2068 (1989) [hereinafter An Exorcism] (arguing that substance-specific rules have “been wisely rejected in the past and must be rejected for the present and for the future”); Geoffrey C. Hazard, Jr.,Discovery Vices and Trans-Substantive Virtues in the Federal Rules of Civil Procedure, 137 U. Pa. L. Rev. 2237, 2244, 2247 (1989) (concluding that critique of transsubstantive rules “seems misguided to me”; noting commitment to transsubstantive principles by well-known judges); Richard L. Marcus, Of Babies and Bathwater: The Prospects for Procedural Progress, 59 Brook. L. Rev. 761, 778–79 (1993) (raising concerns about a shift away from transsubstantive procedures). 6 See infra Part II.A. 7 See infra Part IV.C. Vol. 12, No. 2 Northeastern University Law Review 711 substance-specific procedures serves many of the same basic salutary principles that transsubstantivity serves in judicial rulemaking: the principle effectively acknowledges that most legislators (like most judges) are generalists; it improves legitimacy by limiting the risk of substance-specific capture of procedure by unelected interests; and it encourages predictability, familiarity, and ease of application of legal procedures by those who operate within and are subject to them. While legislatures should be able to overcome judicially-imposed transsubstantive skepticism through clearly stated positive law, legislative transsubstantivity should be acknowledged as an important—and useful—constraint on legislative action and judicial decision making. To develop this thesis, I begin in Part I by examining the principle of procedural transsubstantivity as it has been described and discussed in the academic literature. From its early application (and, arguably, its zenith) in the adoption of the Federal Rules of Civil Pro- cedure, through its acknowledgement in the academic literature, to skeptical academic views of the value of the principle, the notion of transsubstantivity has been an important premise behind the evolution of legal procedure over the last century. In Part II, I examine how commentators have thought about transsubstantivity in the context of legislative enactments. Generally speaking, legislatures have been viewed as wholly unbound by transsubstantive principles; Part II discusses why this perception has held sway, and looks at what legal and policy understandings might support this view. In Part III, I discuss how, despite the lack of any articulated support for applying transsubstantivity principles to legislative enactments, courts nevertheless make decisions about legislative enactments based on what appears to be a spillover of transsubstantivity principles into certain decisions about procedure. These decisions take the form both of presumptions (such as the presumption of reviewability), as well as interpretive rules that give effect to those presumptions. As Part III discusses, these decisions are not generally rooted in any kind of explicit reliance on a principle of transsubstantivity, but they can nevertheless be explained by the carryover of transsubstantivity principles into decision making about an area of the law—legislative procedural enactments—tooward which the principle has generally been viewed as irrelevant. Finally, in Part IV, I discuss this phenomenon, and argue that the application of transsubstantivity principles to legislative decision making should not only be acknowledged, but encouraged. Ac- knowledging the importance of transsubstantivity in the evaluation and application of procedural legislation is not only theoretically and normatively interesting, but it is also likely to improve judicial decision making by exposing an important premise governing those 712 Dobbins decisions. The Article further argues, however, that the application of this kind of transsubstantive presumption in judicial rulemaking, judicial decision making, and legislative action is substantively wise. Many of the same justifications that have motivated the application of transsubstantivity in judicial rulemaking—ease of application for generalist decision makers and practitioners, for instance—also apply in the context of legislation. Of course, legislators do not risk the same lack of legitimacy in adopting substance-specific procedural legislation that courts might face were they to adopt such targeted procedures. Nevertheless, legislative legitimacy can also be undermined when special interests (and their focused knowledge about the importance of certain procedures in achieving substantive goals) influence generalist legislators to adopt legislation in which substance-specific procedures may be unnecessary, superfluous, excessively complex, or contrary to a particular legislator’s substantive legislative goals. This Article does not argue that legislatures should be barred from adopting legislation imposing substance-specific legal procedure (although some courts may view excessive legislative intrusion into procedures as impermissibly encroaching on constitutionally defined “judicial powers”). Legislators can and should be able to accomplish substantive policy goals through directly legislating substance or procedure. If they choose to go the latter route, however, it is appropriate that legislators approach such decisions with care, and that courts view apparently substance-specific legislation with a skeptical eye. In the end, I recognize that this Article’s thesis runs against a trend in the academic literature that is skeptical about the continuing utility of a strong transsubstantivity principle in even judicial rulemaking. Hopefully, however, the Article demonstrates not only that the premise already plays an important part in judicial decisions regarding legislation, but makes a case for avoiding what might be characterized as “casual” substance-specific procedural legislation in both the development of procedure as well as in the interpretation and application of it. While legislators should be free to adopt new substance-specific procedures when doing so is considered and done intentionally, an approach that views legislative enactments through a transsubstantive lens provides a check on such enactments that is not only consistent with current practice, but also is an appropriate way to maintain important values that have been associated with the principle of transsubstantivity since early in the last century.

I. Transsubstantivity in Procedure Vol. 12, No. 2 Northeastern University Law Review 713

A. Basic Principles Transsubstantive legal procedure is procedure that applies to the management of a case regardless of the substance of that case.8 The Federal Rules of Civil Procedure are, with few exceptions, transsubstantive, because they apply to cases regardless of the content of those cases.9 A case alleging breach of contract will be managed in the federal system—and (with a few modifications) in most state systems10—identically to a case alleging negligence in tort.

8 Trans-Substantivity, supra note 4, at 376 (“A procedural rule is trans-substantive if it applies equally to all cases regardless of substance.”). In his later article, Trans-Substantivity and the Processes of American Law, Marcus highlights some important subtle features of arguments about transsubstantivity that mark an important advance in thinking carefully about the principle. See Processes of American Law, supra note 1, at 1197–208 (noting application of principle to a wide field of “process law,” as well as what he calls a “spectrum” of transsubstantivity). For purposes of this Article, however, the straightforward definition in the text will suffice. 9 Trans-Substantivity, supra note 4, at 376 (discussing transsubstantive and some of the limited substance-specific provisions of the Federal Rules). 10 Many states adopted procedural systems similar, if not nearly identical to, the Federal Rules. While some states have resisted the kind of wholesale modeling on the Federal Rules that other states have adopted, the systems are, with few exceptions, transsubstantive. See John B. Oakley & Arthur F. Coon, The Federal Rules in State Courts: A Survey of State Court Systems of Civil Procedure, 61 Wash. L. Rev. 1367, 1369, 1377–78 (1986) (noting the “pervasive influence of the Federal Rules on at least some part of every state’s civil procedure,” but classifying only 23 states as having a true “federal rules replica” system); id. at 1369 (noting that while many systems have adopted variations on the Federal Rules or rejected their substance altogether, the judicially-driven (and, presumably, transsubstantive) rules-based nature of the Federal Rules now predominates in the U.S.); Stephen N. Subrin, Federal Rules, Local Rules, and State Rules: Uniformity, Divergence, and Emerging Procedural Patterns, 137 U. Pa. L. Rev. 1999, 2026–43 (1989) [hereinafter Federal Rules, Local Rules, and State Rules] (chronicling history of state adoption of (and refusal to adopt) Federal Rules model); id. at 2045 (noting that, despite variation in how willing states have been to adopt the Federal Rules, “the Federal Rules have greatly influenced state procedure, and they have certainly dominated scholarly thought and the teaching of civil procedure in law school”). In Oregon, for instance, which Oakley and Coon label a “Fact Pleading / Idiosyncratic Rules- Based Procedural System,” the Oregon Rules of Civil Procedure are largely transsubstantive (though certain venue and jurisdictional rules are substance- specific). See Or. R. Civ. P. 1-85; see also Oakley & Coon, supra, at 1414–15. But see Or. R. Civ. P. 4H-4K (substance-specific provisions in Oregon rule governing personal jurisdiction). State courts, then, have been significant advocates for transsubstantivity principles. As one commentator noted, state judges appear to have been largely responsible for deep-sixing proposed changes that would have removed the 714 Dobbins

While a number of articles have addressed various important aspects of the development of the transsubstantivity principle and associated jurisprudential and practical considerations,11 perhaps the most comprehensive history of the transsubstantivity principle itself is Professor David Marcus’ article, The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure.12 Professor Marcus notes that although the principle has its roots in Jeremy Bentham’s work distinguishing procedural rules (or “adjective law”) from substantive law,13 the notion of transsubstantivity in the American legal system only became important with the development of code pleading in the 19th century.14 The substance-procedure distinction plays a critical role in the transsubstantivity principle (and, as we will see, in the undermining of its theoretical underpinnings in the years subsequent to the adoption of the Federal Rules). Bentham, who offered the “first analytically precise articulation” of the boundary,15 distinguished

courts from a decision-making role in the development of Federal Rules in the mid-1980s; those state judges were “concerned about their own prerogatives” and fought to retain the model on which their own systems had been built. Stephen B. Burbank, Procedure, Politics and Power: The Role of Congress, 79 Notre Dame L. Rev. 1677, 1721–22 (2004) [hereinafter Procedure, Politics and Power]. A fascinating proposal that would take state transsubstantive procedure to new heights can be found in Glenn S. Koppel, Toward A New Federalism in State Civil Justice: Developing A Uniform Code of State Civil Procedure Through A Collaborative Rule-Making Process, 58 Vand. L. Rev. 1167 (2005). 11 See generally Thomas O. Main, Procedural Uniformity and the Exaggerated Role of Rules: A Survey of Intra-State Uniformity in Three States that Have Not Adopted the Federal Rules of Civil Procedure, 46 Vill. L. Rev. 311, 318 n.30 (2001) (providing a comprehensive list of academic works on the role of transsubstantivity in the federal system); Processes of American Law, supra note 1, at 1194–95 & nn.11–14 (2013) (citing articles); see also An Exorcism, supra note 5, at 2067; Hazard, supra note 5, at 2237. 12 Trans-Substantivity, supra note 4. This Article relies heavily on Marcus’ piece for its careful and thorough explanation of the evolution and ongoing utility of the doctrine of transsubstantivity. 13 Id. at 384–85 (“The trans-substantivity principle lurks in Bentham’s distinction between substance and procedure.”). 14 Id. at 383–87, 389 (“Trans-substantivity thus appears as a central feature in what became known by the late 1800s as the “American system” of procedure.”). Professor Subrin suggests that the term “trans-substantive” itself was probably first used by Professor Robert Cover. See Limitations, supra note 3, at 377 n.1 (citing Robert M. Cover, For James Wm. Moore: Some Reflections on a Reading of the Rules, 84 Yale L.J. 718, 718 (1975)). Professor Subrin also notes that usage varies between “trans-substantive” and “transsubstantive.” See id. Like him, I have chosen the latter, non-hyphenated version. 15 Trans-Substantivity, supra note 4, at 384. Vol. 12, No. 2 Northeastern University Law Review 715 substantive law, which defined rights and duties of individuals, from “adjective law” that was intended solely to define how to enforce that substantive law.16 The distinction necessarily presumed that procedural law was value-neutral, and to the degree that “procedure” had the effect of imposing substantive policy changes, it took itself out of the realm of procedure. Laws enacting substance-specific procedure necessarily suggested that they were focused not on the value-neutrality of “adjective law,” but rather on the policy effects of a particular change—a topic best left to legislators, rather than judges.17 With a jurisprudential line in place that permitted reformers to distinguish between “value neutral” procedure and “substantive” law, a variety of 19th century efforts to codify and unify legal practice, most notably in the Field Code, amounted to the first round of efforts to move in the direction of a uniform and transsubstantive procedural system, and away from the complex processes that dominated the common law writ system and its adjacent procedures.18 Although continued adherence to common law forms of pleading lingered throughout the country,19 the push for a federal system of procedure—along with the power to generate that system through a court-adjacent rulemaking process—ultimately resulted in the “final triumph” of transsubstantivity: the adoption of the Federal Rules of Civil Procedure in 1938.20 The rise of the Federal Rules was reinforced by principles of transsubstantivity. When discussing the value of procedural reform,

16 Id. 17 Id. at 384–86; see also D. Michael Risinger, “Substance” and “Procedure” Revisited with Some Afterthoughts on the Constitutional Problems of “Irrebuttable Presumptions”, 30 UCLA L. Rev. 189, 191–92 (1982) (describing Bentham’s distinction between substance and procedure). 18 See generally Trans-Substantivity, supra note 4, at 381–83, 386–92; see also Stephen R. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 931–75 (1987) [hereinafter How Equity Conquered Common Law] (chronicling the evolution of the American system from common law pleading to the equity-dominated system embedded in the Federal Rules). As Subrin notes, however, the Field Code rejected judicial discretion, and “leaned as much, or more, toward the view of common law procedure, as to equity.” How Equity Conquered Common Law, supra, at 939. Notably, that emphasis reflected a belief on the part of Field and like-minded reformers that legislatures, rather than judges, should be primarily responsible for the development of legal procedures. See Trans- Substantivity, supra note 4, at 390, 395; see also Roscoe Pound, Procedure Under Rules of Court in New Jersey, 66 Harv. L. Rev. 28, 31–32 (1952) (discussing move away from Field Code’s legislative control over procedure and the resulting complexity). 19 Trans-Substantivity, supra note 4, at 392–94. 20 Id. at 392, 394–99. 716 Dobbins advocates presumed that a single federal system would naturally be simple, systemic, and free of reference to substantive areas of the law.21 Existing federal practice under the Conformity Act of 1872 had proven difficult for practitioners, and reform advocates argued for simplicity in legal process not only because of the intrinsic value of a simplified system, but because it would also reduce the degree to which procedural tactics, rather than substantive merit, would dictate the outcome of cases.22 This emphasis on the value-neutral characteristic of transsubstantive procedural reform helped to drive the enactment of the Rules Enabling Act and adoption of the Fed- eral Rules. By reinforcing the “technocratic” and “expert” nature of the court-adjacent process that was proposed for development of the Federal Rules, reformers (led by Charles Clark) argued for keeping procedural reform out of the hands of legislative control that had “led to ‘indifference and political manipulation,’ and … hob- bled the ability of procedural reform to keep pace with constantly evolving litigation needs.”23 The doctrines of procedural value-neutrality, transsubstantivity, and the appropriate role of court-adjacent rulemakers in generating procedural reform reinforced each other in the 1930s, and ultimately persuaded Congress to adopt the Rules Enabling Act in 1934.24 The Federal Rules of Civil Procedure—the model for transsubstantive American civil legal process—followed just four years later.25

B. Justifications for Transsubstantivity in Judicial Rulemaking The history of transsubstantive procedure therefore encompasses several arguments that its defenders have relied upon to justify its continued place in legal procedure in the United States. First, transsubstantivity helps to ensure that courts and court-adjacent rulemaking operate within their (value-neutral, procedural) core area of expertise and authority, and stay away from value-laden substantive law. Second, transsubstantivity is consistent with the notion of uniform procedure and treating “like cases alike”—a fundamental principle of procedural justice. Third, because the notion of uniformity is inherently part of transsubstantive procedures, a range of universal values associated with uniformity have been used to defend transsubstantivity as well. With uniformity and simplicity

21 See How Equity Conquered Common Law, supra note 18, at 957–59. 22 See, e.g., id. at 959–60. 23 Trans-Substantivity, supra note 4, at 395–96. 24 Id. at 396; see Act of June 19, 1934, Pub. L. No. 73-415, 48 Stat. 1064 (current version at 28 U.S.C. § 2072 (2018)). 25 See Supreme Court Adopts Rules for Civil Procedure in Federal District Courts, 24 A.B.A. J. 97, 99 (1938). Vol. 12, No. 2 Northeastern University Law Review 717 come practical considerations that are used to reinforce the value that transsubstantivity brings to the procedural system. Institutional Arguments. The institutional argument supporting the value of transsubstantivity in our procedural system turns primarily on the notion that transsubstantive rules, unlike substance-specific procedural rules, are “value-neutral.”26 To the degree that courts, rather than legislatures, are responsible for developing procedural systems, then, the rules themselves must necessarily be transsubstantive given that courts do not have the institutional authority necessary to justify developing their own value-laden principles. “[F]or the history of American civil procedure, procedural rulemaking for early twentieth-century reformers could legitimately proceed outside the political process because the promulgation of trans-substantive rules involved no choice of substantive policy.”27 This argument for transsubstantivity depends significantly, of course, on the structure of the rulemaking process. While the history of procedural reform in the United States means that transsubstantive rules are viewed as a natural product of the court-adjacent rulemaking system, it does not necessarily mean that transsubstantive rules can only be generated from processes that are centered in the judicial branch.28 In other words, the important role of transsubstantivity flows from the understanding that rulemaking is best left in the hands of the courts. That institutional understanding necessarily requires that any rules that are developed should be transsubstantive. If the premise is undermined—i.e., to the degree that legislative control over rulemaking is (re)asserted29—this institutional argument falls away as a justification for the adoption of transsubstantive rules. If we are interested, as this Article is, in justifications for applying transsubstantivity to legislative rulemaking, we need to look to intrinsic arguments for the value of transsubstantive rules. Transsubstantivity as Procedure. In the absence of judicial

26 See Trans-Substantivity, supra note 4, at 397–99 (discussing importance of principles of value-neutrality in the adoption of transsubstantive rules). 27 Id. at 381. 28 Marcus’s article on transsubstantivity persuasively concludes that even if transsubstantivity is not a systemic good in itself—i.e., even if there are substance-specific rules that might do better to improve procedural justice than transsubstantive rules—transsubstantivity nevertheless amounts to a “principle of institutional allocation of rulemaking power” that defines and limits the scope of court-supervised rulemakers and thereby “strengthen[s] their legitimacy to craft procedural rules.” Id. at 375. 29 Some commentators have challenged the assertion of legislative control over judicial procedures. See, e.g., Linda S. Mullenix, The Counter-Reformation in Procedural Justice, 77 Minn. L. Rev. 375, 379 (1992). 718 Dobbins rulemaking, institutional arguments about the need for transsubstantive rules do not necessarily hold sway. But even if legislatures were generating procedural rules, transsubstantivity could be viewed as a manifestation of the evenhandedness and impartiality that are fundamental characteristics of “ideal” legal procedure.30 Impartial and evenhanded procedure has as a fundamental characteristic the premise that “like cases are treated alike.”31 While cases in different areas of substantive law are arguably “unalike,” they are only substantively unalike, and therefore can be reasonably subject to different substantive rules. To the degree that parties asserting different substantive legal rights are seeking to vindicate legal interests, however, it is harder to make the case for why a lawsuit in a medical malpractice case should be managed in a procedurally different way from a lawsuit alleging breach of contract, or how a case alleging violations of a particular state consumer protection law should be handled any differently from a property line dispute between neighbors. To the degree that transsubstantive procedure manages to treat all cases alike, it accomplishes at least some of the goals of evenhandedness and impartiality.32 To be sure, transsubstantive rules may generate different outcomes when courts apply transsubstantive discretionary powers to different facts. Reliance on discretion as a transsubstantive principle can therefore challenge the fundamental values of transsubstantivity.33 In the end, however, transsubstantive

30 See Stephen N. Subrin & Thomas O. Main, The Fourth Era of American Civil Procedure, 162 U. Pa. L. Rev. 1839, 1880 (2014) (setting forth the authors’ vision of the inherent value of procedure). 31 Cf. Federal Rules, Local Rules, and State Rules, supra note 10, at 2001 (noting “final uniformity question: how can procedure most effectively aid the predictable application of substantive law and thus help to achieve uniformity of result in similar cases?”); An Exorcism, supra note 5, at 2074–75 (discussing the importance of procedural neutrality to the validity of legal system). 32 See Stephen N. Subrin, Reflections on the Twin Dreams of Simplified Procedure and Useful Empiricism, 35 W. St. U. L. Rev. 173, 188 (2007) [hereinafter Simplified Procedure] (“We have rules, substantive and procedural, in the attempt to reduce arbitrariness.”). Whether our transsubstantive system achieves the goal of reducing arbitrariness is a matter of dispute. See infra Part I.C. 33 See infra Part I.C (discussing lack of uniformity as a result of the application of transsubstantive principles of discretion); Trans-Substantivity, supra note 4, at 377; see also Robert S. Summers, Evaluating and Improving Legal Processes A Plea for Process Values, 60 Cornell L. Rev. 1, 25 (1974) (noting risk to “procedural legality” of leaving too much discretion to decision makers). In his criticisms of the transsubstantivity principle, Professor Stephen Burbank has noted this natural drift toward the use of discretion in a transsubstantive system. Of Rules and Discretion, supra note 3, at 715 (“It is not surprising that, with some notable exceptions, the trend of modern procedural law has been away from rules that make policy choices towards those that confer on trial Vol. 12, No. 2 Northeastern University Law Review 719 procedures, rather than substance-specific ones, do a better job of advancing the goals of a legal justice system that seeks to treat like cases alike.34 Transsubstantive procedures also provide, at least on their face, for procedural rationality. By treating all cases similarly (at least in form), transsubstantive procedures give “[t]hose who participate in, or are affected by” the legal process “a better chance of knowing ‘what is going on’—of knowing what is happening to them and why.”35 While it is certainly possible that a given transsubstantive procedure might not be the “best” such process (because it might be inefficient, or even lead to incorrect results), at the very least, the consistency of procedure between substantive areas of the law helps to advance systemic goals by enhancing the perception of fairness, consistency, and legitimacy.36 This kind of consistent treatment of similar cases helps to promote public confidence in the legal system as a whole. The Theoretical and Practical Value of Simplicity and Uniformity. Transsubstantive rules are not necessarily uniform rules, and uniform rules are not necessarily transsubstantive.37 Nevertheless, Clark and other advocates for the development of a transsubstantive federal procedural system rested much of their argument for such a system on the importance of simplicity and predictability. As Professor Subrin puts it, in Clark’s view, “procedural technicality stands in the way of reaching the merits, and of applying substantive law.”38 Given that the entire purpose of procedure had traditionally39

courts a substantial amount of normative discretion. For once one has settled upon trans-substantive rules as the best way of achieving uniformity, simplicity and predictability, and once one acknowledges the impact of procedure on the substantive law, concerns about either the legitimacy of the enterprise or its efficacy push in that direction.”). 34 See Processes of American Law, supra note 1, at 1220–21 (“The refusal to discriminate among different antecedent regimes means that regimes’ beneficiaries get treated as objects of equal concern by the processes of American law.”). 35 Summers, supra note 33, at 26–27. 36 Cf. Simplified Procedure, supra note 32, at 186 (“It seems to me that the closest we can come to measuring ‘justice’ in a given procedural system is the extent to which relevant participants and society perceive the system and its results as fair and legitimate.”). 37 See Trans-Substantivity, supra note 4, at 376–77 (noting how uniformity differs from transsubstantivity). 38 How Equity Conquered Common Law, supra note 18, at 962. 39 “Traditionally” means “since the development of a jurisprudential view about the line between substance and procedure.” See supra notes 13–17 and accompanying text (discussing importance of substance-procedure distinction to development of transsubstantivity principles). 720 Dobbins been viewed as “staying out of the way” of the goals of substantive law, reformers necessarily believed that procedural reform had to be transsubstantive. The alternative—substance-specific procedure— would necessarily embed value judgments in the very procedures that were supposed to be value-neutral.40 Regardless of how rules are generated, then, for them to be appropriately deemed “procedural,” they have to be transsubstantive. Under this view, transsubstantivity is a necessary path by which procedural reformers can avoid the costs of complexity. When a single procedure can be used to evaluate and vindicate legal rights across a broad spectrum of substantive areas of the law, that procedure is not only appropriately “simple,” but it is consistent with the whole idea of procedure qua procedure. A “simple” procedure, in essence, is inherently transsubstantive. Although this vision of transsubstantive simplicity is necessarily tainted by the reliance on judicial discretion that develops to permit efficient application of the rules in such straightforward systems,41 a transsubstantive system is, at least on its face,42 simpler and easier to understand than one that uses different procedures for different substantive areas of the law.43

40 See Trans-Substantivity, supra note 4, at 418 (“[S]ubstance-specific procedures . . . encroach on legislative terrain.”); see also id. at 419 (“The trans-substantivity principle ensures at least a type of value-neutrality because it denies rulemakers the power to pursue directly substantive policy ends through procedural rules.”); An Exorcism, supra note 11, at 2085 (noting how the flexibility of transsubstantive rules limits political interest in those rules and is linked to the “objective of political neutrality in rulemaking”). 41 See Trans-Substantivity, supra note 4, at 377–78; see also Main, supra note 11, at, 379–80 (noting the important difference between a procedural system that is uniform in “form” and one that is uniform in practice). 42 As Professor Janice Toran discussed in her article ’Tis a Gift to be Simple: Aesthetics and Procedural Reform, 89 Mich. L. Rev. 352, 377 (1990), simplicity has an aesthetic value that influences procedural reform. “[T]o the extent that the Code and Federal Rules reformers appreciated certain stylistic qualities in procedure, their attitudes were aesthetic. This does not mean that their perceptions were limited to, or by, aesthetic sensibilities; it does suggest that aesthetic considerations exerted an influence on reforms.”Id. 43 Improving simplicity in order to aid understanding and application was a significant goal of the 1938 adoption of the Federal Rules. See, e.g., Stephen N. Subrin, Uniformity in Procedural Rules and the Attributes of A Sound Procedural System: The Case for Presumptive Limits, 49 Ala. L. Rev. 79, 80 (1997) (noting that the failed effort to develop uniform procedures, and that the resulting fact that “lawyers had difficulty knowing what procedure would apply in any given federal district court[,]” prompted the development of the Federal Rules, which were intended to be “one simple, flexible procedure to apply to all cases (trans-substantive uniformity)”); see also Alan B. Morrison, The Vol. 12, No. 2 Northeastern University Law Review 721

The value of simplicity in a procedural system is effectively a story about the value of uniformity in that same system; it is hard for a “simple” procedural system to be nonuniform. Commentators have noted the many arguments favoring a uniform procedural system.44 Professor Thomas Main’s piece on uniformity in rulemaking begins with a description of the many ways in which that aspect of procedural rules—and particularly transsubstantive rules—has been lauded:

So deeply is the idea of uniformity embedded in American legal thought that many proceduralists find it difficult or unnecessary to explain why uniformity is thought to be good. Whether because of the lure of simplicity, the appearance of neutrality, the like- ness to science, the feel of efficiency, the imprimatur of professionalism or some combination of these, the norm of procedural uniformity enjoys virtually universal approval.45

As I discuss further below, difficult questions have been posed about the degree to which, in practice, uniform and simple procedural systems are actually uniform or simple.46 Even when professional practice and judicial discretion leads to “as applied” complexities in the system, however, a common, transsubstantive procedural system generates important values. First, a uniform and transsubstantive system creates a common language for discussion about legal procedure. This common language permits the training of law students and provides a useful starting point for generalist judges and attorneys in the application of common rules to procedural problems. Second, that common language generates at least some systemic pressure for common interpretation. While a “foolish consistency is the hobgoblin of little minds,”47 a multiplicity of sub-

Necessity of Tradeoffs in A Properly Functioning Civil Procedure System, 90 Or. L. Rev. 993, 996 (2012) (“[I]t is simpler to have a single set of procedural rules for all areas of the law….”). 44 See, e.g., Federal Rules, Local Rules, and State Rules, supra note 10, at 2001 (discussing importance of procedural uniformity to development of Enabling Act and the Federal Rules); Main, supra note 11, at 317 (2001) (“[C]ommentators very seldom take issue with the normative value of procedural uniformity.”). 45 Main, supra note 11, at 311–12; see also id. at 312–14 (discussing the importance of uniformity as a driving force in the development of both the Field Code and the Federal Rules). 46 See infra Part I.C.2. 47 Ralph Waldo Emerson, Self Reliance, Essays: First Series (1841), https://emersoncentral.com/texts/essays-first-series/self-reliance/ (“A 722 Dobbins stance-specific procedures will necessarily undermine the image, if not the substance, of uniformity and consistency that is so valuable to the procedural realm. Common language and consistency are particularly valuable in a system in which the primary practitioners—the judges who apply the procedural rules and (to a lesser degree) attorneys—are generalists. This is not to say that judges do not develop “expertise” in a particular area; they certainly can and do.48 Rather, I mean that the bulk of elected and appointed judges in the U.S. legal system preside over courts with jurisdictional responsibility over a broad range of substantive topics. While particular judges may well develop expertise within a particular area of the law—becoming known, for instance, as a judge with a particular interest in insurance law— most trial court and appellate court judges in the state and federal systems are likely to be called upon to decide cases from a broad range of substantive areas. In such a system, having a multiplicity of procedural systems—not to mention different language and relevant rules regarding those systems—costs participants time and energy, undermines consistency, and ultimately threatens a return to the complexity that spurred the rise of procedural reform in the first instance.49 Transsubstantivity, on the other hand, can ease at least some of that complexity. As early advocates of a transsubstantive system argued, in such a system “judges and lawyers do not need to relearn procedure every time they delve into a new field of substantive doctrine.”50 While the evolution of a transsubstantive system—and the role of discretion within it—necessarily means that uniformity is more of an ideal than a description, the goal of uniformity is still an

important value served by transsubstantivity.51

foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”). 48 On this point, see generally Edward K. Cheng, The Myth of the Generalist Judge, 61 Stan. L. Rev. 519 (2008). 49 See Main, supra note 11, at 312–13; Processes of American Law, supra note 1, at 1221 (“[T]rans-substantive doctrine can lower the barriers to entry for areas of practice. General rules mean fewer advantages for legal specialists. Trans- substantivity thus helps to enable generalist lawyers to practice in a wider array of contexts.”). But see Stephen B. Burbank, The Complexity of Modern American Civil Litigation: Curse or Cure?, 91 Judicature 163, 164 (2008) (arguing that the “simple” Federal Rules have themselves resulted in complexity). 50 Trans-Substantivity, supra note 4, at 372. 51 See An Exorcism, supra note 11, at 2082–85 (arguing for the value—and theoretical validity—of flexibility in a transsubstantive procedural system). Vol. 12, No. 2 Northeastern University Law Review 723

C. Challenges—and Some Tentative Responses—to Reliance on a Transsubstantivity Principle in Judicial Decision Making Affirmative arguments for the value of transsubstantivity run quickly up against some challenges that, over time, have evolved into significant criticisms of the doctrine. I address three of the most significant below, and offer some initial thoughts about their application to the issues addressed in this Article.

Challenge 1: The institutional validity of judicially-generated transsubstantive rules depends on a false distinction between substance and procedure. As Professor Marcus and others have noted, around the time that the adoption of the Federal Rules marked the apex of transsubstantivity as a driving principle in our legal system, the “jurisprudential prerequisite” of the doctrine “began to weaken.”52 The primary issue is the uncertain line between substance and procedure.53 A system that is rooted in the ability to distinguish between “value-neutral” procedure and “value-driving” substance is bound to have difficulties once one recognizes that it is difficult not only to distinguish between substance and procedure, but that even “procedural” rules have substantive content.54 For instance, the different standards for pleadings—and the degree of specificity required of those seeking relief—inherently embed a substantive value judgment about the degree to which the procedural system should encourage parties to seek redress for legal injuries even in circumstances where facts are unclear.55 As Professor Stephen Burbank has argued, the permeable line between substance and procedure and the systemic complexities that flow from that permeability have driven reform strategies like judicial management and alternative dispute resolution (“ADR”)—strategies that amount to “steps in the flight from law.”56 He argues that one way to avoid this flight would be to abandon transsubstantive rules in favor of codifying substance-specific “guidance” that currently pervades our system.57

52 Trans-Substantivity, supra note 4, at 399. 53 Id. at 399–400 (describing concerns, articulated at the time of the development of the Federal Rules of Civil Procedure, about the difficulty of defining a clear procedure-substance line). 54 See id. 55 See, e.g., Christopher M. Fairman, Heightened Pleading, 81 Tex. L. Rev. 551 (2002) (noting substantive impact of different standards for the application of Fed. R. Civ. P. 8 pleading rules). 56 Of Rules and Discretion, supra note 3, at 716. 57 Id. at 716–17 (“If we should have standing orders for RICO cases, why should we not have uniform rules that govern such cases, and those like them, in the respects in which they are deemed atypical, either because of their procedural 724 Dobbins

This Article does not seek to rehash the jurisprudential dispute over whether it is possible to distinguish “substance” from “procedure” in a logically rigorous manner. I recognize that the line between substance and procedure can be difficult to draw, and that even rules and statutes that are universally recognized as “procedural” will have substantive policy effects that generally would be viewed as improper subjects for judicial control. That said, both observers and critics of the transsubstantivity doctrine recognize that it served an important role in the development of the Federal Rules, and that the doctrine (not to mention the substance-procedure dichotomy) retains an important role in how most parties operate in today’s legal system.58 While it may be difficult to draw a logically coherent line defining what counts as “procedure” that is appropriately within judicial control,59 there can be little doubt that both judges and legislators (not to mention the systems that define the processes by which courts and court-adjacent parties establish “procedural” rules) have an understanding about the kinds of activities that fall on one side of the divide or the other, rather than into the foggy boundary lay- er that the academic literature identifies between substance and procedure.60 To be sure, the clarity that the drafters of the Federal Rules brought to their adoption of the rules has been undermined in recent years.61 Nevertheless, even though the core understanding about the substance-procedure distinction may fail at the margins, the line is still a well-embedded understanding in our legal system.62

requirements or the requirements of the substantive law? If civil rights cases really do require special pleading rules, perhaps they also require other special rules that accommodate their distinctive attributes. If we should have an unofficial Manual For Complex Litigation, why should we not think about a separate set of procedural rules for complex cases, as well as a system for identifying such cases?” (cleaned up)). 58 See, e.g., Trans-Substantivity, supra note 4, at 403 (noting that court-supervised rulemakers “continue to respect and in some instances vigorously reassert the trans-substantivity limit on their power”). 59 See Stephen B. Burbank, The Costs of Complexity, 85 Mich. L. Rev. 1463, 1473 (1987) (“The reminder that there is no bright line between procedure and substantive law has been a refuge of procedural reformers for fifty years.”). 60 This is not a theoretically rigorous position, of course, and can generate entirely justifiable criticisms. As Clark and others concluded, however, “the labels ‘substance’ and ‘procedure’ [have] a ‘common core of meaning’ that [makes] them pragmatically useful.” Trans-Substantivity, supra note 4, at 400 (citations omitted). 61 Id. at 402–03 (citations omitted). 62 While the transsubstantive understanding reached its zenith with the adoption of the Federal Rules of Civil Procedure, it may have been the subsequent Vol. 12, No. 2 Northeastern University Law Review 725

But as Professor Marcus notes, “[b]ecause procedural rules can have regular, predictable impacts that differ by substantive area of litigation, trans-substantivity and substance-specificity are ideal types at two ends of a spectrum. . . .”63 In this respect, the points at the end of the spectrum, at least, give rise to a “theoretically suspect but practically meaningful trans-substantivity principle”64 that affects not only how courts think about their own place in the rulemaking system but—as this Article argues—also how they think about the role of legislatures in that same system.

Challenge 2: The systemic benefits of transsubstantive rules depend on an impossible-to-achieve uniformity in the legal system. Beyond the difficulty of characterizing rules as “procedural” or substantive, commentators have offered a further challenge to continued reliance on a transsubstantivity principle in the federal courts by noting that uniformity promised by transsubstantivity— and the associated benefits of that uniformity—has been impossible to achieve in fact, and is “the antithesis of trans-substantive uniformity.”65 The sweeping nature of transsubstantive rules means that they are hard to apply without necessarily allowing judges significant discretionary power. Indeed, in advocating for the development of the Federal Rules, Charles Clark favored broad trial court discre-

decades in which the principle grew its deep roots into our legal system. Despite serious questions being posed about the jurisprudential basis for transsubstantivity, “[f]or almost forty years [between the mid-1930s and mid- 1970s], Congress was content to leave procedural lawmaking to the federal courts and to the institutional judiciary whose independence Congress itself had fostered, including in rulemaking.” Procedure, Politics and Power, supra note 10, at 1703. It was during this time that supporters championed the value of the rules and the transsubstantivity principles they so tangibly represented, and deeply embedded the principle of transsubstantivity into our national legal culture. Id. at 1709–10. At the same time, of course, political pressures mounted on the procedural system that arose with the adoption of the Federal Rules and the following state-level adoption of similar transsubstantive rule systems. These political challenges, as well as a variety of other systemic changes, led not only to the increasing trend of legislative adoption of substance-specific procedures, but also to what Professors Subrin and Main call the “Fourth Era of Civil Procedure”—one in which procedure and motion practice, rather than trial and factfinding, dominate the resolution of cases. See Subrin & Main, supra note 30, at 1880. 63 Trans-Substantivity, supra note 4, at 375. 64 Id. at 416. 65 Federal Rules, Local Rules, and State Rules, supra note 10, 2026. 726 Dobbins tion with regard to pleading standards and other rules.66 Eventually, however, Clark “abandoned this view as well, decrying ‘the perils of attempted rule-making by individual judges’ as needing to be cor- rected by uniform Federal Rules.”67 Clark’s concern about local (and individual) variation from otherwise uniform national rules presaged the argument, offered by some critics of transsubstantivity in the federal system, that benefits claimed for the uniformity and simplicity of a transsubstantive system are largely unavailable where significant disuniformity still exists. As Professor Steve Subrin has pointed out, for instance, given the variation between state and federal courts, between different federal district courts, and between different judges, there is no real way to achieve uniformity in civil procedure in the United States. Furthermore, he argues, any uniform system will fail to adequately address varying procedural needs that arise from inherent variation in cases, which means that discretion or local variation will necessarily undermine the transsubstantive nature of the procedural system. At the same time, however, the system and its participants demand rules for many of the same reasons that transsubstantivity was such a significant theme in the development of the Federal Rules in the first instance. The only way to achieve some balance of uniformity and case-based precision in a rules-focused environment, he suggests, is to adopt non-transsubstantive rules.68 Noting substantial local variation in how cases are treated, Carl Tobias joins in on this argument, suggesting that “trans-substantivity should now go ‘gentle into that good night.’”69 It is worth noting, perhaps, that many of those who argue that uniformity is not only non-existent but also unreachable point to examples that I (and, I think, Professor Marcus) would label as instances of “non-uniformity,” but not of non-transsubstantivity. While different procedural approaches in various federal district courts create a lack of uniformity in the federal system (as does the lack of consistency between states, or between state and federal

66 See Peter Julian, Charles E. Clark and Simple Pleading: Against A “Formalism of Generality,” 104 Nw. U. L. Rev. 1179, 1203–04 (2010). 67 Id. 68 Federal Rules, Local Rules, and State Rules, supra note 10, at 2041–43; see also Burbank, supra note 59, at 1474 (“Many of the Federal Rules authorize essentially ad hoc decisions and therefore are trans-substantive in only the most trivial sense. The trend may be toward rules conferring greater discretion on the trial judge.”); Of Rules and Discretion, supra note 3, at 715 (“More important, the banner of simplicity and predictability under which [transsubstantive rules] fly is by now false advertising.”). 69 Carl Tobias, The Transformation of Trans-Substantivity, 49 Wash. & Lee L. Rev. 1501, 1508 (1992). Vol. 12, No. 2 Northeastern University Law Review 727 courts), that lack of uniformity is not itself an indicator of an abandonment of transsubstantivity. Only when those local rules apply differently to cases dealing with different substantive areas would they in fact be non-transsubstantive—and, generally speaking, most federal local rules do not address particular substantive areas of the law, but rather, particular kinds of cases based on characteristics ex- trinsic to the causes of action alleged in them. There are exceptions: to the degree that civil rights cases require a heightened pleading standard, for instance, the courts have interpreted Fed. R. Civ. P. 8 in a substance-specific manner. But a decision to apply different rules to all pro se cases, for instance, is not, in itself non-transsubstantive— though it is non-uniform. While a lack of uniformity can undermine some of the most significant values of transsubstantivity, such a lack of uniformity does not suggest that the principle of transsubstantivity itself, or the values it was intended to achieve, have been altogether abandoned.70 Furthermore, this challenge to the value of transsubstantivity is ultimately rooted in current practices—practices that can be interpreted differently depending on one’s tolerance for (or insistence upon) uniformity. For all the variation in existing systems, “the current procedural regime fully embraces transsubstantive procedural design.”71 Furthermore, while there may currently be a trend toward the adoption of non-uniform rules,72 that trend could change. Although the current lack of uniformity certainly undermines the value of a transsubstantive system, more uniformity—generated in part by a recommitment to (or re-recognition of) transsubstantivity—could help restore some of that value. Professors Subrin and

70 See, e.g., id. at 1504–05. Tobias argues that the “federal judiciary, for its part, has contributed substantially to the dismantling of trans-substantivity.” While Tobias does note some true non-transsubstantive local variations (on, for instance, the application of Fed. R. Civ. P 8 to civil rights cases), most of his examples of variability in how local rules and the Manual for Complex Litigation manage certain cases are nevertheless still transsubstantive. On the distinction between transsubstantivity and uniformity, see Trans- Substantivity, supra note 4, at 376–77. Professor Marcus also suggests that substance-specific variability based on how judges exercise discretion should not be properly characterized as a systemic indictment of the principle of transsubstantivity, since “nothing in the discretion that the Federal Rules provide manifests a systemic approval or disapproval of a particular substantive area of litigation.” Id. at 378. 71 Kwoka, supra note 1, at 1496. 72 See Trans-substantivity, supra note 4, at 373 (“Trans-substantivity seems poised to depart from the center of the procedural stage.”); see also Stephen R. Burbank, The Transformation of American Civil Procedure: The Example of Rule 11, 137 U. Pa. L. Rev. 1925 (1989) (pointing out the decline of transsubstantivity and uniformity in the federal system). 728 Dobbins

Burbank would likely argue that this is a fool’s errand because the presence of discretion and disuniformity is inherent in the system. In the end, though, the vast majority of the disuniform rules to which these critics point are themselves transsubstantive at heart. Their disuniformity therefore does not undermine a claim that transsubstantivity remains an important driving factor in the current system; moreover, it does not mean that a wholesale abandonment of it would improve the system overall. Finally, even with a lack of uniformity in the present system, the argument remains that the principle of transsubstantivity continues to influence judicial review of legislative action in our current legal system.73

Challenge 3: A strong transsubstantivity principle prevents the adoption of efficient and valuable substance-specific procedures, and (to the degree that transsubstantivity is embedded in a value-laden system that primarily serves a particular set of policy outcomes) can be wielded against rational substance-specific procedural changes. The practical consequence of the above challenges to the value of transsubstantivity is that its supposed benefits are ultimately small when compared to the potential costs associated with the system’s rejection of substance-specific procedure. As Professor Robert Cover noted in what is recognized as an important early discussion (and critique) of transsubstantivity:

[O]ur primary set of norms for optimal procedure, the procedure available in our courts of general jurisdiction, is assumed to be largely invariant with substance. It is by no means intuitively apparent that the procedural needs of a complex antitrust action, a simple automobile negligence case, a hard-fought school integration suit, and an environmental class action to restrain the building of a pipeline are sufficiently identical to be usefully encompassed in a single set of rules which makes virtually no distinctions among such cases in terms of available process. My point is not that the Federal Rules are not workable over such a broad range. But it may be worth asking in what sense that codification works well because of its trans-substantive aspiration, and in what sense it works in spite of it.74

73 See infra Part III. 74 Cover, supra note 14, at, 732–33. Vol. 12, No. 2 Northeastern University Law Review 729

The systemic pressure against efficient substance-specific procedure is, in the mind of many critics of transsubstantivity, one of the more important reasons to abandon any strong application of that principle in the judicial rulemaking process.75 Nearly every substantial critic of transsubstantivity argues that the doctrine should abandon its traditional aversion to substance-specific rulemaking (as well as the now-undermined trope that “procedure is value neutral and carries no substantive impact”) and permit not only disuniformity, but the development of substance-specific procedural reforms.76 Only in this way, they suggest, can clear substance-specific improvements in procedural efficiency be accomplished. In the end, however, this criticism is only applicable if the transsubstantivity norm is so strong that it prohibits the adoption of efficient and appropriate substance-specific rules in all instances—not just by courts, but by legislative actors as well. As I discuss further in Part III, my proposal does not go nearly so far as that. If anything, by explicitly acknowledging that legislatures can (in appropriate circumstances) adopt substance-specific procedural reform, my proposal could enhance the adoption of well-considered substance-specific procedural changes. Before explaining how the application of transsubstantivity to legislative behavior might work, however, Part II briefly discusses the degree to which transsubstantivity is largely absent from discussions about legislative rulemaking. If anything, commentators have assumed that legislatures are entirely free to adopt substance-specific rules, free from any transsubstantive constraints.

II. Are Legislatures Bound by Transsubstantivity? The Literature Suggests “No” Transsubstantivity evolved out of a distinction between procedure and substance—a distinction that was paralleled by the development of a doctrine that assigned primary responsibility for rulemaking to courts and their affiliated rulemaking committees. Given the sharp contrast between judicially-driven procedures and

75 See, e.g., Processes of American Law, supra note 1, at 1194 (citing Stephen N. Subrin, Fudge Points and Thin Ice in Discovery Reform and the Case for Selective Substance-Specific Procedure, 46 Fla. L. Rev. 27, 45–46 (1994)). Though not as critical of the transsubstantivity principle as others, Suzette Malveaux also points out that “trans-substantivity creates certain inefficiencies.” A Diamond in the Rough: Trans-Substantivity of the Federal Rules of Civil Procedure and Its Detrimental Impact on Civil Rights, 92 Wash. U. L. Rev. 455, 460 (2014). 76 See, e.g., Malveaux, supra note 75; Limitations, supra note 3, at 404–05 (“[S]ubstance-specific protocols may be in order for some types of litigation that have been excluded from the simple track.”). 730 Dobbins legislatively-driven substance, there has been very little discussion about the degree to which legislatures might themselves be bound by transsubstantivity principles. At first glance, this makes both historical and jurisprudential sense. Much of the driving force behind procedural reform in the 19th and early 20th centuries was a perceived distinction between substance and procedure. To free procedure from the value-laden content of substantive law, it needed to be focused on implementing that substantive law, which left “value neutral” procedure in the hands of judges, rather than legislatures. Because the principle of transsubstantivity was developed with the intent of “de-politicis- ing” the development of procedure,77 it is no surprise that inherently political legislative enactments should be viewed as substance-specific—i.e., as having characteristics at the antipode of those representing judicial procedural transsubstantivity. Because “judicial” procedure is apolitical and transsubstantive, legislative enactments are political and inherently substance-specific. Given the strong rhetoric used to defend the role for courts in the rulemaking process (and the long fight to establish that right in the federal system), the primary fight about the legislative role in rulemaking has been about whether legislatures have a place in rulemaking at all, not what the content of that legislative rulemaking should look like.78 As advocates for a court-adjacent rulemaking system reluctantly conceded the right of legislatures to participate in the rulemaking process (at least in systems without a constitutional delegation of rulemaking powers to the courts79), commentators have rarely questioned the ability of legislatures to enact any form of procedural reform—whether transsubstantive or substance-specific. In the end, then, even the strongest proponents of transsubstantivity have focused their attention on a claim that the principle should bind courts and court-adjacent rulemakers, but they rarely argue for the application for such a principle to legislative actors. Thus, in his comprehensive review of the history of transsubstantivity in the federal process, Professor Marcus found a take-away message: that while “court-supervised rulemaking remains legitimate if it generates trans-substantive rules, … substance-specific rules must

77 See, e.g., supra Part I.A. 78 See, e.g., Linda S. Mullenix, Judicial Power and the Rules Enabling Act, 46 Mercer L. Rev. 733, 755 (1995) [hereinafter Judicial Power]; Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 77 Minn. L. Rev. 1283, 1316–22 (1993) [hereinafter Unconstitutional Rulemaking] (discussing such an argument as applied to a federal statute). 79 See, e.g., infra note 153. Vol. 12, No. 2 Northeastern University Law Review 731 come from the political process.”80 Similarly, Professor Carrington acknowledged that Congress may need to enact substance-specific legislation in appropriate circumstances, but did not identify any systemic barrier to such legislative behavior.81 The lack of any significant argument against substance-specific legislative procedures is a little surprising; as discussed in Part I.B supra, arguments for transsubstantivity are not rooted exclusively in a presumption that the judiciary should have control over rulemaking. While that institutional control has long been a part of the argument for the importance of transsubstantivity, it is not the only argument, and one might expect that the values of transsubstantivity would carry over into discussions about the (in)appropriateness of substance-specific legislative action. As a practical matter, though, this has not been the case. The tendency to accept the validity of substance-specific procedural reform is consistent with practice, though. Generally speaking, there is little motivation for legislatures to focus (except in unusual circumstances) on transsubstantive procedural change.82 Instead, to the degree that any party seeks out procedural changes that are particular to their interest areas, accompanying procedural changes are likely to be substance-specific as well. Not only are such limited proposals for procedural change less likely to challenge other entrenched interests (and thereby to engender opposition to proposed legislation), but there are no clear advocates for transsubstantive procedural change except when either the judiciary or the bar perceive a need for such a change. The example of class action reform demonstrates this effect; Professor John Leubsdorf noted in 1997 that:

[t]he congressional origin of most class action changes links with their substantive impetus. Procedural rulemakers have continued to write general, transsubstantive rules. Because so many groups have con- flicting interests in class action rules, no consensus supporting significant class action changes of transsubstantive impact has arisen. Interest groups seeking narrower changes have found Congress a more receptive audience whether the changes they sought

80 Trans-Substantivity, supra note 4, at 375. 81 An Exorcism, supra note 5, at 2086. But see id. (noting that substance-specific procedures should be enacted only with care in order to avoid interest group capture, error, or systemic costs to the value of transsubstantivity). 82 See infra note 127 & accompanying text. 732 Dobbins

were substantive, procedural, or both.83

The lack of any mention of a legislative transsubstantivity principle is therefore consistent with the focus of the creation and criticism of the transsubstantivity principle in judicial rulemaking. As a theory that has developed (in the federal system, at least) simultaneously with the argument for court-adjacent rulemaking, both supporters and critics of the doctrine have focused on its role within the judicial system, not the legislative process. There are other reasons why one might formally reject a principle of legislative transsubstantivity, though. First, as applied to judicial rulemaking, transsubstantivity is premised on a concern that any substance-specific procedural reform would be illegitimate. As entities that are not nearly as responsive to the public as legislators, courts are able to adopt rules only because those rules are transsubstantive on their face. If a court were to adopt substance-specific procedural reform, that court would face certain criticism for making what would be viewed as a value-laden and inherently political decision without the kind of legitimacy provided by the responsive- ness that representative bodies provide to their constituents.84 As elected representatives, however, legislators do not face the same concerns about democratic legitimacy as do appointed judges. Legislators are expected to enact substantive laws based on political determinations and policy judgments, and are returned to office (or not) based on how well those decisions reflect the needs of their constituencies, so allowing substance-specific procedure to be adopted by legislatures does not seem to be a particularly remarkable proposition. Second, legislatures (particularly in the states) are not generally bound by many substantive constraints. Other than constitu-

83 John Leubsdorf, Class Actions at the Cloverleaf, 39 Ariz. L. Rev. 453, 455 (1997). 84 Arguably, if this institutional legitimacy argument held sway, one might expect to see more substance-specific rules generated by courts in states where judges are elected. A study to see if that is the case might generate useful data, but to my knowledge, it is not. Courts seem to focus on transsubstantive changes not because (or at least not exclusively because) of concern about a lack of legitimacy, but because of separation of powers concerns. Courts enacting substance-specific rules are still engaging in value-laden decisions. Evenif those decisions are backed by elected judges, policy-driven substance-specific decisions seem beyond the scope of appropriate judicial behavior. See generally Processes of American Law, supra note 1, at 1229 (“Trans-substantivity constrains a judge’s policymaking flexibility and thus protects against encroachments on legislative terrain. It denies judges the authority to discriminate among substantive regimes and thus to make arguably political choices better left to coordinate branches.”). Vol. 12, No. 2 Northeastern University Law Review 733 tional limits governing the roots of legislative power that are set out in some states and the federal system,85 most legislative bodies have a relatively broad scope of legislative authority. While procedural change is, by definition, premised on the notion that substantive values are not embedded in those changes, the validity of that premise is at its weakest with respect to substance-specific procedural reform. While we might justifiably hesitate to allow courts to seize for themselves the ability to legislate (even “procedurally”) within a particular substantive area, there is little such concern when it comes to similar action by a legislature. After all, not only are most judges elected, rather than appointed, but it is legislatures, not courts, that are tasked with legislative authority.86 In the end, then, it should not be particularly surprising that we have not typically recognized legislative actors as being constrained by principles of legislative transsubstantivity. As discussed in the next section, though, the fact that we do not recognize such constraints does not mean that they do not exist.

III. Legislative Transsubstantivity as a Foundational Premise in Our Legal System Before diving wholly into an examination of the role of how transsubstantivity principles drive judicial decision making, I should offer this initial observation: It is without dispute that legislatures have adopted a sweeping range of substance-specific procedures over the last 40 years.87 The broadest possible interpretation of the thesis of this Article runs against those important and tangible examples of how legislatures have, in some ways, abandoned any transsubstantivity principle that might have governed their substantive enactments. As discussed further below, however, I am not try-

85 See infra note 153. 86 “Judges trespass on legislative terrain, so the argument goes, when they develop particularized processes to advance ends that they, not legislatures, select. Critics complain that judges use subterfuge to boot, as they cloak what often amounts to a change to the antecedent regime in the guise of process law. In some instances, this criticism might reflect a narrow understanding of legitimate judicial power. But some particularly aggressive deployments of process law must exceed the bounds of judicial authority.” Processes of American Law, supra note 1, at 1228–29 (2013). The National Center for State Courts maintains a useful data set discussing the various methods of selection and retention of state judges. See Methods of Judicial Selection, Nat’l Ctr. for St. Cts., http://judicialselection.us/judicial_selection/methods/selection_of_ judges.cfm (last visited Feb. 16, 2020). 87 See, e.g., Trans-Substantivity, supra note 4, at 402–09 (discussing some of this substance-specific legislation). 734 Dobbins ing to argue for the broadest possible application of this notion of legislative transsubstantivity. Rather, my point is twofold: 1) There remains, in close cases, a set of decision rules that is motivated by a deep adherence to transsubstantivity, and that leads courts to reject a substance-specific reading of particular legislation where it is not dictated by the plain language of the statute; and 2) That the decision rules motivated by the principle of transsubstantivity, even as applied to legislative enactments, should be encouraged, for such a principle (as applied by the courts, and as part of legislative decision making) pushes legislatures to be clear in their adoption of substance-specific rules, and helps to preserve many of the same benefits of transsubstantivity that drive its continued influence in the legal system.

A. Presumptions Favoring General Rules and Transsubstantivity The first and most significant role that transsubstantivity has in the evaluation of legislative enactments is in the imposition of certain decision rules governing how our courts think of procedure when they are interpreting and applying legislation. While a wholly neutral perspective on how substantive legislation interacts with legal procedure might simply call for courts to make decisions based on their best interpretation of legislative intent, judicial decision making is not so neutral. As discussed further below, when considering legislation, courts apply presumptions and decision rules that can best be thought of as embodying transsubstantive principles. In this way, courts at least implicitly impose on legislative behavior a transsubstantivity norm. Consider, for example, the Supreme Court’s direction that federal courts “should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns.”88 While this guidance amounts to a run-of-the-mill application of judicial transsubstantivity principles when it comes to the application of standard rules of civil procedure, the Courts have tended to apply this principle even when substance-specific statutes might suggest the contrary. As Professor Marcus notes, for instance, “[t]he pleading requirements in [prison litigation, securities litigation, and medical malpractice litigation] have substantive goals and are not in any sense value-neutral.”89 Courts seeking to implement legislative intent in these areas might be expected to broadly interpret statutory signals in a manner that adopts substance-specific procedures even in unclear cases. And yet, they do not. In these cases, at least,

88 Jones v. Bock, 549 U.S. 199, 212 (2007). 89 Trans-Substantivity, supra note 4, at 415. Vol. 12, No. 2 Northeastern University Law Review 735 transsubstantivity appears to hold sway. Consider, for instance, Congress’ 1995 adoption of the Pris- oner Litigation Reform Act (PLRA), which codified a strong skepticism about the value of prisoner litigation. In Jones v. Bock, the Sixth Circuit concluded that the PLRA’s scheme, which required institutional exhaustion before a prisoner could file a federal suit against prison officials regarding the terms of a prisoner’s incarceration, also required prisoners to plead the facts regarding that exhaustion in their complaint.90 As the Supreme Court put it on review, the appellate court believed that the PLRA’s substance-specific scheme could not “function effectively” absent the additional pleading requirement.91 On review, however, the Supreme Court rejected that substance-specific interpretation of the statute, and cautioned the federal courts to resist the urge to adopt substance-specific procedural requirements in the absence of statutory language to the contrary.92 In that case, there was no language in the PLRA that was directly relevant to the new substance-specific rule imposed by the Circuit Court, so one might argue that this is not a true application of transsubstantivity principles to the legislative process. One might make similar arguments about other circumstances in which the Supreme Court rejected heightened pleading requirements despite legislative history suggesting that Congress would have been amenable to such heightened standards.93 But even where there was such language, the courts have retained a transsubstantive approach. Thus, for instance, provisions of the PLRA allow defendants to avoid answering a complaint, and provide that the court can only order a responsive pleading if “the plaintiff has a reasonable opportunity to prevail on the merits.”94 Courts recognized that this standard was not specifically defined by Congress,95 and some commentators argued that this provision imposed on plaintiffs a higher pleading

90 Bock, 549 U.S. at 202–03. 91 See id. at 213. 92 Id. at 212 (“In a series of recent cases, we have explained that courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns.”); id. at 213–17 (applying that principle to this case and rejecting the lower court’s substance-specific interpretation of Rule 8). 93 See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (rejecting higher standards in Title VII cases); Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993) (rejecting heightened pleading standards in §1983 case); see also Johnson v. City of Shelby, 574 U.S. 10 (2014) (rejecting heightened pleading standard insisting on accurate citation to 42 U.S.C. §1983 to avoid motion to dismiss). 94 42 U.S.C. § 1997e(g)(2) (2018). 95 See, e.g., Aaron v. Dyer, 2016 WL 1698399, at *1 (E.D. Mich. Apr. 28, 2016). 736 Dobbins standard in prisoner litigation cases than was required under Fed. R. Civ. P. 8.96 Rather than adopt that argument, however, courts chose to reject a substance-specific interpretation of the rules, and to instead rely on the existing transsubstantive Rule 8 standards.97 As an example that not all presumptions can avoid defeat by clear legislative language, Professor Marcus offers another example in which Congress adopted what it explicitly intended to be heightened pleading standards in complaints that fall within the provisions of the Private Securities Litigation Reform Act (PSLRA).98 In the case of the PSLRA, Congress insisted that plaintiffs making certain allegations regarding scienter must lay out “with particularity” the facts supporting those allegations.99 The clear statutory language, especially in its explicit borrowing of the heightened pleading standard found in Fed. R. Civ. P. 9(b), has been interpreted by courts consistent with that (latter) Rule.100 While Congress’ desire to adopt substance-specific procedure won out over the application of Rule 8, then, the courts effectively imposed as transsubstantive a rule as possible (i.e., by making reference to Rule 9), given the clear statutory language. Court insistence on applying principles of transsubstantivity to legislative behavior can also come in the form of presumptions favoring general procedural rights. Consider, for instance, case law favoring the availability of review in the administrative context. Al- though the federal Administrative Procedure Act (“APA”)101 falls outside the scope of the system of civil procedure discussed thus far, it nevertheless defines what amounts to a transsubstantive process for managing legal disputes within the administrative system. Given that, decisions that insist on applying default rules derived from the APA are decisions that effectively impose transsubstantivity principles. By insisting that Congress must clearly articulate any intent to abandon those transsubstantive processes, the court imposes a principle of legislative transsubstantivity. Thus, in Bowen v. Michigan Academy of Family Physicians, the Court applied a presumption of re-

96 See, e.g., Eugene J. Kuzinski, Note, The End of the Prison Law Firm?: Frivolous Inmate Litigation, Judicial Oversight, and the Prison Litigation Reform Act of 1995, 29 Rutgers L.J. 361, 381 & n.116 (1998). 97 See, e.g., Zirko v. Ghosh, 2012 WL 5995737, at *5, *13 (N.D. Ill. Nov. 30, 2012) (applying “plausibility” standard to prisoner complaint). 98 Trans-Substantivity, supra note 4, at 406–07 (discussing Pub. L. No. 104-67, 109 Stat. 737 (1995)). 99 15 U.S.C. § 78u-4(b)(1)(B), (b)(2) (2018). 100 See, e.g., Novak v. Kasaks, 216 F.3d 300, 309–11 (2d Cir. 2000) (concluding that Congress intended to adopt scienter pleading standard previously articulated by that court in Acito v. IMCERA Grp., Inc., 47 F.3d 47, 52 (2d Cir. 1995)). 101 5 U.S.C. §§ 551-706 (2018). Vol. 12, No. 2 Northeastern University Law Review 737 viewability to allow a challenge to a regulation governing Medicare Part B reimbursements, and it did so despite statutory provisions that seemed to limit review to Part A reimbursements.102 The Court started from, and ultimately relied on

the strong presumption that Congress intends judicial review of administrative action. From the beginning “our cases [have established] that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.103

Other examples of similar transsubstantive presumptions exist. There are, for instance, presumptions against the imposition of retroactive legal obligations104 and presumptions that Congress has not intended to repeal the writ of habeas corpus.105 While all these cases are rooted in presumptions and rules of interpretation that appear to have little to do with principles of transsubstantivity,106 those presumptions also align with an underlying premise: The proposition

102 Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 668–70 (1986). As Marcus notes in Processes of American Law, administrative procedure is as “transsubstantive” as judicial civil procedure, and there are important overlaps in how the principle applies (and is developed) in these fields. Processes of American Law, supra note 1, at 1207–15. Because administrative agencies and processes are not subject to direct judicial creation and control in the same way as our common-law-derived courts, it should not be surprising that principles of legislative transsubstantivity would have an important role in administrative processes. That said, courts still have an important voice in the law of administrative process, and a tendency toward transubstantivity by judges will naturally carry over into the realm of administrative procedure as well. See id. at 1217–18 (noting judicial influence over administrative processes). 103 Bowen, 476 U.S. at 670. 104 See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). 105 See Hamdan v. Rumsfeld, 548 U.S. 557, 572–80 (2006); INS v. St. Cyr, 533 U.S. 289, 298–302 (2001). 106 In Jones, for instance, the Supreme Court’s rejection of the substance- specific interpretation of the PLRA by the Sixth Circuit is arguably rooted in standard rules of statutory interpretation. See 549 U.S. at 212–16. Similarly, the habeas corpus cases are also governed on their face by constitutionally- driven presumptions about the need for habeas availability, rather than by transsubstantivity principles. A similar point might be made about other presumptions that reject substance-specific procedural variation in the absence of clear statements mandating that specific change. In the end, however, a common theme to these presumptions is that they are also consistent with an underlying principle of legislative transsubstantivity. 738 Dobbins that established transsubstantive processes should be applied to litigants unless there is clear statutory language to the contrary. Rather than impose substance-specific interpretations of a particular procedure, courts—in these cases and others—are effectively imposing a legislative transsubstantivity principle in evaluating how to best synthesize substantive goals and established procedures.107

B. Implicit and Explicit Acknowledgement of Transsubstantivity as a General Principle in Procedural Decision Making In some ways, it should not be surprising that courts apply a transsubstantivity principle in their decisions. Despite some recent theoretical challenges, a transsubstantive perspective has dominated procedural thinking in both state and federal courts for at least the last 80 years. Both critics of and advocates for the continued role of transsubstantivity in our system recognize that the principle continues to have a significant place in judicial thinking. As Professor Marcus noted in 2010, “[r]ather than follow the legislative lead and promulgate or approve substance-specific rules or substance-specific rule constructions, court-supervised rulemakers within the federal system continue to respect and in some instances vigorously reassert the trans-substantivity limit on their power.”108 While Professor Marcus’ comment focuses on the role of transsubstantivity in the context of rulemaking, rather than decision making in particular cases, it is not too far of a stretch to apply it to the latter context. After all, the statement explicitly acknowledges that courts have the ability to adopt substance-specific “rule constructions,” but (as least in Marcus’ assessment) do not.109 Second, the statement acknowledges the importance to judicial decision making of the transsubstantivity standard. In the end, the “pattern of legislative and ju-

107 For an argument suggesting another application of a transsubstantivity principle, see Vicki C. Jackson, Printz and Testa: The Infrastructure of Federal Supremacy, 32 Ind. L. Rev. 111, 118 (1998) (“[W]ith respect to federal statutory rights, it is not at all clear that one should presume that Congress intended, by permitting or requiring state court adjudication, to override state procedures or to invite the federal courts to do so by adoption of such a presumption. One might assume, consistent with the Court’s clear statement rules in other areas, that, unless Congress makes its contrary intention clear (in the language of the statute or from its central purposes), when Congress authorizes resort to the state courts, it assumes state court procedures will control.”). 108 Trans-Substantivity, supra note 4, at 403–04. 109 See Trans-Substantivity, supra note 4, at 414, 415 (noting that federal courts could, but generally have not, adopted substance-specific local rules, and that “like the Supreme Court, the behavior of these courts-supervised rulemakers signals that the principle retains some strength as an institutional limit”). Vol. 12, No. 2 Northeastern University Law Review 739 dicial rulemaking since the mid-1990s reflects the same institutional allocation of rulemaking power that had evolved by the 1930s,”110 and “[e]ven as the theoretical underpinnings of trans-substantivity weaken, institutions with rulemaking power manifest by their actions continued respect for the principle.”111 Others make similar observations, noting that “the current procedural regime fully embraces transsubstantive procedural design.”112 Given the dominance of this thinking, it should come as no surprise that transsubstantive principles affect how courts decide cases, and that they insist on clear legislative statements before committing to non-transsubstantive readings of legislative enactments. There is one other indictor that suggests that a transsubstantivity principle already governs legislative behavior to some degree. Consider this: If legislatures were not bound by a notion that (a) courts should be the ones primarily responsible for developing procedure, and (b) that such procedure should be primarily transsubstantive, it would be very likely that our legal system would be characterized by legislatively-driven, substance-specific procedures that largely abrogate transsubstantive principles. As discussed elsewhere in this Article, transsubstantive values are unlikely to receive strong support from active participants in the legislative process. Generalist legislators care too little about the diffuse costs imposed on a transsubstantive system by substance-specific procedural legislation, and there is little incentive for outside defenders of transsubstantivity to step in to argue about its value. As a result, a legislative system unburdened by a principle of legislative transsubstantivity might be expected to engender the very kind of complexity that drove the movement to transsubstantive procedure in the first instance.113 The reformers who advocated for the development of the Federal Rules believed that “[l]egislatures. . . had a tendency to burden a simple code with detailed amendments that turned it into a ‘voluminous, intricate and inelastic system of civil practice.’”114 Similarly, an early pre-Federal Rules ABA report noted of the multiplicity of rules that governed federal court practice under the Conformity Act of 1872 that “[t]o the average lawyer it is Sanskrit; to the experienced feder-

110 Trans-Substantivity, supra note 4, at 403–04. 111 Id. at 375. 112 Kwoka, supra note 1, at 1496. 113 “Late nineteenth century lawyers denigrated the forms of action and the writ system of pleading, which evolved haphazardly and without any overarching theoretical design, as a testament to a theoretically immature legal system with no real structure.” Trans-Substantivity, supra note 4, at 382–83. 114 Trans-Substantivity, supra note 4, at 396 (citing George W. Wickersham, Editorial Comment, The New York Practice Act, 29 Yale L.J. 904, 904 (1920)). 740 Dobbins al practitioner it is monopoly; to the author of text books on federal practice it is a golden harvest.”115 Today’s legal system, however, looks very different than this uncabined world under which substance-specific principles would sway in our legislatures. This suggests that, despite the agglomer- ation of substance-specific procedures onto our legal system over the last forty years, principles of transsubstantivity still play an important, if not dominant, role in legislative involvement in legal procedure. This state of affairs suggests that some systemic pressure already pushes legislatures toward transsubstantivity. If legislatures were entirely unbound by transsubstantive principles, we should have expected to see a proliferation of substance-specific procedures, and an undermining of our transsubstantive system, even more significant than what we have seen in the last half-century. What may be most surprising about legislative transsubstantivity is that courts apply the principle without acknowledging it, and certainly without questioning whether it is an appropriate approach when evaluating the impact of substance-specific legislative decisions on preexisting legal processes. Part of that failure may arise from the fact that the transsubstantivity principle is usually only considered explicitly relevant as part of rulemaking processes, rather than as part of judicial decision making in particular cases.116 As the above discussion notes, however, and as I further argue below in Part IV, courts should not only acknowledge the relevance of a legislative transsubstantivity principle, but they should embrace it. Furthermore, this skepticism should encourage legislators to apply a similar principle to their own process, and limit the adoption of substance-specific procedures to circumstances where the- con sequences of such procedures can be clearly understood, and their terms clearly stated, at the time of enactment.

115 Report of the Committee on Uniform Judicial Procedure, 46 A.B.A. Rep. 461, 466 (1921) (cited in Stephen P. Burbank, Of Rules and Discretion: The Supreme Court, Federal Rules and Common Law, 63 Notre Dame L. Rev. 693, 693 n.1 (1988)). Under the Conformity Act of 1872, Act of June 1, 1872, ch. 255, § 5, 17 Stat. 196, 197, federal courts were required to follow the legal procedure of states in which they sat. 116 The term itself is almost entirely absent from case law. A search for “transsubstantive or trans-substantive or ‘trans substantive’” among all federal and state case law in Westlaw reveals a total of 20 cases, many of which simply quote from a District Court case that uses the term to reference how rulemaking should be transsubstantive. See Tyco Fire Products LP v. Victaulic Co., 777 F. Supp. 2d 893, 904 (E.D. Pa. 2011) (“Using local patent rules to alter a defendant’s pleading obligations, while perhaps practical given the very unique nature of federal patent litigation, offends the trans-substantive character of federal procedure.”). Vol. 12, No. 2 Northeastern University Law Review 741

IV. Legislative Transsubstantivity as a Systemic Virtue

A. Justifications for a Legislative Transsubstantivity Principle Criticisms of transsubstantivity have, to some degree, undermined the premise of value-neutral procedure that helped to justify the deep embedding of judicially-driven transsubstantivity into the legal system. That said, there are other justifications for transsubstantive rules than a legitimacy borne out of an imperfect vision of value-neutrality, and I discuss several of these below. This is not to say that substance-specific procedures might not be more efficient in particular circumstances, but rather that a system of transsubstantive rules has value that goes well beyond the sum of its parts. Thus, even if arguments about legitimacy and “proper” decision makers do not justify the application of legislative transsubstantivity principles, the basic values of simplicity associated with transsubstantive systems can still provide utility to the legal system as a whole.117 As a result, there are good reasons to not merely acknowledge, but to support, the application of a transsubstantivity principle to legislative action. First, and most significantly, most of the concerns about the costs of complexity in our procedural system hold just as true for legislative rulemaking as they do for judicially-driven rulemaking. As an initial matter, complexity requires levels of specialization among practitioners and judges if they hope to appropriately function within each substance-specific area of the law. This takes time and effort to do perfectly—time and effort that might be better spent resolving the substance of particular cases. Furthermore, it is time and effort that may well not be available at all, which increases the likelihood of error and associated inefficiencies.118 One of the motivations for the Field Code’s development in the mid-1800s was avoidance of unnecessary complexity; according to Professor Mar- cus, in Field’s view, “[s]ubstance-specific rules created complexity, which interfered with [the efficient] implementation [of the sub-

117 This is not to dismiss the legitimate criticism that a transsubstantive system is not necessarily uniform. See supra Part I.C.2 (noting criticisms to that effect). It is, however, necessarily more uniform than a system that operates with the types of disuniformity that persist in our system today as well as substance- specific procedures. 118 Cf. Legal Malpractice Attorney Offers Insight, L. Prac. Today (Feb. 14, 2019), https://www.lawpracticetoday.org/article/legal-malpractice-attorney-offers- insight/ (interviewing William Gwire, a legal malpractice attorney of 30 years, citing oversight, inexperience, and poor evaluation as primary reasons for malpractice claims, and further noting that “[A]n adjunct to these three reasons is that the law has simply become extraordinarily complex.”). 742 Dobbins stantive law].”119 Professor Burbank has examined the problems of complexity in the context of federal limitations law—i.e., the question of what statute of limitations governs federal causes of action when the relevant federal statute creating that cause of action does not otherwise clearly provide for a federal statute of limitations.120 In evaluating this question, a federal court practitioner or judge is called (under current case law) to determine “what the most closely analogous state law is” and to apply that statute of limitations. As Professor Burbank notes, however, this is a complicated and time-consuming task that is, like most complex systems, prone to error.121 We would expect similar costs—though with perhaps slightly less uncertainty—from systems in which substance-specific procedures were dominant (regardless of their source). The costs associated with complexity are not borne solely by the legal system, however. They are also borne by legislators. Consid- er, for instance, the point made by early reformers about how transsubstantive procedure can promote efficiency in a system of generalists.122 While today’s legal system—and the actors within it—are necessarily more specialized than was true years ago, most top-level state and federal judges are still generalists in the sense that they preside over courts with jurisdiction over cases from a broad range of substantive areas of the law.123 Similarly, many attorneys enter the legal profession trained and, initially, working as generalists.124 This argument, however, carries over into the legislative context as

119 Trans-Substantivity, supra note 4, at 389. 120 Of Rules and Discretion, supra note 3. 121 Id. at 694–96. 122 See supra text accompanying note 49. 123 See supra text accompanying notes 47–48. 124 See, e.g., NALP Found. & Am. Bar Found., After the JD: First Results of a National Study of Legal Careers 34 (2004), http://www. americanbarfoundation.org/uploads/cms/documents/ajd1_final_report_for_ distribution.pdf (noting that in early years of their careers, majority of lawyers report working on “[nine or more] different matters,” with the likelihood of specialization increasing as the size of the firm increased). Subsequent studies of the same cohort concluded that the proportion of attorneys who specialize in particular areas of the law increased later in their careers, though a significant part still could be characterized as generalists.See NALP Found. & Am. Bar Found., After the JD III: Third Results from a National Study of Legal Careers 36 (2014), http://www.americanbarfoundation. org/uploads/cms/documents/ajd3report_final_for_distribution.pdf (percent of survey self-identifying as “specialist” increased from 39% to 66% over ten years, though percentage spending more than 50% of their time in a given area of the law decreased from 82% to 75% over the same period). Vol. 12, No. 2 Northeastern University Law Review 743 well. Like judges and attorneys, most legislators are generalists125 who must spend time and effort in order to adequately understand the areas in which they seek to legislate.126 Whether in judging or in assessing the value and effect of legislation, complexity decreases efficiency, makes decisions more complicated, and requires additional effort to achieve the same results as a more straightforward system. For legislators, the failure to understand the impact of unique procedures on substantive areas of the law can undermine their ability to achieve policy goals. Similarly, a lack of familiarity with existing systems that comes with complexity can result in needless duplication of otherwise acceptable existing procedures in the status quo. These suboptimal legislative outcomes will likely undermine the ability of legislators to achieve both their policy goals and their reelection, making a presumption in favor of transsubstantivity preferable to the ad hoc development of substance-specific procedures. The risks posed by a proliferation of substance-specific procedural legislation is exacerbated to a substantial degree by the “value-neutral” presumption that (rightly or wrongly) drives the premise of judicial transsubstantivity. To the degree that legislators

125 See Roderick M. Hills, Jr., The Eleventh Amendment as Curb on Bureaucratic Power, 53 Stan. L. Rev. 1225, 1227 (2001) (describing “the position of elected nonfederal policy generalists—that is, politicians with nonspecialized jurisdiction like mayors, governors, state legislators, city councilors, and county commissioners”); id. at 1238 (arguing for the value of “democratically elected ‘generalist’ politicians”); id. at 1240 (“generalists tend to provide a political culture, a ‘style’ of governing, that is fundamentally different from and, in its place, better than, the bureaucratic style”). Like judges, legislators can also specialize in particular policy areas. See, e.g., Keith E. Hamm et al., Committee Specialization in U.S. State Legislatures During the 20th Century: Do Legislatures Tap the Talents of Their Members?, 11 St. Pol. & Pol’y Q. 299 (2011) (discussing degree to which legislatures tap expertise of individual members in making committee assignments; noting that “the wisdom and expertise needs of collective decision making—that is, specialization—on very complex topics by legislative generalists [is] the raison d’être for a committee system”). Also like judges, however, legislators have the ability—and responsibility—to take action in the full range of substantive areas subject to their oversight. 126 The cost of this effort is likely to be particularly large for legislators in states with “part time” legislatures, since they are often otherwise employed full time and have less time to devote to separate efforts to investigate (let alone to properly assess) the significance of substance-specific procedural changes. In many cases, part-time legislatures also have fewer staff members upon which to depend to conduct such analysis. For a listing of where states fall on the full-time vs. part-time legislature spectrum, see Nat’l Conf. St. Legislatures, Full- and Part-Time Legislatures, http://www.ncsl.org/research/ about-state-legislatures/full-and-part-time-legislatures.aspx (last visited July 9, 2019). 744 Dobbins view procedure as value-neutral, they are tempted to ignore (or at least fail to try to understand) the policy effects of substance-specific procedural changes. As one reformer noted in the 1930s, “procedural reform does not attract the attention of legislators because ‘the only impulse toward procedural reform arises from the general desire of the public to get a better administration of justice,’ and such value-neutral motivations rarely enable legislators to act.”127 Because systemic procedural values rarely serve as the motivating factor in legislation, legislators are almost guaranteed, in adopting substance-specific rules, to give little weight to any systemic costs of substance-specific procedures. Complexity also generates opportunity for rent-seeking behavior at a scope and level that is not generally available in a system where a large number of individuals are all equally familiar with a common procedural regime.128 As Professor Marcus notes, Jeremy Bentham, an early proponent of a transsubstantivity principle, argued that “[s]ubstance-specific procedural rules engender complexity, which … only give judges and lawyers an excuse to enrich them-

127 Trans-Substantivity, supra note 4, at 398–99 (quoting Edson R. Sunderland, The Regulation of Procedure by Rules Originating in the Judicial Council, 10 Ind. L.J. 202, 204 (1935)); see also Processes of American Law, supra note 1, at 1224–26; Briana Lynn Rosenbaum, The Legislative Role in Procedural Rulemaking Through Incremental Reform, 97 Neb. L. Rev. 762, 810 (2019) (“[S]ocial and policy change through procedural litigation reform is less likely to receive public notice.”); Pound, supra note 18, at 31–32: Sir Courtenay Ilbert said that Parliament was not interested in lawyer’s law. It would not keep its hands off, but it had no real interest and was only moved to act on this or that detail as pressed to do without any systematic plan. This is even more true in America today. Today a legislature must deal in a limited time with a large volume of proposals for legislation. Also popularly elected lawmakers nominated by direct primary have more interest in measures attracting public notice than in dry minutiae of legal procedure. Political questions, appropriations, economic questions, the machinery of government, provision for administration and police, social security and welfare, and humanitarian projects must have the right of way. Only matters of procedure urged in the interest of some group with political backing or some member with a particular case in mind and much influence in the house or senate is likely to get a hearing. 128 This is not to say that transsubstantive procedural systems somehow avoid the problem presented when relatively narrow-minded interests are able to change the nature of the underlying system. See Brooke Coleman, One Percent Procedure, 91 Wash. L. Rev. 1005 (2016) (describing, and pointing out problems with, control over Federal Rule reform by “one percent” of uniquely affected rulemakers). Vol. 12, No. 2 Northeastern University Law Review 745 selves needlessly at the expense of overall utility.”129 When “niche” procedures develop, it creates an opportunity for specialists to take advantage of the transaction costs associated with learning new procedures, and to extract additional benefits from the system that they might not be able to extract if procedures were generally known to most participants in the legal system. While new substantive areas of the law also require investments of time to learn, a system that utilizes a transsubstantive procedure at least allows those efforts to be limited to substantive law, rather than requiring effort to learn new procedures as well. A similar risk of rent-seeking can be expected in legislative activity that functions outside of a presumption favoring procedural transsubstantivity.130 In the legislative process, special interest groups seek opportunities to maximize their interests,131 and generalist legislators are not well-positioned to independently develop the legal or policy-based knowledge necessary to challenge interest group efforts to maximize those opportunities; rather, they rely on interest groups to supply that information.132 The point is

129 Trans-Substantivity, supra note 4, at 385 (citing Jeremy Bentham, Scotch Reform, in 5 The Works Of Jeremy Bentham 1, 3, 5–6 (John Bowring ed., 1843) (1808)). 130 Concern about the ability of legislatures to adequately manage procedure was part of the motivation for Charles Clark’s desire to drive the development of the Federal Rules through expert court-based rulemaking, rather than legislative processes. See Trans-Substantivity, supra note 4, at 395 (Clark believed that “legislative control over procedure had led to ‘indifference and political manipulation’”). 131 See, e.g., Franklin G. Mixon & M. Troy Gibson, The Retention of State Level Concealed Handgun Laws: Empirical Evidence from Interest Group and Legislative Models, 107 Pub. Choice 3 (2001) (“The interest group theory of government is based upon the assumption that all legislation has the intended goal of benefitting some particular group, and that the benefits will flow towell organized, politically powerful interest groups from either relatively less powerful groups, or unorganized individuals.”); Larry E. Ribstein & Bruce H. Kobayashi, An Economic Analysis of Uniform State Laws, 25 J. Legal Studies 131, 142 (1996) (“Under the economic theory of interest groups, legislators may pass inefficient laws that benefit small but concentrated interest groups that can organize relatively cheaply at the expense of larger but more dispersed groups that have higher organization costs.”). 132 See Koppel, supra note 10, at 1205 (“Too often, the vacuum left by the absence of empirical data [regarding procedural reform] is partly filled by political influence of the plaintiff’s or defense bar on policymakers, leaving unrepresented the interests of potential litigants who lack direct access to the rulemaking process.”); Pound, supra note 18, at 32 (“Only matters of procedure urged in the interest of some group with political backing or some member with a particular case in mind and much influence in the house or senate is likely to get a hearing.”); Cass R. Sunstein, Congress, Constitutional Moments, 746 Dobbins not so much that interest groups are deceiving legislators; the literature suggests little evidence for such efforts.133 Rather, it is entirely possible (particularly when it comes to procedural mechanisms for achieving policy goals) that a significant part of the policy effect associated with a particular legislative substance-specific procedural change may be hidden, rather than apparent on the face of the legislation. In any event, the net result is that legislatively-driven substance-specific procedural reform may result in, at best, the inefficient embellishment of a preexisting transsubstantive system and, at worst, the imposition of unanticipated costs.134 Even more importantly, it is unlikely that special interest groups or supportive lobbyists—all of whom are already steeped in the particulars of a given substance-specific legislative proposal—are thinking carefully about the costs of abandoning principles of transsubstantivity. The risks and costs associated with increased complexity—including the confusion, barriers to entry, risk of error, and potential for unanticipated effects that come with such changes—are an indirect consequence of a particular substance-specific proposal, and few interest groups are likely to lobby against a particular substance-specific proposal simply in order to defend the sweeping

and the Cost-Benefit State, 48 Stan. L. Rev. 247, 286 (1996) (“Legislators are generalists, not specialists, and they have many issues to address. They lack expertise in particular areas. They are also subject to intense political pressures that can favor “lowest common denominator” solutions.”). A variety of theories about special interest groups and lobbyists take different perspectives on the precise model that should be thought of as motivating lobbyists. See, e.g., Richard L. Hall & Alan V. Deardorff, Lobbying as Legislative Subsidy, 100 Am. Pol. Sci. Rev., No. 1 at 69, 70–73 (2006) (arguing for a “lobbying as subsidy” model, but articulating other models). In the end, though, these various theories recognize that legislators are, broadly speaking, more “generalist” than “specialist,” that this asymmetry in knowledge, in combination with complexity, means that legislators are generally at the whim of special interest groups in making decisions about the likely value and effects of proposed legislation.See id. at 73 (establishing assumption that “[r]elative to legislators, lobbyists are specialists”; “Whereas most legislators simultaneously care about multiple issues, a lobbyist focuses on relatively few. The lobbyist thus has greater issue-relevant experience, expertise, and time to invest in assisting legislators.”); see also id. at 74 (“Acquiring and assimilating … information poses a budgetary problem for the legislative enterprise. Fortunately for legislators, lobbyists are specialists…. They analyze, synthesize, and summarize-in a politically user-friendly form, information to promote the policy goals that their group and the legislator share.”). 133 Id. at 75 n.9. 134 See Mullenix, Judicial Power, supra note 78, at 755. Paul Carrington noted that Congress effectively acknowledged this risk when it vested responsibility for federal rulemaking “under the institution it perceived to be least responsive to interest group politics.” An Exorcism, supra note 5, at 2075–76. Vol. 12, No. 2 Northeastern University Law Review 747 values represented by maintaining transsubstantivity principles in the legal system.135 On the other hand, if courts impose a principle of legislative transsubstantivity at the back end of the legislative process, such involvement would provide a mechanism for allowing interests that favor transsubstantivity to be represented (albeit belatedly) in the legislative process.136 Given that courts and attorneys are the ones who are most likely to directly experience the adverse effects of complexity and interference with transsubstantive principles, courts are in a uniquely good position to assess the costs and benefits of procedure. Legislators, by contrast, are in a relatively poor position to make accurate assessments of those costs and benefits. The relative institutional competence of courts on this question offers another

135 While some substance-specific procedural legislation generates vigorous legislative fights, other substance-specific procedural reform may not. Substance-specific changes that are intended to address a new area ofthe law, or make minor modifications to existing substantive law, may well have concentrated benefits but (at least with respect to its impact on the overall transsubstantive system) diffuse costs. As a result, that kind of substance- specific procedural change is a classic type of “client politics” law that, while easily enactable, can also be “normatively bad” because of the lack of incentives to oppose it. See Coleman, supra note 128, at 1058–60 (discussing James Q. Wilson’s typology of law making and regulation). As Professor Coleman explains: Civil procedure is important to those that are paying attention, but it does not garner attention to the degree that many substantive legal developments do. Indeed, it is an area that, while not completely veiled, is less prominently considered by the public. In this way, procedure is much like Wilson’s client politics laws. It is “less conspicuous” than other legal topics; those who stand to gain the most are behind, and receive the concentrated benefits of, many procedural developments, while the rest of the civil litigation system and its players are together bearing the diffuse costs. Id. at 1060. 136 This is not to say that courts are currently irrelevant players in the legislative process. As Professor Marcus notes, “[t]he lobbying arm of the federal judiciary—the supposed beneficiary of the procedural reform [offered by the PLRA]—offered mild opposition to the statute.”Trans-Substantivity , supra note 4, at 404–05 (citing Reports of the Proceedings of the Judicial Conference of the United States 64–65 (1995) (report of September 1995 meeting)). Similarly, Professor Burbank documents the effort that the federal judiciary, at least, expends to monitor proposed federal legislation that might impact procedure. Procedure, Politics and Power, supra note 10, at 1701–02; see also John Burritt McArthur, Inter-Branch Politics and the Judicial Resistance to Federal Civil Justice Reform, 33 U.S.F. L. Rev. 551, 594 (1999) (documenting the judicial system’s opposition to the Civil Justice Reform Act). 748 Dobbins reason why a principle of legislative transsubstantivity should apply to judicial decision making. In his defense of transsubstantivity in 1987, Professor Car- rington hinted at the value that a premise of legislative transsubstantivity might bring. While noting that occasional substance-specific legislation might be appropriate, Carrington also wrote that there are “reasons for Congress to proceed cautiously” in adopting such substance-specific procedural reform:

First, it is difficult to foresee the secondary institutional consequences or the consequences for groups not represented at a legislative hearing of a special procedural arrangement. Second, Congress faces the risk that such an arrangement may in time create complexity that transforms the process into one preoccupied with procedural miscue rather than enforcement of the substantive laws that Congress has written. Finally, there is a longer-term risk that not only Congress but even the judges will lose their feel for the values of procedural justice that are the core of the present rules.137

B. The Application of Legislative Transsubstantivity to Legislative Action Given the arguments for legislative transsubstantivity, how much work should the doctrine do in our legal and political processes? The weak version of the argument for legislative transsubstantivity is that courts should simply continue doing what they are doing now—they should review ambiguous legislation and close calls regarding whether to apply substance-specific procedures with an eye toward favoring transsubstantive procedures instead. Arguably, this judicial skepticism about substance-specific procedure is merely another form of judicial transsubstantivity—and effectively just an application of the institutional allocation of power argument that Marcus advocates.138 At the same time, however, any case involving

137 An Exorcism, supra note 11, at 2086. This is as close an acknowledgement of a legislative transsubstantivity principle as I have come across in the academic literature. 138 In the conclusion to his 2010 article, Professor Marcus points out that “[t]he trans-substantivity principle would also operate to constrain judicial construction of nominally trans-substantive rules.” Trans-Substantivity, supra note 4, at 423. Professor Marcus suggests that regardless of the validity of transsubstantivity as a normative model, it is a useful tool for helping court- adjacent rulemakers to stay in their “constitutional lane,” so to speak, by Vol. 12, No. 2 Northeastern University Law Review 749 the application of transsubstantive procedural rules will necessarily arise out of a substance-specific context. Where statutes are at issue, an argument might be made (as in the PLRA cases) that the statutory scheme demands adoption of a substance-specific interpretation of an otherwise transsubstantive rule. Resisting such a call might be viewed as an application of judicial transsubstantivity principles, but it also might be characterized as an application of what I call “legislative transsubstantivity.” If courts were to recognize this presumption when making these decisions and acknowledge its importance, they might be able to not only be clearer and more efficient in their decision making, but also help call attention to the principle of transsubstantivity that underlies those decisions so that it can be more directly addressed by advocates, judges, and commentators. A more vigorous argument might be made, however, for the extension of this kind of transsubstantive principle into the action of legislatures ab initio. First, this may naturally happen as a result of the mild form of legislative transsubstantivity described in the last paragraph: Legislators considering the adoption of substance-specific procedures would need to take into account a judicial “clear statement” rule that preferred the retention of transsubstantive procedures. This is a natural carryover that would flow from the application of a judicial presumption favoring legislative transsubstantivity, and does not in itself suggest an obligation on the part of legislative actors to adopt (or retain) transsubstantive legal processes. An even more robust version of this argument would argue for a legislative norm that would—even in the absence of judicial interpretation—push legislators away from substance-specific procedure and toward transsubstantivity. At first glance, the argument for such a norm might seem absurd—and certainly not representative of current practice. After all, despite the long-standing vocal support for transsubstantive procedure, legislatures have also long been actively adopting substance-specific procedures in areas of (for instance) medical malpractice, landlord-tenant law, and family law.139 At the same time, however, the idea that legislatures might conform to a norm that permits judicial control over procedure should not be that unusual. Congress has occasionally characterized the “‘true balance’ between courts and Congress in procedural rulemaking as one in which the judiciary has a cooperative if not primary role to play, indicat[ing] at the very least that Congress adopted the Rules Enabling Act with the perceived need to respect the judiciary’s au-

avoiding any temptation to adopt substance-specific rules.See id. at 416–421. 139 See, e.g., sources cited supra note 4 (setting forth sources discussing recent examples of such substance-specific legislation). 750 Dobbins tonomy in mind.” 140 A norm of legislative transsubstantivity would help to reinforce the independent role of the courts within our constitutional system. To the degree that the legislature adopts a norm that restrains itself from imposing substance-specific procedures on our legal system, it (in Geyh’s words) “underscores the important role that Congress plays in defining the contours of judicial independence.”141

C. Legislative Transsubstantivity and Due Process Although it may seem radical to impose a transsubstantivity principle on legislative behavior, the imposition that I suggest is not likely to seriously interfere with a determined legislative effort to adopt new substance-specific procedures. Many of the substance-specific procedures adopted over the course of the last several decades, including the PLRA, PSLRA, procedures specific to medical malpractice cases in the states, etc., are all examples of cases in which the heart of the proposed substance-specific changes would likely survive even a “clear statement” rule. Legislatures desiring other changes could impose on them sufficiently well-written statutes, and so, while the rhetorical attention to transsubstantivity that I advocate here would still provide some benefits, such attention to transsubstantivity would ultimately do little to interfere with legislatively-driven, substance-specific, procedural reform. As discussed below, such an outcome is to be expected in a system that allocates rulemaking authority to both courts and legislators. There is, however, one additional circumstance in which courts might choose to impose an even more rigorous test on substance-specific legislative enactments—a test that might actually limit the ability of a legislature to adopt substance-specific changes or, at least, limit the legislative ability to do so for poorly-justified reasons. In particular, in circumstances where a party is able to marshal a Due Process or Equal Protection based challenge to the adoption of a substance-specific procedural change, a very strong version of the legislative transsubstantivity principle could lead courts to impose relatively high burdens on legislative enactments that adopt sweeping legislative changes to transsubstantive rules. This test might manifest itself in the judicial process as an intermediate scrutiny test (or, at the very least, as heightened rational basis review).142

140 Charles G. Geyh, Judicial Independence, Judicial Accountability, and the Role of Constitutional Norms in Congressional Regulation of the Courts, 78 Ind. L.J. 153, 207 (2003). 141 Id. at 165. 142 In some ways, this obligation might be seen as a soft version of the obligation that federal courts impose on Congress in examining whether Vol. 12, No. 2 Northeastern University Law Review 751

Such a test might be justified based on the targeted and disparate impact that innovative substance-specific procedures might have on particular parties. At least one prior case suggests the validity of this kind of heightened review. At issue was the Price-Anderson Nuclear Liabi- tity Act.143 In Duke Power v. Carolina Environmental Study Group, Inc.,144 the environmental plaintiffs argued for an intermediate standard of review in their Due Process challenge to the Price-Anderson Nuclear Liability Act’s liability limitations, which imposed a wide range of substance-specific procedures on the prosecution and management of claims related to nuclear power plant disasters, and included a significant financial cap on the recovery of damages arising out of such a nuclear incident (with only general promises of Congression- al redress in the event that the cap was exceeded).145 In Duke Power, the Court rejected the challenge, finding that the Act was “a classic example of an economic regulation,” and entitled to a presumption of constitutional validity.146

abrogation of state sovereign immunity under the Fourteenth Amendment is adequately backed by legislative findings. See City of Boerne v. Flores, 521 U.S. 507, 530–32 (1997) (concluding that Congressional findings did not adequately support proposition that generally applicable state and local laws “passed because of religious bigotry,” and therefore that Religious Freedom Restoration Act’s remedial scheme was not “congruent” and “proportional” to a set of constitutional violations under the Fourteenth Amendment). This is not to say that such findings should be overwhelmingly difficult to articulate; the test I advocate is not necessarily as strong as, say, “hard look” arbitrary and capricious review under the Federal Administrative Procedure Act—but simply that legislatures should articulate not only the substantive policy justification for adoption of the new process, but also factual findings supporting the conclusion that those policies will, in fact, be resolved by the substance-specific procedure at issue. 143 See Jeffrey C. Dobbins, Promise, Peril, and Procedure: The Price-Anderson Nuclear Liability Act, 70 Hastings L.J. 331 (2019) (discussing unusual procedural innovations in the Price-Anderson Act, enacted initially in the late 1950s to cap liability for civilian nuclear power facilities in order to promote the development of a civilian nuclear power industry). 144 438 U.S. 59, 83 (1978). 145 See generally Dobbins, supra note 143. The Court’s decision in Duke Power was reached before many of the most significant procedural innovations had been added to the Act through amendments adopted in 1988. Under one of those provisions, for instance, Nuclear Regulatory Commission determinations regarding the existence of an “extraordinary nuclear occurrence” that triggers many of the most significant procedural innovations of the Act are unreviewable. Id. at 355–56 (discussing non-reviewability provisions of 42 U.S.C. § 2014(j)). 146 438 U.S. at 83. 752 Dobbins

Notably, however, the Court did not explicitly reject the plaintiffs’ argument that they were entitled to a higher standard of review. Rather, the Court seemed to suggest that Congress was obli- gated to at least articulate reasons why proposed procedural changes were “a fair and reasonable substitute for” legal relief available under the status quo.147 Whether this test is considered a rational basis analysis or something more significant, a rigorous interpretation of that obligation could force legislatures to give some careful thought to why particular procedural innovations are necessary, and to articulate those changes in the form of legislative findings. As with other forms of heightened-yet-not-extraordinary scrutiny, this test may not ultimately be particularly difficult for legislatures to pass, but it would at least impose on legislative actors an obligation to take some care before adopting significant substance-specific procedural reform.148 Although some might suggest that this kind of scrutiny is unusual, it imposes on legislatures an obligation that is symmetric to Marcus’ suggestion that courts adopting a nominally transsubstantive (but actually substance-specific) rule would lose any presumption of validity if the rule had a “particularly marked impact” on a given substantive area of the law.149 The flip side of this argument is that while legislatures have the ability to enact legislation that has a “particularly marked impact” on a given area of law, the legislature should be required to clearly articulate, and set out findings regarding, that impact. Absent some kind of fact-based conclusion that the justifications for the changes are rooted in factually-grounded findings, skepticism regarding the rationality of procedural innovation would be warranted. Ultimately, intensive review of legislative rationales can help to maintain the constitutional barrier between the exercise of the

147 Id. at 91. The Court indicated that this showing had been accomplished in the case of the Price-Anderson Act, but in so doing, suggested that such a showing was at least sufficient to meet constitutional dictates; there is a good argument that in a system of heightened scrutiny, such a showing is necessary to meet those dictates as well. 148 See also supra text accompanying notes 135–38. Parties seeking to challenge such reform would, of course, need to identify the underlying Due Process property right being lost. Cf. Duke Power, 438 U.S. at 94 (Stewart, J. concurring) (noting the obligation to identify which property rights have been deprived, and questioning whether the alleged deprivation in that case—“a state created right to recover full compensation for tort injuries”—was in fact a deprivation under the facts of that case). This limitation would constrain the number of cases in which this kind of strong legislative transsubstantivity argument would have merit. 149 See Trans-Substantivity, supra note 4, at 423. Vol. 12, No. 2 Northeastern University Law Review 753 judicial and legislative branches.150 This barrier is, of course, quite vague and permeable: it is difficult to define the line between substance and procedure; even “procedural” enactments have substantive effects; and most substantive effects can be achieved through means that are either procedural or substantive. In the end, however, the judicial preference for transsubstantive procedure helps to properly define not only the institutional role of the judiciary vis- à-vis the legislative branch, but it helps to reinforce the judiciary’s role in procedure (an area in which it has significant expertise, and in which legislators are often relatively inexperienced). Professor Burbank suggests that “Congress holds the cards— that it has virtually plenary power over federal procedure.”151 This is likely true for most state legislatures as well, at least to the degree that state courts have not attempted to exercise a separation-of-powers based constitutional argument to defend procedure (i.e., “the judicial power”) from legislative control. It may be that this fundamental truth means that there is little to be done against concerted legislative efforts to impose substance-specific procedure on our legal system. At the same time, however, encouraging courts to apply principles of transsubstantivity to legislative enactments would help to defend transsubstantive values—which both critics and supporters acknowledge—against at least the casual complexification of procedure that can result when legislators are able to adopt sweeping substance-specific laws without any systemic pushback at all.152

D. Limits on Legislative Transsubstantivity Although I have made the case here for recognizing, and even extending, the principle of legislative transsubstantivity, it is important to recognize that such an approach would not ultimately prevent legislatures from adopting substance-specific procedures. First, of course, it would make little sense to try and impose

150 Professor Marcus concludes that transsubstantivity is effectively a fence that the courts use as a marker to identify the kinds of procedural decisions that courts can appropriately make under our constitutional system. Trans- substantivity, supra note 4, at 416 (noting that, ultimately, transsubstantivity may be viewed as “a theoretically problematic but functionally useful principle for the allocation of rulemaking power among various institutions”). That fence has two sides, however, and my proposal suggests that transsubstantivity principles may well have a place on both sides. 151 Procedure, Politics and Power: The Role of Congress, supra note 3, at 1706. 152 The tendency of legislatures to “burden a simple code with detailed amendments” and “procedural monstrosities due to legislative tinkering and elaboration” was a common theme for reformers advocating for the adoption of the Rules Enabling Act. Trans-Substantivity, supra note 4, at 396 n.152 (internal citations omitted). 754 Dobbins a rule barring legislatures from enacting substance-specific procedures. As an initial matter, it would be difficult to argue for any kind of judicial authority to impose such limits.153 Second, the permeability of the barrier between substance and procedure would make it difficult to decide where courts would draw such lines. Finally, and perhaps most importantly, that same permeability means that legislatures barred from achieving particular policy goals through substance-specific procedural enactments can achieve them more directly through substantive enactments adopting and modifying causes of action, establishing standards particular to such causes of action, or through explicit caps or damages rules that impose policy limits on the exercise of particular legal rights.154

153 Some courts and commentators have articulated constitutional separation-of- powers limits on the ability of legislatures to interfere with judicial process. Relying on a judicial construction of the “judicial power” (and, in some cases, explicit grants of rulemaking authority to the judicial branch), such constitutional limits have primarily been wielded against direct legislative interference in judicial decision making. Congress cannot, for instance, direct the outcome of a pending dispute without changing the law underlying that dispute. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–19 (1995); Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440–41 (1992). It is not difficult, however, to imagine courts taking such an argument further, claiming that more traditional forms of “process” (such as pretrial operations, and perhaps even rules regarding reviewability) are within the scope of the judicial power rather than subject to plenary legislative control. See, e.g., Unconstitutional Rulemaking, supra note 78, at 1316–22 (discussing such an argument as applied to a federal statute); Thomas O. Main, Reconsidering Procedural Conformity Statutes, 35 W. St. U.L. Rev. 75, 83–85 (2007). Such an approach would be a plausible foundation upon which to build a constitutionalized legislative transsubstantivity principle, since it would leave rulemaking to courts, and institutional legitimacy arguments would (barring innovation) then drive courts to transsubstantive, rather than substance- specific, rules. One significant defender of a strong version of judicial rulemaking prerogative as a version of a constitutional argument is Professor Linda Mullenix, who has written that: [a] judiciary that cannot create its own procedural rules is not an independent judiciary. Moreover, a judiciary that constitutionally and statutorily is entitled to create its own procedural rules, but must perform that function under a constant cloud of congressional meddling and supercession, is truly a subservient, non-independent branch. Judicial Power, supra note 78, at 734. That said, Professor Mullenix does not advocate for exclusive judicial control over procedure, but a less-than- exclusive, not wholly dominant role for legislatures in procedural rulemaking. Id. at 745. 154 As Professor Marcus notes: [R]ecent statutory developments have imperiled trans- Vol. 12, No. 2 Northeastern University Law Review 755

Second, none of the proposals I offer would ultimately impose an impassable barrier to political actors who are convinced of the need for substance-specific legislation. Judicial skepticism in circumstances where substance-specific statutes are unclear can be overcome with clear statutory language. Legislative skepticism about the need for substance-specific legislation can of course be trumped by sufficiently persuasive factual and political arguments. And even the most significant hurdle—the proposed “heightened scrutiny” in due process cases alleging that a substance-specific procedure has deprived a plaintiff of a property right—can be overcome with sufficiently well-reasoned and supported legislative findings. Finally, I recognize that implementing these principles of legislative transsubstantivity in the judicial and legislative systems will require some of the same difficult assessments that have long plagued this area of the law, such as the question of when a particular substance-specific legislative enactment is “procedural” and deserving of judicial skepticism, rather than “substantive” and within the core of legislative responsibilities. Much ink has been spilled on these questions, and I will not resolve them here. But those questions are likely to survive even in the absence of the proposals I offer in this Article, and are therefore not an impediment to implementing these proposals.

Conclusion I recognize that in an era where many have disclaimed any real reliance on traditional notions of transsubstantivity, there is some irony in the suggestions this Article offers. After all, much of the resistance to the wholesale implementation of a transsubstantivity principle in the early 1900s was the result of a lingering resistance of those who believed in the value—and necessity—of traditional forms of the cause of action. As Marcus notes, for instance, many textbooks in the early decades of the 1900s continued to teach the common law pleading system and perpetuate the “common law

substantivity as a central plank in the foundation of American civil procedure. Most prominently, legislatures have enacted mixed packages of procedural and substantive reforms, including particularized pleading rules for medical malpractice, securities, and prisoner litigation. The embrace of substance-specific procedure highlights the brittleness of trans-substantivity’s theoretical underpinnings. An insistence on a dichotomy between substance and procedure rings hollow when legislatures use procedural and substantive measures as functionally indistinguishable tools to pursue an undivided set of policy goals. Trans-Substantivity, supra note 4, at 374. 756 Dobbins mentality.”155 Reformers spent much of those years on “closing the entry points through which the forms of action had crept back into the code reforms.”156 The system’s lingering attachment to an abandoned philosophy, despite clearly-articulated reasons to abandon common law pleading, delayed adoption of the Rules Enabling Act and the Federal Rules for years.157 Critics of transsubstantivity might similarly argue that any reinforcement of transsubstantivity principles like that argued for in this Article similarly threatens to interfere with the efficient abandonment of an “old fashioned” view about the importance of transsubstantivity in our current legal system.158 That argument may have particular force to the degree that this Article advocates not only for merely acknowledging, but actually expanding, the role of a legislative transsubstantivity principle. The irony is noted, but in the end, I believe that legislative transsubstantivity has an appropriate place in our legal system. First, of course, the arguments set out above make a case for the value of transsubstantivity as applied in the legislative context. Second, while legitimate concerns might be raised if such a principle were deemed to bar legislatures from enacting any substance-specific procedures, this Article does not suggest such an absolutist approach.159 Rather, the arguments set out in this Article simply make it harder for such substance-specific procedures to be adopted casually in the first instance, and provide a principled mechanism for a skeptical analysis of the meaning and application of arguably (but not clearly) substance-specific procedures. Legislatures that are adequately convinced of the need for such procedures can adopt statutes using plain language to which courts should ultimately adhere. Even in the

155 Id. at 393–94. 156 Id. at 394. 157 Id. at 391–93. 158 That said, even transsubstantivity’s critics acknowledge that “[n]o one I know is suggesting a return to the forms of action or a wholesale rejection of trans-substantive procedure. Some of us, however, are suggesting that it is time both to face facts, in particular the fact that uniformity and transsubstantivity rhetoric are a sham, and to find out the facts, in particular the facts about discretionary justice.” Procedure, Politics, and Power, supra note 10, at 1712 n.162. 159 I accept the proposition that “[i]f lawmakers cannot depart from the transsubstantive norm to address … dysfunctions [in transsubstantive procedure], they must either let these dysfunctions fester, or they must remedy them with an over-inclusive trans-substantive response that applies unnecessarily to processes involving other antecedent regimes.” Processes of American Law, supra note 11, at 1221. Vol. 12, No. 2 Northeastern University Law Review 757 rare cases when substantial legislative innovation gives rise to Duke Power-like due process challenges, clearly stated legislative findings should be enough to permit such innovative processes to survive judicial scrutiny. Third, I would suggest that when it comes to the implementation of legal policy and reform, simpler is better—or, at least, that simplicity carries with it a systemic value that is too easily lost in arguments about the newest and most impressive substance-specific procedure targeted to a particular narrow area of the law. Some of the most compelling rationales for applying transsubstantivity principles arise out of the costs of complexity in the legal system. These costs can only be avoided through a careful assessment of the systemic costs imposed by a proliferation of substance-specific procedures complicating an already complex system. While there may well be particular procedures that can improve efficiency in a particular substance-specific area when viewed narrowly, the adoption of such substance-specific procedures only rarely involves a careful consideration of the costs that such principles impose on the system writ large—the cost imposed on generalist judges, lawyers, legislators, and even individual parties who will necessarily be required to learn about and implement substance-specific procedures. I acknowledge the value that appropriate substance-specific procedures can create in terms of improving efficiency in particular areas of the law, and therefore the costs that a strong transsubstantivity principle might impose on the judicial or legislative development of procedure. This potential lost value that might result from imposing an excessively strict transsubstantivity principle on the development of procedure justifies the criticisms that have been levied against an overarching “super” transsubstantivity of the kind that idealistic early supporters of the Federal Rules might have championed. This does not mean, however, that we should altogether abandon principles of transsubstantivity.160 As discussed above, the presumption is already embedded into a variety of judicial decision rules. In theory, at least, a transsubstantive system is less complicated, easier to understand, and simpler to explain for everyone in the legal system than a system that looks to different procedural rules depending on what substantive right is being enforced. While it is worth acknowledging the flaws in the existing system, as well as the degree to which the system already deviates from the Platonic mod-

160 Nor, as a practical matter, do the most vocal critics of transsubstantivity. See id. at 1221–22; see also Limitations, supra note 3, at 404 (explaining how, even under a proposed “simple track” procedure for certain cases in the federal system, “[t]ranssubstantivity remains the underlying norm.”). 758 Dobbins el of a uniform set of transsubstantive procedural rules, that model continues to have significant force in the legal community, in the political branches that help to define the legal system being disputed and applied, and in the mind of the public that interacts with that legal system. Starting with transsubstantivity as a baseline principle, then, seems not unreasonable. After all, even under the enhanced version of the presumption argued for in this Article, legislatures should be fully able to lay out clear statements that support the application of substance-specific procedures when justified by policy goals. By encouraging judges, lawyers, and legislators to think more carefully about the justifications for substance-specific procedures, the enhanced presumption favoring transsubstantivity will help to avoid the risk of “casual” substance-specific procedural reform—that is, the adoption of procedural reform without the kind of careful drafting of positive law (and supporting findings) that might accompany a system in which legislative substance-specific procedural changes were subject to no oversight at all.161 In this emphasis on the obligation of legislatures to think carefully about the consequences of procedural reform, this Arti- cle’s call to acknowledge and implement skeptical review of substance-specific legislation overlaps with the remedy proffered by some critics of the transsubstantive premise. As Professor Burbank noted in his argument for an abandonment of transsubstantivity in favor of more substance-specific procedures:

An objection to a strategy of reform of this sort not likely to be stated, but very powerful, is the objection that it would require procedural reformers to become conversant with the substantive law, or at least to work with those who are so conversant. It would thus have obvious and potentially far-reaching professional and political implications, threatening myths of expertise on the one hand and of legitimacy on the other. Effective procedural reform will not come from a small group of ‘experts,’ nor will it come

161 As I have argued in prior articles, legislative changes to systems of appellate review have generally done a poor job of anticipating the significance of those changes to principles of precedent and standards of review. See, e.g., Jeffrey C. Dobbins, Changing Standards of Review, 48 Loy. U. Chi. L.J. 205 (2016); Jeffrey C. Dobbins, New Evidence on Appeal, 96 Minn. L. Rev. 2016 (2012). It is not too much to expect that legislatures think about (and clearly articulate an intended resolution of) these issues before adopting new procedures. Imposing such an obligation on legislatures would do much to avoid unnecessary litigation and judicial confusion. Vol. 12, No. 2 Northeastern University Law Review 759

from the Supreme Court alone. We need partnerships in determining how the field should be carved up for study, in studying it, and in implementing proposed reforms. Existing projects furnish possible models for the work, and we need to think about other models. We also need to show more respect, if not for Con- gress, then for democratic ideals that we elsewhere profess.162

Under both Professor Burbank’s suggestion and the one in this Article,163 any effort to initiate procedural reform would need to be preceded by careful and effective consideration of the interaction between procedure and substance. If the last several decades of civil procedure have taught us anything, it is that the empirical consequences of procedural reform are important to know, yet complicated and difficult to predict in advance (not to mention difficult to measure after they are implemented).164 While both transsubstantive and substance-specific procedural experimentation should be encouraged—improvements can always be made, and they likely will need to be made as the nature of litigation in our legal system changes over time—that experimentation can be effective and advance systemic goals only after careful consideration and evaluation of the consequences of the proposed changes. In my view, an important way to encourage such careful consideration of the consequences of procedural reform is by acknowledging and encouraging judicial

162 Of Rules and Discretion, supra note 3, at 718 (cleaned up). 163 Professor Subrin offers a similar suggestion for targeted substance-specific procedural reform (or, at least, substance-specific procedural guidance), suggesting that in appropriate circumstances such changes might be considered by groups appointed by the Rules Advisory Committee to evaluate the goals and likely impacts of such changes. See Limitations, supra note 3, at 405. Notably, both Subrin and Burbank’s suggestions for reform seem to focus on the role of careful planning and research for court-adjacent substance- specific rulemaking. This makes sense, of course, since the principles of transsubstantivity have in the past been almost exclusively applied to that court-adjacent process. The proposals in this Article might be viewed as proposing something of a mirror image of those suggestions for the adoption of substance-specific procedural reform, but in the legislative process, rather than in the judicial process. 164 For important discussions—and examples—of the need for such empirical work, see, e.g., Simplified Procedure, supra note 32, at 173; Koppel, supra note 10, at 1205; Burbank, supra note 72, at 1963; Maurice Rosenburg, Federal Rules of Civil Procedure in Action: Assessing Their Impact, 137 U. Pa. L. Rev. 2197, 2198 (1989) (“[T]there is a disappointing paucity of reliable data on how the Rules have worked.”). 760 Dobbins pushback against substance-specific procedural change in the legislative process. For that reason, perhaps most of all, the courts—and legislators seeking to implement procedural change—should embrace and be guided by a principle of legislative transsubstantivity.